text:
    Kendrick Lamar WILLIAMS a/k/a Scooter, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00504-COA.
    Court of Appeals of Mississippi.
    Aug. 23, 2011.
    Rehearing Denied Dec. 6, 2011.
    Certiorari Denied March 8, 2012.

      Cynthia A. Stewart, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. Kendrick Lamar Williams was convicted in the Pike County Circuit Court of armed robbery and aggravated assault. The circuit court sentenced him to life and twenty years, respectively, with the sentences to be served concurrently in the custody of the Mississippi Department of Corrections. Feeling aggrieved by his convictions, Williams appeals and alleges the following as error: (1) the refusal of a challenge for cause of a juror; (2) the State’s use of testimony that Williams’s codefendants had pleaded guilty and trial counsel’s failure to object to that testimony; (3) the State’s use of an extraneous bad act and trial counsel’s failure to object to that evidence; (4) the State’s use of a witness’s prior statement and trial counsel’s failure to object to the statement or request a limiting instruction; (5) prosecu-torial misconduct and trial counsel’s failure to object to the prosecutor’s remarks; (6) the circuit court’s refusal of a defense jury instruction on the credibility of accessories; and (7) cumulative error.

¶ 2. Finding no reversible error, we affirm the circuit court’s judgment.

FACTS

¶ 3. Detective Jeff Honea, with the Pike County Sheriffs Department, testified that he was working as an investigator on April 11, 2009, when he received a call about a shooting at Club Tatiyana on Highway 48 in Pike County, Mississippi. Once on the scene, Detective Honea learned that Eddie Lewis, the owner of Club Tatiyana, had been shot at and robbed. After speaking to Lewis and other individuals, Detective Honea came to the conclusion that Williams was the perpetrator. Detective Honea eventually questioned Williams, who admitted being at Club Tatiyana on the night of the shooting. Williams told Detective Honea that there were three people with him on the night of the shooting: Aris Joseph, Jodenzo Thompson, and Deidre Bonds. Detective Honea testified that Joseph, Bonds, and Thompson were charged as accessories after the fact because they were aware that Williams had shot Lewis and then helped him flee the scene of the crime. During cross-examination, Detective Honea stated that he had difficulty establishing an exact timeline of the shooting, as different witnesses recalled events happening at different times.

¶ 4. Thompson testified that he and Williams were at Club Tatiyana to shoot dice. Thompson indicated that Joseph and Bonds were at the club but that they were not shooting dice. Thompson testified that Williams began losing money and as a result, had a heated exchange with Lewis. Thompson explained that Lewis was the owner of the club and was “housing the game,” rather than playing dice. Thompson testified that he, Williams, Bonds, and Joseph left the club at approximately 2:00 a.m. At that time, Lewis was the only person left in the club. Thompson stated that Williams was still angry and was complaining about losing money as they drove away from the club. Thompson testified that they had just pulled out of the club’s parking lot when Williams asked Bonds, who was driving, if she could stop the vehicle and open the trunk. Bonds stopped, and Williams exited the vehicle. Williams then retrieved something from the trunk; moments later, Thompson observed Williams run toward the club, and he then heard gunshots. Shortly after hearing two gunshots, Thompson watched Lewis run across the street, away from the club. Thompson testified that Williams reentered the vehicle soon after that. Thompson observed that Williams had a pistol; Williams told the occupants of the car that he had been trying to get money from Lewis but that his gun had jammed, and Lewis had fled. Williams asked Bonds to drive away, and Bonds complied. Joseph also testified at trial, and his testimony was largely consistent with Thompson’s testimony.

¶ 5. After Thompson and Joseph testified, Lewis took the stand and described the shooting and robbery to the jury. Lewis testified that he observed Williams playing dice on the night of the shooting. When Lewis noticed that Williams was losing money and having arguments, Lewis approached him and said, “if you came here with your diaper money, you shouldn’t have came [sic] here.” Lewis testified that he said this to Williams in an effort to calm Williams. Except for speaking to Williams, Lewis’s recitation of events was consistent with that of Thompson and Joseph.

¶ 6. Lewis testified that he was locking the front door to his club when he heard someone ask what time it was. Lewis looked up and saw Williams standing near him. Lewis then testified about what happened next:

[LEWIS]: Well, as he came up to me, he had just like a bandana over his mouth, like.
* * *
[PROSECUTOR]: So, whenever the defendant came up to you, again, what did he say to you?
[LEWIS]: He said, you know[,] what time it is, you know what time it is. He said that at least three times or more, you know. You know what I’m saying. He said, give it up, you know. You know what time it is, give it up.
[PROSECUTOR]: And what did he mean when he said give it up?
[LEWIS]: He was talking about money. He was talking about money.
[PROSECUTOR]: Okay. What did he have in his hand?
[LEWIS]: When he came toward— when he came around the corner of the building, all I could see was the bandana over his face[,] and I just saw him holding his hand up in the air like this. It looked like a black gun, you know. I can’t tell what model or anything like that. But it was a gun, you know.
[PROSECUTOR]: What happened— again, what happened after he — what did he do then, after he pointed the gun at you and demanded the money?
[LEWIS]: He kept demanding the money and saying, you know what time it is, give it up, give it up. And, like I say, you know, it was cursing ... that type of stuff, you know, all that tough boy stuff, you know. But I was just kind of in a daze still, you know.
So I looked at my left hand like this. With my right hand, as he steady standing [sic], I just slowly put my hand in my pocket. I had, you know, I had over $1,000 in my pocket that night. So I had some money in my pocket. He didn’t know how much I had. He just knew I had some money, you know. And so I was just debating, you know, what should I do, you know, thinking about my kids still.
So what I do, I go in my pocket, hand still in the air like this, put my right hand in my pocket. I was saying to myself, should I give him all my money or part of my money, you know what I’m saying? And then I thought about my little boy, not born. And I just say, you know what, I’m just going to give it all to him. And as I was bringing my hand out my pocket [sic], I had just a wad of money like this. And I did like this. And I’m standing straight up[,] and Pm just kind of handing it to him, showing him I’m not about to try to try [sic] anything, you know, reach for a gun or nothing.
And as I’m going like this to hand it to him, standing straight up, I hear a gun fire. I look. I look down, and I don’t see any blood. It looked like he had shot like the lower part of ”my body.
So when he did that, I was like, I know it’s not a dream, but he’s meaning to kill me. So I reached [sic] my money back like this. And I was ready to die then. I put my money back in my pocket, looked him dead in the eyes, like eyeball to eyeball, in his eyes, hands still in the air. And I said, look ... you going to have to kill me now. ‘Cause I looked him dead in his eyes[,] and I meant that. Because I felt like he meant me for dead anyway.
When I said that, he reached the gun up and had it level with my head. My hand still in the air like this. I’m looking him dead in the eyes, telling him this. I looked down the barrel. After I looked down the barrel, I look[ed] at his finger. And we looking, talking about eye to eye, like I’m looking you dead in your eye, just like looking at you like this, like, you got to kill me. And he didn’t flinch. He just pulled the trigger. I’m looking down the barrel. And I just knew I was dead. But the gun jammed.
* * *
When the gun jammed — I’m a lot bigger than him, I wasn’t scared of him when it jammed. But I’m thinking about my kids, I’m thinking about, the gun jammed. I’m looking down the barrel. I said to myself, all right, if I run towards him, I’m sure I can tackle him. And then I said, if I do run towards him, the gun might unjam and shoot me in the stomach or something like that[,] and I could die, whatever, whatever. So then I said, if I run, he can run after me. So this all going through my head like this, like quick. So I just decided to run.
When I decided to run, the gun, he was still trying to face it towards me, when I was standing there. ‘Cause I was — just thought I was dead. I just knew I was dead because I was just there, you know. And then when I kind of came back in, I saw him wrestling with the gun. So it was like he was trying to point the gun at me to unjam it. But he had to hold it at a angle [sic] because when your gun jam [sic], you can’t, you know, he [was] just playing with it.
So I was like, should I rush him or run. So I ran. When I ran, when I hit the corner of my girl’s car, I heard another gun fire, you know what I’m saying. And I ran like at a angle [sic] from the corner of the club, towards the highway. I just heard a gunshot. I’m just running. Adrenaline pumping, you know, and I just ran across the highway.
[PROSECUTOR]: Okay. So after you started running, he fired at you again.
[LEWIS]: Again.
[PROSECUTOR]: Do you know how many times?
[LEWIS]: As I recall, I heard the gun shoot three times. First, when he shot towards my lower body. Second, when I hit the corner of the club, past my girl’s car. The third, I ran across the street to the neighbor’s trailer[,] and I heard it shoot again. I’m running, he’s running. I look behind me — I’m half[-]way to the neighbor’s yard. He’s ... crossed the street. When I get to the door, I’m just banging like crazy, open the door up, open the door up, just going crazy, nuts. He’s running. He gets [halfway] to the yard — his little group of people that’s with him, they up [sic] the road. And I could see the car. They hit the car. I see the brake lights and stuff. And I’m like, come on, come on. And he [is] coming closer towards me. I’m just banging on the door. The boy that I thought it was — I didn’t know it was him back there, but the porch light came on. When the porch light come [sic] on, he was [halfway] to the yard[,] and I was up on top of the stairs. So I guess he figured somebody [was] going to see him. And they hollering, come on, come on.

On cross-examination, Lewis was questioned extensively about whether he was certain that it was Williams who had robbed him; he consistently identified Williams as the perpetrator.

¶ 7. Williams called Bonds and Officer Gregory Patterson as his sole witnesses. Bonds’s testimony was relatively short but was largely consistent with Thompson’s and Joseph’s testimonies. Officer Patterson made the initial contact with Lewis after the robbery. Officer Patterson testified that his offense report listed Thompson as a potential suspect and that Lewis had given him Thompson’s name. During cross-examination, Officer Patterson admitted that he could not remember whether Lewis told him that Thompson was the alleged robber or whether Lewis stated that he had simply observed Thompson with the robber.

¶ 8. Additional facts will be related, as necessary, during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Juror Challenge

¶ 9. In this contention of error, Williams alleges that the circuit court erred in allowing a certain juror to sit on the jury. However, the record reflects that the juror in question was not seated on the jury, as Williams acknowledges in his reply brief. This contention of error is without merit.

2. Codefendants’Guilty Pleas

¶ 10. Williams contends that the State erred in eliciting testimony regarding the guilty pleas that Joseph, Thompson, and Bonds entered. Williams is correct that evidence that a codefendant pleaded guilty to the same crime as a defendant is generally inadmissible. Buckley v. State, 223 So.2d 524, 528 (Miss.1969).

¶ 11. Several factors undermine Williams’s claim of reversible error in this case. First, the testimony in question was not objected to by Williams at trial. In general, issues that were not raised at trial are barred from our consideration on appeal. Gunn v. State, 56 So.3d 568, 572 (¶ 17) (Miss.2011). However, Williams will still be entitled to relief if he can show that any of his complaints rise to the level of plain error. Blanchard v. State, 55 So.3d 1074, 1077 (¶ 16) (Miss.2011). “Plain error exists where such error affects the defendant’s substantive/fundamental rights, even though no objection was made at trial.” Parker v. State, 30 So.3d 1222, 1227 (¶ 14) (Miss.2010).

¶ 12. Significantly, Joseph, Bonds, and Thompson all testified at trial; therefore, Williams had the opportunity to question them regarding their guilty pleas and possible motivations for pleading. This Court has suggested that a defendant’s opportunity to question codefendants regarding their guilty pleas weighs against a finding of error regarding the admission of evidence regarding those same guilty pleas. Palm v. State, 724 So.2d 424, 426 (¶4) (Miss.Ct.App.1998). Furthermore, Joseph, Bonds, and Thompson all testified regarding their involvement in Williams’s crime. In White v. State, 616 So.2d 304, 308-09 (Miss.1993), the Mississippi Supreme Court found no reversible error where a codefendant testified about his involvement in the crime and evidence of the same codefendant’s guilty plea was introduced at trial. As the White court stated: “the question of [the codefendant’s] guilt was not a disputed fact at the trial.” Id. at 308. Finally, Joseph’s, Bonds’s, and Thompson’s pleas were based on conduct completely separate from Williams, inasmuch as the three were convicted for assisting Williams in escaping, while Williams was convicted of armed robbery and aggravated assault. In Brown v. State, 37 So.3d 1205, 1212-13 (¶ 18) (Miss.Ct.App.2009) (quoting White, 616 So.2d at 307), this Court declined to reverse a defendant’s conviction despite the prosecution’s references to a codefendant’s plea, in part because the plea in that case was “based on conduct not involving the defendant. ...”

¶ 13. In short, this issue is procedurally barred because it was not raised below and does not rise to the level of plain error. Williams’s codefendants were available for questioning, they testified about their involvement in the crime, and the factual basis for their pleas was different from the factual basis of Williams’s crime.

¶ 14. This contention of error is without merit.

3. Failure to Object to Evidence Regarding Guilty Pleas

¶ 15. Williams complains that his trial counsel failed to object to the evidence regarding Joseph’s, Bonds’s, and Thompson’s guilty pleas. To prove ineffective assistance of counsel, Williams must show that his trial counsel was deficient in his performance and that that deficiency somehow prejudiced Williams’s defense. Sea v. State, 49 So.3d 614, 617 (¶ 12) (Miss.2010). In order for an appellate court to reverse, there must be a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.” Chamberlin v. State, 55 So.3d 1046, 1050 (¶ 5) (Miss.2010) (quoting Mohr v. State, 584 So.2d 426, 430 (Miss.1991)).

¶ 16. Since Joseph, Bonds, and Thompson all testified regarding their involvement in the crime, the evidence regarding their guilty pleas was of much less impact than it would have otherwise been. Furthermore, the evidence of Williams’s guilt was overwhelming and included eyewitness testimony from Lewis, Williams’s victim. As in Palm, we cannot find that “the outcome in this case would have been different” if Williams’s attorney had objected at trial.

¶ 17. Accordingly, this contention of error is without merit.

J. Admission of Other Bad Acts

¶ 18. Williams next complains of the admission of testimony by Lewis that he encountered Williams after the robbery. Lewis testified that he saw Williams at a truck stop after the robbery, that Williams tapped him on the shoulder, and that Williams stated that he was out of jail because “the courts know [he] told the truth.” Lewis testified that, after the encounter at the truck stop, he started carrying a pistol with him everywhere he went. After Lewis finished describing the encounter, the prosecutor asked the following questions:

Q. All right. But, again, but you’re certain that is the same person that robbed you.
A. I’m positive.
Q. And the same person that’s here in the courtroom—
A. I’m positive....

Williams did not object to Lewis’s testimony at trial. Accordingly, he must show plain error in order to succeed on this issue.

¶ 19. The testimony here was apparently elicited to show that Lewis had correctly identified Williams as his assailant. While evidence of extraneous bad acts is generally inadmissible, Rule 404(b) of the Mississippi Rules of Evidence allows such evidence if it is offered to show something other than the defendant’s guilt, such as proof of identity. After Lewis finished describing the incident to the jury, the prosecutor immediately questioned Lewis regarding his identification of Williams in light of the incident.

¶ 20. This contention of error is procedurally barred for failure to raise it at trial. Even if it were not procedurally barred, it is without merit.

5. Failure to Object to Evidence of Other Bad Act

¶ 21. Williams alleges that his trial counsel was deficient because he failed to object to Lewis’s testimony regarding the incident at the truck stop. As we have already noted, the testimony in question was apparently elicited to show that Lewis had correctly identified Williams. Furthermore, there is no reasonable probability that the outcome of Williams’s trial would have been different without the testimony, given the overwhelming weight of the evidence against Williams.

¶ 22. This contention of error is without merit.

6. Lewis’s Prior Statement

¶23. Williams next alleges that the circuit court erred in allowing the State to introduce a prior unsworn statement by Lewis into evidence. There was no objection at trial regarding the statement’s admission into evidence.

¶ 24. As with Williams’s other issues, this issue is procedurally barred due to Williams’s failure to make a contemporaneous objection. Procedural bar notwithstanding, we note that Lewis’s prior statement was cumulative and repetitive of his testimony at trial. Given the overwhelming weight of the evidence against Williams, we would find no reversible error on this issue even in the absence of a procedural bar.

7. Failure to Object to Prior Statement

¶ 25. Williams alleges that his trial counsel was ineffective for failing to object to the admission into evidence of Lewis’s prior unsworn statement. Given the cumulative nature of the statement, we cannot find that the outcome of Williams’s trial would have been any different if the statement had not been admitted.

¶ 26. Accordingly, this contention of error is without merit.

8. Prosecutorial Misconduct

¶ 27. As a part of his final closing argument, the prosecutor stated the following:

Ladies and gentlemen, what you’re going to tell your family and your friends is that you did your job and your duty as citizens of Pike County, Mississippi, when you convicted this man for shooting at, robbing—committing armed robbery and committing aggravated assault on Eddie Lewis on April 11.

There is—he wants to know if it adds up, ladies and gentlemen. It adds up. Williams contends that these remarks constitute prosecutorial misconduct sufficient to require a reversal of his case. There was no objection to the statement, and Williams’s argument is consequently pro-eedurally barred. Regardless of the procedural bar, Williams’s contention is without merit.

¶ 28. While arguments similar to the one above have been held to be improper in some cases, we do not consider closing arguments in a vacuum. Rather, we must view the prosecutor’s remarks “in conjunction with the ‘opening salvo’ from defense counsel.” Spicer v. State, 921 So.2d 292, 323 (¶ 70) (Miss.2006) (quoting Edwards v. State, 737 So.2d 275, 299 (¶ 52) (Miss.1999)). The Spicer court found no reversible error where the prosecutor’s remarks were made wholly in response to defense counsel’s closing argument. Id. at 322-24 (¶ ¶ 66-71).

¶29. Here, Williams’s attorney stated the following to the jury during closing argument: “And when you go home, you’re going to talk to your friends and family, and they’re going to say, why did you find him not guilty. And do you know what you’ll say? You’ll say, well, the case didn’t add up. I still have questions.” Viewed in context, the prosecutor was merely responding to Williams’s attorney’s remarks during closing argument. Therefore, notwithstanding the procedural bar, we find that no error flowed from the remarks.

¶ 30. This contention of error is also without merit.

9.Failure to Object to Prosecutor’s Remarks

¶ 31. Williams complains that his attorney failed to object to the remarks made by the prosecutor during closing argument. As we have already stated, the remarks were a proper comment on the statements made by Williams’s attorney during closing argument. Williams’s trial attorney did not have a basis for objecting to the remarks after inviting them.

¶ 32. This contention of error is without merit.

10. Proposed Jury Instruction

¶ 33. Williams claims that the circuit court improperly refused his proposed jury instruction on the credibility of accessories. In his appellate brief, Williams acknowledges that a defendant is entitled to such an instruction only “when the accomplice’s testimony is the sole basis for conviction, and the defendant’s guilt is not clearly proven.” Williams v. State, 32 So.3d 486, 490 (1112) (Miss.2010) (citing Wheeler v. State, 560 So.2d 171, 173 (Miss.1990)).

¶ 34. We note at the outset that Joseph, Bonds, and Thompson were accessories after the fact, not accomplices. Defendants are not entitled to cautionary instructions regarding the testimonies of accessories after the fact. Slaughter v. State, 815 So.2d 1122, 1135 (¶ 68) (Miss.2002). Furthermore, even if Thompson, Bonds, and Joseph were viewed as accessories, their testimonies were substantially corroborated by Lewis, who testified that it was Williams who robbed and shot at him. Under these circumstances, the circuit court was correct in refusing Williams’s proposed instruction.

¶ 35. This contention of error is without merit.

11. Cumulative Error

¶ 36. Finally, Williams contends that the effect of cumulative errors requires the reversal of his case for a new trial. The Mississippi Supreme Court has stated the following regarding cumulative error:

Under the cumulative-error doctrine, individual harmless errors may be aggregated with other errors to create reversible error “where the cumulative effect of all errors deprives the defendant of a fundamentally fair trial.” Ross v. State, 954 So.2d 968, 1018 [ (¶ 138) ] (Miss. 2007). However, where [an appellate court] does not find any error in the case, there can be no cumulative error that warrants reversal. Harris v. State, 970 So.2d 151, 157 [ (¶ 24) ] (Miss.2007).

Osborne v. State, 54 So.3d 841, 848 (¶ 27) (Miss.2011).

¶ 37. As there was no error in this case, there can be no cumulative error, and this contention of error is without merit.

¶ 38. THE JUDGMENT OF THE PIKE COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, ARMED ROBBERY, AND COUNT II, AGGRAVATED ASSAULT, AND SENTENCE OF LIFE FOR COUNT I AND TWENTY YEARS FOR COUNT II, WITH THE SENTENCES TO RUN CONCURRENTLY, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

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


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Timothy COLLINS, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00781-COA.
    Court of Appeals of Mississippi.
    Sept. 6, 2011.
    Rehearing Denied Nov. 29, 2011.
    Certiorari Denied March 8, 2012.

      William R. Labarre, Alice Theresa Stamps, Virginia Lynn Watkins, Jacinta Hall, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. A jury sitting before the Hinds County Circuit Court found Timothy Collins guilty of aggravated assault. The circuit court sentenced Collins to twenty years in the custody of the Mississippi Department of Corrections. Aggrieved, Collins appeals and claims that he was entitled to a lesser-included-offense instruction on simple assault. Additionally, Collins claims the circuit court should have granted his motion for a mistrial after the prosecution had commented on his decision to decline to testify. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Collins’s conviction is the result of his misguided effort to avenge his younger sister. The record suggests that Collins has at least four sisters. Preston Sterling was engaged to one of Collins’s sisters, Seneca. Collins’s twelve-year-old sister, Yneshia, was at Battlefield Park in Hinds County, Mississippi, on August 5, 2006. Sterling was also at Battlefield Park on that date.

¶ 3. According to Collins’s theory of the case, Sterling slapped Yneshia at the park. Sterling denied that he had slapped Ynes-hia. It is undisputed that Seneca and two of her and Collins’s sisters confronted Sterling in the parking lot of an abandoned apartment complex at 753 Silas Brown Street in Jackson, Mississippi. Anthony Wilson, who had previously lived in one of the apartments before the complex had been abandoned, testified that he saw the confrontation. According to Wilson, three women argued with Sterling regarding his treatment of their younger sister. Wilson testified that one of the women told Sterling “that he was going to die.” Wilson further testified that, approximately two or three minutes later, a green car pulled into the apartment complex. The woman driving the green car stopped. According to Wilson, a man got out of the car, and without exchanging any words with Sterling, the man shot Sterling multiple times. Wilson also testified that, after Sterling had fallen to the ground, “[the shooter] shot him again.” The shooter then got back into the car, and the woman drove away. Wilson later identified Collins as the man who had shot Sterling.

¶ 4. Sterling was critically wounded. He had been shot five times with a .45-caliber pistol. Sterling sustained wounds to his head, his left arm, and his side. He had also been shot twice in the back. One of those shots damaged his spinal cord. Sterling survived, but he was paralyzed as a result of the shot that damaged his spinal cord.

¶ 5. Monica Hamledary was the driver of the green car. She testified that she did not know that Collins was going to shoot Sterling. Hamledary had known Collins for some time when she encountered him on Winter Street on August 5, 2006. Collins got in her car, and they both were on their way to a nearby store when Collins directed her toward the apartment complex. Hamledary stopped the car, and Collins got out. Hamledary testified that she was not paying attention to what Collins was doing because she was talking on her cellular telephone and listening to her car radio.

¶ 6. According to Hamledary, she first noticed the confrontation between Collins and Sterling when shots were fired. Ham-ledary testified that a tree obscured her view of the events. She further testified that she did not hear Collins say anything to Sterling. After he had shot Sterling, Collins returned to the car and told Ham-ledary to drive. Hamledary later explained that she did not immediately report the incident because she was in shock. She left Collins at a grocery store on Farish Street in Jackson, and after running another errand, she went home. After she arrived home, she saw a news report regarding the incident. The news report also stated that authorities were searching for the female driver of the green car. Hamledary called authorities and gave a statement shortly after midnight.

¶ 7. Collins gave a statement after he was arrested. Within his statement, Collins claimed that Sterling displayed a pistol when Collins approached him. According to Collins, he and Sterling exchanged words. Collins told authorities that Sterling had said, “you’ve got yours, I’ve got mine, let’s do it.” Collins admitted that he had fired his .45-caliber pistol. However, according to Collins, he fired his pistol at a downward angle toward Sterling’s legs. Collins stated that he threw his .45-caliber pistol in the Mississippi River after he had shot Sterling. Collins’s theory of the case was that the bullets had ricocheted off the pavement and struck Sterling. As previously mentioned, the jury found Collins guilty of aggravated assault. Collins appeals.

ANALYSIS

I. JURY INSTRUCTIONS

¶ 8. Collins claims the circuit court should have granted his request for a simple-assault instruction. Collins’s proffered jury instruction, designated as jury instruction D-9, states:

If you, the Jury[,] find that the State has failed to prove any one of the essential elements of the crime of Aggravated Assault, you must find ... Collins not guilty of Aggravated Assault and you will proceed with the deliberation to decide whether the State has proved beyond a reasonable doubt all the elements of simple assault.
The crime of Aggravated Assault is distinguished from simple assault if you find that ... Collins negligently caused bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.
In the event you find from the evidence that the defendant is guilty of the lesser[-]included offense of simple assault, your verdict shall be as follows:
‘We, the jury, find the defendant guilty of simple assault.”

At trial, Collins argued as follows:

Your Honor, on their argument, first, that it was self-defense, but that he shot down at the legs which the bullet— there’s been testimony of the fact that bullets hit concrete, that they could ricochet, that ricochet is considered negli-genee. And I think there is enough for the jury to consider that as maybe a bullet hit the parking lot, it ricocheted, it hit the window rail, it hit the window. That could be considered as negligence in shooting the firearm and that’s before the jury. That’s something they could consider and come back with the simple-assault [verdict].

The circuit court refused proffered jury instruction D-9 without comment. Collins claims the circuit court’s decision amounts to reversible error.

¶ 9. We conduct a de novo review of a circuit court’s decision that a defendant is not entitled to a lesser-included-offense instruction, as this is a question of law. Babb v. State, 17 So.3d 100, 102-03 (¶ 8) (Miss.Ct.App.2009). Regarding the standard of review for whether a lesser-included-offense instruction is warranted, we have stated as follows:

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

Id. (quoting Harper v. State, 478 So.2d 1017, 1021 (Miss.1985)).

¶ 10. Collins was charged with aggravated assault. “A person is guilty of aggravated assault if he ... attempts' to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.” Miss.Code Ann. § 97 — 3—7(2)(b) (Supp.2010). Simple assault occurs when a person “negligently causes bodily injury to another with a deadly weapon-” Miss.Code Ann. § 97 — 3—7(1)(b) (Supp.20010). According to Collins, his request for a simple-assault instruction was supported by the testimonies presented from two members of the Jackson Police Department: Detective Ford Hayman and Crime Scene Investigator Robert Bufkin. Collins’s attorney asked Detective Hayman the following question: “Well, if a bullet is shot near concrete, it could ricochet, couldn’t it?” Detective Hayman answered, “I suppose, yes, ma’am.” During cross-examination, Investigator Bufkin was asked: “[N]ow if someone was shooting downward, could the bullet ricochet off the concrete?” Investigator Bufkin responded: “[T]hat’s possible.” According to Collins, Detective Hayman’s and Investigator Bufkin’s testimonies support his claim that he fired downward at Sterling’s legs. Collins also notes that bullet fragments were found in the wooden railing of the apartments and in a window pane.

¶ 11. While “a defendant is entitled to have jury instructions given which present his theory of the case, the trial court is allowed to refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Babb, 17 So.3d at 103 (¶ 12) (citations omitted). When Collins asked Detective Hayman whether a bullet could have ricocheted off of concrete, Detective Hayman responded, “I suppose [so].” Investigator Bufkin’s response to the same question was that it was possible for a bullet to ricochet off of concrete. “[A] lesser-included offense instruction should never be granted on the basis of pure speculation.” Fairchild v. State, 459 So.2d 793, 801 (Miss.1984). Investigator Bufkin’s and Detective Hay-man’s testimonies can only be described as speculation. Collins initially claimed that he had acted in self-defense when he gave a statement to Detective Hayman. However, there was no further mention of that theory during Collins’s trial. Wilson testified that he saw the entire sequence of events that resulted in Sterling being shot five times. Wilson also testified that he did not see Sterling with a weapon. Sterling testified that he did not have a weapon — much less display one — prior to Collins shooting him. Authorities did not find a weapon in Sterling’s vicinity when they responded to the scene. Furthermore, there was no evidence that suggested that Collins had negligently caused Sterling’s injuries. Sterling testified that Collins got out of Hamledary’s car, announced that he was going to kill Sterling, and “just started shooting.” Collins shot Sterling in the head, the side, the left arm, and twice in the back. According to Sterling, he was lying on the ground when Collins stood over him and shot him once more in the back. As a result, Sterling was in the hospital between three and four months. The bullet in Sterling’s lower spine could not be removed. Sterling is paralyzed for the remainder of his life. Wilson testified that Collins “jumped out [of] the car,” and without exchanging any words with Sterling, Collins “pull[ed] the gun up and shot [Sterling].” Detective Hayman recovered six spent shell casings from the parking lot. Collins shot Sterling five times. Even viewing the evidence in the light most favorable to Collins, and considering all reasonable favorable inferences which may be drawn in his favor, no reasonable jury could have found him guilty of simple assault. Consequently, we find no merit to this issue.

II. MISTRIAL

¶ 12. Collins argues that the circuit court should have granted his request for a mistrial after the prosecution made what Collins considers to be improper comments during closing arguments. Specifically, Collins takes issue with the following comment by the prosecution:

Let’s put the victim on trial. It’s his fault. That’s what they’re saying. It’s the victim’s fault. Did you just hear her say, [“]yeah, maybe he did shoot at his feet, four, five, six, seven, eight times. But he wasn’t trying to kill him.[”] Hell, yes, he was trying to kill him. I mean, it’s absurd to think that he wasn’t trying to kill him. And let me ask you this. How many witnesses did they put up that said he didn’t do it[?]

At that point, Collins’s attorney objected and asked to approach the bench. The bench conference was not recorded. The prosecution concluded its closing argument. The jury then retired to deliberate. The record indicates that the circuit judge announced that he had been informed that the jury had reached a verdict. At that time, the following exchange transpired:

[Collins’s attorney]: Your Honor, before the jury comes in, may I just say one thing on the record?
The Court: Yes.
[Collins’s attorney]: I raised an objection during [the prosecution’s] closing about not one witness being called. I wasn’t clear whether the court had actually ruled on my objection because the defense has no burden at all to bring witnesses, and I just wanted to get that on the record. I wasn’t sure that there was a ruling on the record.
The Court: Yes, there was. I overruled the objections[,] and I instructed [the prosecution] to rephrase the question because what he stated was not one witness had been called, but he did not indicated that the defendant had not called any witness[es] and he did not infringe upon the defendant’s right to testimony or not to testify and not call witnesses.
[Collins’s attorney]: Okay. And just for the record, Your Honor, I would like to ask for a mistrial on the record based on your ruling, based on that I would just like to ask for a mistrial on the record.
The Court: All right. That mistrial motion is untimely. But if it had been made at the time of the objection it would have been denied.

¶ 13. Collins argues that the prosecution’s comment was improper because it infringed on his right to remain silent. “It is ... well settled that when anything transpires during the trial that would tend to prejudice the rights of defendant ... he must ask the trial court for a mistrial upon the happening of such occurrence when the same is of such nature as would entitle him to a mistrial.” Blackwell v. State, 44 So.2d 409, 410 (Miss.1950). More recently, this Court has reiterated that a defendant’s failure to move for a mistrial in a timely manner renders the issue procedurally barred on appeal. Parker v. State, 20 So.3d 702, 707-08 (¶ 23) (Miss.Ct.App.2009). “[A] motion for mistrial after the jury has retired to consider its verdict comes too late.” Williams v. State, 684 So.2d 1179, 1203 (Miss.1996) (quoting Box v. State, 610 So.2d 1148, 1154 (Miss.1992)). A contemporaneous motion for a mistrial is necessary because it allows the offering party and the trial court an opportunity to obviate the objection. Id. In other words, a contemporaneous motion for a mistrial “is critical because it allows the judge to avert a mistrial, if possible, by admonishing the jury to disregard the utterance.” Knight v. State, 751 So.2d 1144, 1154 (¶ 26) (Miss.Ct.App.1999). Because Collins did not move for a mistrial until well after the prosecution had concluded its closing argument and the jury had announced that it had reached a verdict, he is procedurally barred from raising this issue on appeal.

¶ 14. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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


author: GRIFFIS, P.J.,

text:
    Frederick D. SMALL, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KP-00299-COA.
    Court of Appeals of Mississippi.
    Nov. 1, 2011.
    Rehearing Denied Feb. 14, 2012.

      Frederick D. Small, appellant, pro se.
    Office of Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before GRIFFIS, P.J., MYERS and ISHEE, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Frederick Small directly appeals from an order denying his motion to dismiss his legal counsel and withdraw his guilty plea entered in the DeSoto County Circuit Court. We find that this Court is without jurisdiction to hear Small’s appeal. Therefore, we dismiss the appeal without prejudice to allow Small to proceed under the Mississippi Uniform Post-Conviction Collateral Relief Act.

FACTS

¶ 2. In November 2008, a DeSoto County grand jury indicted Small and Austin Smith together on three charges: conspiracy to commit burglary of a dwelling, burglary of dwelling, and attempted larceny. The State later filed a motion to amend Small’s indictment to charge Small as a habitual offender under Mississippi Code Annotated section 99-19-81 (Miss.2007), which the trial court heard and granted on June 3, 2009.

¶ 3. Pursuant to a plea agreement, Small pleaded guilty to burglary of a dwelling on August 5, 2009. The two other charges were remanded to Small’s file. Sentencing was continued until November 3, 2009.

¶ 4. On September 28, 2009, Small filed a pro se motion styled, “Motion for Withdrawal of Plea and Withdrawal of Counsel.” It was therein claimed that Small’s guilty plea was involuntarily, unknowingly, and unintelligently given because: the district attorney’s office had misrepresented facts to the elements of the crime of burglary; Small’s attorney had manipulated him into pleading guilty, thereby causing Small to plead guilty under duress; Small was without a full understanding of the consequences of his guilty plea; and no physical evidence existed in the case connecting Small to the crime. Small also claimed that his attorney was ineffective for failing to investigate the charge, use important evidence, acquire three alibi witnesses, and object to the fact the district attorney’s office had a witness (Smith) willing to testify against him if the matter went to trial.

¶ 5. Small’s sentencing hearing was finally held on February 2, 2010. The trial court addressed Small’s motion at the outset of the hearing and found it not well taken; an order was entered to that effect, which was filed with circuit clerk’s office on February 4, 2010. The trial court accepted the State’s sentencing recommendation, as set forth in Small’s plea agreement with the district attorney’s office, and sentenced Small to eighteen years in the custody of the Mississippi Department of Corrections. The sentencing order was filed February 11, 2010. Small filed a notice of appeal on February 18, 2010, purporting to appeal the trial court’s order denying his motion to withdraw his guilty plea and to dismiss his legal counsel.

¶ 6. On appeal, Small maintains that the trial court erred in not allowing him to withdraw his guilty plea and in not dismissing his legal counsel. Small also asserts, for the first time on appeal, that the habitual-offender status of his sentence is illegal because the State failed to prove that he had previously been convicted of two separate felonies and sentenced to separate terms of one year or more on each conviction.

ANALYSIS

¶ 7. Because Small entered a guilty plea, a direct appeal is not available to him. Shanks v. State, 906 So.2d 760, 761 (¶ 3) (Miss.Ct.App.2004). Mississippi Code Annotated section 99-35-101(Supp.2011) states:

Any person convicted of an offense in a circuit court may appeal to the Supreme Court. However, where the defendant enters a plea of guilty and is sentenced, then no appeal from the circuit court to the Supreme Court shall be allowed.

Previously, although a defendant could not attack his guilty plea, he could challenge his sentence on direct appeal; however, this Court has held that this is no longer the law. Miller v. State, 61 So.3d 944, 947 (¶ 8) (Miss.Ct.App.2011). The 2008 amendment to section 99-35-101 now “prohibit[s] any direct appeal upon entry of a guilty plea.” Id. Instead, the defendant must file a motion for post-conviction collateral relief (PCR) pursuant to Mississippi Code Annotated section 99-39-5 (Supp. 2011). Calvert v. State, 976 So.2d 406, 407 (¶ 5) (Miss.Ct.App.2008) (citing Berry v. State, 722 So.2d 706, 707 (¶ 5) (Miss.1998)).

¶ 8. Small did not file a PCR motion in this instance; rather, he directly appealed the trial court’s order denying his motion to withdraw his guilty plea and to dismiss his legal counsel. Pursuant to section 99-35-101, we are without jurisdiction to hear this appeal; thus, we may not touch upon on the merits of any of Small’s claims asserted herein. Miss.Code Ann. § 99-35-101.

¶ 9. Consistent with Calvert, we dismiss Small’s appeal without prejudice in order to allow Small, if he so chooses, to raise the above mentioned claims in a properly filed PCR motion in the trial court in accordance with section 99-39-5. See Calvert, 976 So.2d at 407 (¶ 6). If dissatisfied with the trial court’s ruling on that motion, then Small may appeal that ruling pursuant to Mississippi Code Annotated section 99-39-25 (Rev.2007).

¶ 10. THE APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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


text:
    Eric BONDEGARD, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KM-01727-COA.
    Court of Appeals of Mississippi.
    Nov. 22, 2011.
    Rehearing Denied Feb. 28, 2012.

      Gary L. Honea, Magnolia, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before IRVING, P.J., BARNES and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Eric Bondegard appeals his conviction in the Amite County Circuit Court of misdemeanor driving under the influence of intoxicating liquor, first offense. He claims his arrest was illegal because the arresting officer lacked probable cause to arrest him. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. At approximately 10:30 p.m. on October 14, 2009, Trooper Jason Powell of the Mississippi Highway Patrol went inside the Exxon Truck Stop, also known as the C-Store, in Liberty, Mississippi, to buy a soft drink. While standing at the counter, Trooper Powell saw a dark blue Toyota Tacoma pickup truck pull up to the gas pumps. The driver of the pickup truck was later identified as Bondegard. Bondegard went inside the C-Store and got a twelve-pack of beer. When Bonde-gard went to the counter, Trooper Powell smelled alcohol on Bondegard. Additionally, Bondegard’s face was flushed.

¶ 3. Bondegard put the beer on the counter and asked the store clerk for some cigarettes. At that time, Bondegard first noticed Trooper Powell. Trooper Powell testified that Bondegard’s demeanor “completely changed” after they had made eye contact. Bondegard became “extremely nervous and fidgety.” By Trooper Powell’s description, Bondegard was literally shaking. According to Trooper Powell, Bondegard became so nervous that he had a hard time getting his credit card out of his wallet. When Bondegard finally managed to remove his credit card from his wallet, he had trouble swiping his credit card on the C-Store’s electronic-payment equipment. Trooper Powell explained that the store clerk had to swipe Bondegard’s credit card for him.

¶ 4. Bondegard continued to behave in a nervous mariner. He left the C-Store without taking his beer or cigarettes. After calling someone on his cellular phone, Bondegard went back inside the C-Store. He then went back outside and made another phone call. Again, he went back inside the C-Store. When he went back inside, he bought a hot dog. Again, he left his items on the counter and went back outside, where he made a third phone call.

¶ 5. Bondegard had been visiting Danny Schneckloth, a fellow employee of the Canadian National Railroad. Schneckloth drove a small, silver car into the C-Store parking lot. Bondegard went back inside the C-Store, retrieved his items from the counter, and got into the passenger side of Schneckloth’s car. Bondegard left his pickup truck parked at the gas pumps. Schneckloth later testified that Bondegard had called him and said that his pickup truck would not start. Schneckloth also testified that Bondegard had not mentioned Trooper Powell’s presence during their conversations.

¶ 6. After Schneckloth picked up Bonde-gard, Trooper Powell left the C-Store. As Trooper Powell was leaving the city limits of Liberty, he encountered someone who was speeding. He stopped that driver in the parking lot of a store next to the C-Store. Shortly after Trooper Powell concluded that traffic stop, Trooper Powell saw the same small, silver car in which Bondegard had left. Approximately fifteen minutes passed since Trooper Powell had first seen Bondegard. The small, silver car returned to the C-Store, where Bondegard got out. Bondegard went to his pickup truck and got inside. Contrary to what Bondegard had told Schneckloth, Bondegard was able to start his pickup truck immediately.

¶ 7. Bondegard then drove away. However, when Bondegard attempted to leave the C-Store parking lot, Bondegard missed the entrance. Bondegard drove into a ditch so violently that his front tires left the surface of the road. His back tires left the surface of the road when Bonde-gard drove out of the ditch.

¶ 8. Trooper Powell pursued Bondegard. By the time Trooper Powell got to the last place that he saw Bondegard’s pickup truck, he could not find Bondegard. Trooper Powell correctly deduced that Bondegard had pulled into a driveway. He found Bondegard’s pickup truck parked in Schneckloth’s driveway. Trooper Powell also found Bondegard standing near the edge of the street while talking on his cellular phone. Although Trooper Powell had not activated his blue lights, when Bondegard saw Trooper Powell’s patrol car, Bondegard turned and ran toward Schneckloth’s house. Trooper Powell got out of his patrol car and told Bondegard to stop running and come to him. Instead, Bondegard continued inside Schneckloth’s house.

¶ 9. Trooper Powell followed Bondegard. When Trooper Powell saw Bondegard in Schneckloth’s house through a partially opened door, Trooper Powell told Bonde-gard to come outside. Bondegard came to the door and told Trooper Powell that he was home and he was not leaving. Trooper Powell attempted to grab Bondegard’s wrist, but Bondegard jerked it away from Trooper Powell. Trooper Powell then grabbed Bondegard, pinned Bondegard’s arm behind his back, and placed Bonde-gard in handcuffs. Trooper Powell later testified that he again smelled alcohol on Bondegard’s person.

¶ 10. While Bondegard was in Trooper Powell’s patrol car, Bondegard refused to submit to a portable Breathalyzer test. Trooper Powell drove Bondegard to the Amite County Jail, where Bondegard again refused to submit to a breath test. While Bondegard was at the county jail, Trooper Powell again smelled a “strong odor” of alcohol on Bondegard’s person. Trooper Powell also observed that: Bondegard had “blood shot red eyes”; Bondegard was extremely nervous; and Bondegard’s speech was impaired. Accordingly, Trooper Powell charged Bonde-gard with DUI. Trooper Powell also charged Bondegard with resisting arrest, failure to comply with the lawful order of a law-enforcement officer, careless driving, and possession of an improper driver’s license.

¶ 11. Bondegard was convicted of DUI, first offense, after a trial before the Amite County Justice Court. Bondegard appealed the matter to the circuit court for a de novo trial pursuant to Rule 12.02 of the Uniform Rules of Circuit and County Court. During the bench trial, the circuit court granted Bondegard’s motion for a directed verdict regarding all charges but the DUI charge. The circuit court found Bondegard guilty of DUI, first offense, and sentenced Bondegard to forty-eight hours in the Amite County Jail. However, the circuit court further held that Bonde-gard’s sentence would be suspended upon the payment of a $1,000 fine. The circuit court further ordered Bondegard to complete a drug and alcohol safety education program and placed Bondegard on three years of non-reporting misdemeanor probation. Bondegard appeals and claims the circuit court erred when it declined to conclude that Trooper Powell had no probable cause to arrest him.

STANDARD OF REVIEW

¶ 12. We apply a “mixed” standard of review to this issue. Eaddy v. State, 63 So.3d 1209, 1212 (¶ 11) (Miss.2011). The existence of probable cause or reasonable suspicion is to be reviewed de novo. Id. “However, this Court is restricted to a de novo review of the trial judge’s decision based on historical facts reviewed under the substantial evidence and clearly erroneous standards.” Id.

ANALYSIS

¶ 13. Bondegard raises a multifaceted argument with a central premise that Trooper Powell did not have probable cause to arrest him. First, Bondegard claims that Trooper Powell’s arrest was illegal because there was no evidence that he was “operating” his pickup truck on a public road as set forth in Mississippi Code Annotated section 63-11-30(1) (Rev.2004). But Bondegard did not raise this issue at trial. “Failure to raise an issue in a trial court causes operation of a procedural bar on appeal.” Birrages v. Ill. Cent. R.R. Co., 950 So.2d 188, 194 (¶ 18) (Miss.Ct.App.2006). Consequently, this issue is procedurally barred.

¶ 14. Second, Bondegard claims that Trooper Powell did not arrest him when the “time was ripe.” That is, Bonde-gard argues Trooper Powell might have had probable cause to arrest him when Trooper Powell smelled alcohol on him during their first encounter at the C-Store. Bondegard further argues Trooper Powell might have even had probable cause to arrest him after Bondegard drove erratically while leaving the C-Store parking lot. However, Bondegard concludes that Trooper Powell lacked probable cause to arrest him at Schneckloth’s house because Trooper Powell had “let [him] go free.”

¶ 15. Bondegard also argues Trooper Powell arrested him on a hunch, rather than reasonable suspicion that Bondegard was driving under the influence of alcohol. Bondegard appears to argue Trooper Powell stopped Bondegard as a “fishing expedition” to try to determine whether Bonde-gard actually committed a crime. In so doing, Bondegard recites certain facts in a favorable manner, while declining to mention other facts. That is, Bondegard bases his argument solely on those events that happened before Schneckloth drove him back to the C-Store so Bondegard could retrieve his pickup truck. Bondegard’s selective recitation of the facts involves complete omission of everything that happened after Schneckloth drove Bondegard back to the C-Store. It was only then that Trooper Powell saw Bondegard drive erratically by missing the entrance to the C-Store parking lot and driving through a ditch so violently that his tires left the surface of the road.

¶ 16. The Fourth Amendment to the United States Constitution and Article 3, Section 23 of the Mississippi Constitution provide that an individual has the right to be free from unreasonable searches and seizures. Dies v. State, 926 So.2d 910, 917-18 (¶ 21) (Miss.2006). “The existence of ‘probable cause’ or ‘reasonable grounds’ justifying an arrest without a warrant is determined by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The determination depends upon the particular evidence and circumstances of the individual case.” Jones v. State, 993 So.2d 386, 392 (¶ 10) (Miss.Ct.App.2008). Stated differently:

A warrantless arrest is lawful if “at the moment the arrest was made, the officers had probable cause to make it — [if] at that moment the facts and circumstances within their knowledge and of which they had reasonably trastworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.”

United States v. Johnson, 445 F.3d 793, 796 (5th Cir.2006) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)).

¶ 17. Trooper Powell testified that he smelled alcohol on Bondegard’s person when they first encountered each other at the C-Store. Trooper Powell testified that Bondegard became very nervous when he saw Trooper Powell. Bondegard fumbled with his credit card. He bought beer, cigarettes, and a hot dog; he then left them on the counter while he went outside to make phone calls. But Trooper Powell testified that he did not think he had probable cause to arrest Bondegard at that time. Our analysis does not address whether Trooper Powell had probable cause to arrest Bondegard for driving under the influence of alcohol at that time. Contrary to Bondegard’s self-serving recitation of the facts, the story does not end there. In addition to smelling alcohol on Bondegard’s person and seeing Bondegard act as though Trooper Powell’s presence made him very nervous, Trooper Powell also saw Bondegard drive erratically.

¶ 18. Approximately fifteen minutes after Schneckloth had picked up Bondegard at the C-Store, Schneckloth drove Bonde-gard back to the C-Store. Trooper Powell watched as Bondegard got into his pickup truck and left the C-Store parking lot. Bondegard missed the parking lot entrance and drove into a ditch. Bondegard drove into the ditch so violently that his tires left the surface of the road. Trooper Powell clearly articulated facts that would cause a reasonably prudent person to believe that Bondegard was driving under the influence of alcohol. Under the precise circumstances of this case, just because Trooper Powell did not arrest Bondegard after their first encounter does not mean that Trooper Powell forfeited the right to arrest Bondegard for additional events that occurred fifteen minutes later. Furthermore, Trooper Powell did not lose probable cause to arrest Bondegard simply because Trooper Powell had to find him. If that were true, an offender could escape prosecution simply by leaving a law-enforcement officer’s sight. Because Trooper Powell had probable cause to arrest Bondegard for driving under the influence of alcohol, this issue has no merit.

¶ 19. THE JUDGMENT OF THE AM-ITE COUNTY CIRCUIT COURT OF CONVICTION OF DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR, FIRST OFFENSE, AND SENTENCE OF FORTY-EIGHT HOURS IN THE AMITE COUNTY JAIL, SUSPENDED UPON PAYMENT OF A $1,000 FINE, COMPLETION OF AN ALCOHOL SAFETY PROGRAM, AND THREE YEARS OF NON-REPORTING PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Bondegard is a train engineer with the Canadian National Railroad. Although he is a native of Nebraska, Bondegard had been living in Amite County because of his job.

      . Bondegard later testified that he had drank two beers before he went to the C-Store to purchase more beer. However, in his brief, Bondegard concedes that he was "in an obviously intoxicated condition” at the C-Store.

      .Bondegard testified that he was "really nervous" because: he drank two beers before arriving at the C-Store; he was buying more beer; and he thought Trooper Powell would arrest him as soon as he got into his pickup truck.

      . While Bondegard was in Trooper Powell's patrol car, Bondegard told Trooper Powell that “he had been drinking” at Schneckloth's house and "everywhere.” At trial, Bonde-gard testified that he had several shots of liquor and a couple of beers after he returned to Schneckloth’s house.


author: RUSSELL, J., GRIFFIS, P.J.,

text:
    J. Lane KIMBROUGH, Appellant/Cross-Appellee v. Cristal KIMBROUGH, Appellee/Cross-Appellant.
    No. 2010-CA-01279-COA.
    Court of Appeals of Mississippi.
    Feb. 28, 2012.
    T. Jackson Lyons, Jackson, attorney for appellant.
    Stanley A. Sorey, Raleigh, attorney for appellee.
    Before LEE, C.J., ROBERTS and RUSSELL, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. Lane and Cristal Kimbrough both appeal the Smith County Chancery Court’s final decree of divorce on the ground of desertion. Neither party asserted the other deserted the marriage, and the record contains no proof to support the grant of a divorce on that ground. Upon review, we reverse the final decree of divorce and remand for a new trial.

FACTS

¶ 2. Cristal filed for divorce on the grounds of Lane’s alleged habitual cruel and inhuman treatment and habitual drunkenness. Lane counterclaimed, alleging habitual cruel and inhuman treatment and adultery by Cristal.

¶ 3. After a hearing on the divorce only, the chancery court dismissed all the previous grounds. He then granted both parties a divorce based on their mutual desertion of each other. The chancery court’s judgment noted that both parties recognized the marriage was irretrievably broken because both parties had requested a divorce. Therefore, the parties were “granted a divorce one from the other on the grounds of desertion.” Further, the amended judgment stated:

[T]he marital relationship of the parties had gradually eroded and that[,] in fact, for a period in excess of two years that the marital relationship was absent. That Mr. Kimbrough had gone through a period of unemployment that had left him depressed and together with the effects the same had on M[r]s. Kim-brough and her reaction to these problems resulted in both parties[,] even though under the same roof[,] abandoning the marital relationship.

¶ 4. Lane appealed. He asserts the chancery court erred by (1) granting a mutual divorce on the grounds of both parties’ desertion, and (2) failing to grant him a divorce on the ground of Cristal’s admitted adultery.

¶ 5. Cristal cross-appealed. She asserts the chancery court erred by: (1) granting a divorce on the grounds of both parties’ desertion, (2) failing to grant her a divorce on the ground of habitual cruel and inhuman treatment, and (3) failing to grant her a divorce on the ground of habitual drunkenness.

DISCUSSION

¶ 6. “In domestic relations cases, [our] scope of review is limited by the substantial evidence/manifest error rule.” Samples v. Davis, 904 So.2d 1061, 1068-64 (¶ 9) (Miss.2004). Because we defer to the chancery court in such cases, we “reverse a chancellor’s finding only when it is manifestly wrong, clearly erroneous[,] or the chancellor applied an erroneous legal standard.” Id. at 1064 (¶ 9).

¶ 7. Lane and Cristal challenge the chancellor’s grant of a divorce on the ground of desertion. While not so worded, both parties assert two reasons why this Court should not modify the judgment to affirm based on the fault of only one party: (1) neither party plead the ground of desertion, and (2) the evidence did not support the grant of a divorce on the ground of desertion.

¶ 8. The Mississippi Supreme Court has held that a chancery court may not grant a divorce based on each party’s fault-based grounds. Hyer v. Hyer, 636 So.2d 381, 383-84 (Miss.1994). This Court has stated: “There can be but one divorce granted. Where each party has requested a divorce and offers proof sufficient to establish a basis for divorce, the chancellor must then determine which of the parties will be granted a divorce.” Garriga v. Garriga, 770 So.2d 978, 983 (¶23) (Miss.Ct.App.2000).

¶ 9. The chancellor’s grant of the divorce to both parties on the equal fault ground of desertion was clear error. No more need be said on that point. The more difficult question is whether either party is entitled to a divorce on the ground of desertion. After reviewing the record, we decline to modify the judgment for the reasons stated by the parties. Therefore, we reverse and vacate the chancery court’s final divorce decree. Finally, since we reversed the final decree, we decline to address the parties’ remaining assignments of error.

¶10. THE JUDGMENT OF THE SMITH COUNTY CHANCERY COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT/CROSS-APPEL-LEE AND ONE-HALF TO THE AP-PELLEE/CROSS-APPELLANT.

LEE, C.J., IRVING, P.J., ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. GRIFFIS, P.J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY ISHEE, J. BARNES AND CARLTON, JJ., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. FAIR, J., NOT PARTICIPATING.

GRIFFIS, P.J.,

Specially Concurring:

¶ 11. My analysis of this case is different than the majority’s and requires that I •write a specially concurring opinion.

¶ 12. This is an appeal under Mississippi Rule of Civil Procedure 54(b). I would reverse and remand this case because it is clearly an improper appeal under the rule.

¶ 13. This is not the type of case that should be certified for appeal under Rule 54(b). The comment provides, “Rule 54(b) may be invoked only in a relatively select group of cases and applied to an even more limited category of decisions.” M.R.C.P. 54(b) cmt. This is not one of such “select group of cases.” Id. In Walters v. Walters, 956 So.2d 1050, 1054 (¶ 13) (Miss.Ct.App.2007), this Court held:

In closing, we note the supreme court’s admonition that the trial court’s authority to enter a Rule 54(b) judgment should be exercised with caution in the interest of sound judicial administration to preserve the judicial policy against piecemeal appeals. Cox v. Howard, Weil, LaBouisse, Friedrichs, Inc., 512 So.2d [897], 900 [ (Miss.1987) ]. “It is incumbent on trial judges and attorneys to recognize that Rule 54(b) judgments must be reserved for rare and special occasions.” Id. If there is nothing about a case that merits a Rule 54(b) judgment, this Court will dismiss the appeal despite a trial court’s mechanical use of the “no just reason for delay” language. Id. at 900-01.

This case does not merit a Rule 54(b) certification.

¶ 14. This is a typical contested divorce. Cristal filed her complaint first and asked for a divorce on the grounds of habitual drunkenness and habitual cruel and inhuman treatment. Lane answered and asserted a counterclaim for divorce on the grounds of habitual cruel and inhuman treatment and adultery. A hearing was held on whether a divorce should be granted. The chancellor rejected the parties’ claims for a divorce and entered a judgment of divorce finding that grounds of desertion existed as to both parties, even though neither party had pleaded desertion as a ground for divorce. Both parties filed a motion to reconsider and amend the judgment. The chancellor then entered an amended judgment that included the Rule 54(b) certification.

¶ 15. The problem here is that the chancellor did not share with us his reasons for what he did. This Court’s consideration of this case as a Rule 54(b) appeal sets, in my opinion, a dangerous precedent. As an appellate court, we should expect the chancellor to fully and finally adjudicate the issues involved in this typical domestic case. The chancellor should decide whether there is grounds for divorce and divide the parties’ property, consider alimony, child custody, child support, visitation, insurance, etc. This Court should not consider cases such as this piecemeal simply because the chancellor had the difficult task of deciding which party should be granted the divorce.

¶ 16. If we are to consider this case as a proper appeal, I would reverse the chancellor’s decision to grant a mutual divorce, render a divorce to Cristal, and remand this case for the chancellor to decide the remaining issues.

¶ 17. In Hyer v. Hyer, 636 So.2d 381, 382 (Miss.1994), the chancellor granted both parties a divorce on the ground of habitual cruel and inhuman treatment. The supreme court determined that it could not affirm a divorce judgment that granted both parties a divorce on the ground of habitual cruel and inhuman treatment. Id. at 383. The court reasoned:

The two parties cannot be both guilty and innocent of habitual cruel and inhuman treatment. The divorce laws of this State do not provide that the habitual cruel and inhuman treatment of both parties can be concurring proximate causes of the separation, entitling both to a divorce. The decree in this case is self-contradictory, and should be reversed.

Id. (citing Hinton v. Hinton, 254 Miss. 50, 54-55, 179 So.2d 846, 847-48 (1965)). The court reversed the chancellor but resolved the contradiction. The court held that “[a]fter a thorough review of the record, we believe [the husband] to be less at fault.” Hyer, 636 So.2d at 384. The court rendered a divorce in favor of the husband. Id.

¶ 18. In Garriga v. Garriga, 770 So.2d 978, 983-84 (¶¶ 23-24) (Miss.Ct.App.2000), this Court made a similar finding:

There can be but one divorce granted. Where each party has requested a divorce and offers proof sufficient to establish a basis for divorce, the chancellor must then determine which of the parties will be granted a divorce. [Hyer, 636 So.2d at 384], In the present case, Mrs. Garriga was the first to file her divorce. She alleged as a basis for divorce conduct which occurred while the parties lived together. This conduct ultimately caused the parties’s [sic] final separation.
Because Mrs. Garriga was the complainant, predicating her request for divorce on grounds which occurred while the parties lived together, it was not inappropriate, nor an abuse of discretion, for the chancellor to grant her petition, while denying that of Mr. Garriga. “In a situation where both parties are at fault, if a divorce is to be granted, the chancellor must determine which party’s conduct was the proximate cause of the deterioration of the marital relationship and the divorce itself.” Id.

¶ 19. As in Hyer and Garriga, I would reverse the chancellor’s decision to grant a mutual divorce for the same grounds as the majority. I would also conclude, after my review of the record, that Cristal should be granted a divorce on the ground of habitual drunkenness, since the evidence indicates that Lane’s habitual drunkenness was the proximate cause of the divorce. Therefore, I would render a divorce to Cristal. I would then remand the remaining issues to the chancellor for a decision.

¶ 20. I would also admonish chancellors that domestic cases are rarely proper for Mississippi Rule of Civil Procedure 54(b) certification.

ISHEE, J., JOINS THIS OPINION IN PART.

      . However, I do recognize that based on the record, the evidence also would have supported the chancellor’s judgment if he had granted Lane a divorce on the ground of adultery.

      . As stated earlier, the chancellor must still divide the parties' property, consider alimony, child custody, child support, visitation, insurance, and etc.


author: ISHEE, J.,

text:
    Brandon McCOLLUM, Appellant v. STATE of Mississippi, Appellee.
    No. 2011CP00471COA.
    Court of Appeals of Mississippi.
    Feb. 28, 2012.
    Brandon McCollum, appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Brandon McCollum pleaded guilty in the Winston County Circuit Court to possession of contraband in a correctional facility in violation of Mississippi Code Annotated section 47-5-193 (Rev. 2011). He later filed a motion for post-conviction relief (PCR) in the circuit court. The circuit court subsequently denied his PCR motion. McCollum now appeals. McCollum argues on appeal, as he did in the circuit court, that his indictment was defective and that he received ineffective assistance of counsel. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. McCollum was charged with unauthorized possession of contraband in a correctional facility in violation of Mississippi Code Annotated section 47-5-193. He pleaded guilty to the charge on November 10, 2008. He was sentenced to three years of imprisonment in the Mississippi Department of Corrections (MDOC). The sentence was ordered to be served consecutively to any sentence he was serving.

¶ 3. On January 6, 2011, McCollum filed a PCR motion in the circuit court arguing that his indictment was defective and that he received ineffective assistance of counsel. The circuit court denied his PCR motion. From that ruling, McCollum appeals.

DISCUSSION

¶ 4. When reviewing a circuit court’s denial of a PCR motion, we will not disturb the court’s factual findings unless they are clearly erroneous. Eacholes v. State, 847 So.2d 280, 281 (¶2) (Miss.Ct.App.2003). However, any questions of law are reviewed de novo. Id. (citation omitted).

I. Defective Indictment

¶ 5. McCollum argues his indictment was defective because it failed to state the essential elements of the crime charged. The indictment stated McCollum “did wilfully, unlawfully, feloniously[,] and without authority have in his possession an unauthorized electronic device, cell phone[,] or other contraband item, to-wit: one (1) cell phone and two (2) SIM cards[.]” McCollum asserts the indictment should also have included the phrase: “to take, attempt to take[,] or assist in taking [a] (cell phone) on property belonging to the [Department [of Corrections]” pursuant to the language in Mississippi Code Annotated section 47-5-193.

¶ 6. Section 47-5-193 states in part: “It is unlawful for any ... offender to possess ... [a] deadly weapon, unauthorized electronic device, cell phone, or any of its components or accessories to include, but not limited to, Subscriber Information Module (SIM) cards, chargers, etc., or contraband item[s].” Thus, the statute makes possession of contraband unlawful. The statute also makes the taking of contraband unlawful. That portion of the statute states: “It is unlawful for any person or offender to take, attempt to take, or assist in taking any ... contraband item on property belonging to the department which is occupied or used by offenders, except as authorized by law.” Miss.Code Ann. § 47-5-193. It is clear the statute considers that the possession of contraband and the taking of contraband are two separate crimes.

¶ 7. McCollum was charged with possession of contraband; therefore, the indictment did not need to include the essential elements for the crime of taking of contraband. The indictment properly charged McCollum with the essential elements of possession of contraband in a correctional facility. Accordingly, this issue is without merit.

II. Ineffective Assistance of Counsel

¶ 8. McCollum also argues he received ineffective assistance of counsel because his counsel failed to object to the indictment and permitted a sentence based on the defective indictment. In order to make an ineffective-assistance-of-counsel claim, one must show: (1) counsel’s performance was deficient, and (2) the deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To challenge a guilty plea based on ineffective assistance of counsel, one must show “counsel’s errors proximately resulted in the guilty plea and, but for counsel’s error, [the defendant] would not have entered the guilty plea.” Deloach v. State, 937 So.2d 1010, 1011 (¶ 5) (Miss.Ct.App.2006).

¶ 9. As discussed above, the indictment was not defective and included the essential elements of the crime charged. Thus, McCollum’s entire ineffective-assistance-of-counsel claim fails. Furthermore, McCollum has failed to show, even if the indictment was defective, that he would not have pleaded guilty but for his counsel’s deficient performance. Accordingly, this issue is without merit.

¶10. THE JUDGMENT OF THE WINSTON COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WINSTON COUNTY.

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


author: CARLTON, J.,

text:
    Mark LAMPKIN and Jennifer Lampkin, Appellants v. Tommy THRASH, Tommy Thrash Construction Co., Inc. and Thrash Commercial, Inc., Appellees.
    No. 2010-CA-01897-COA.
    Court of Appeals of Mississippi.
    Feb. 28, 2012.

      Tracy Stidham Steen, attorney for appellants.
    Clyde X. Copeland, Samuel E.L. Anderson, Matthew William Vanderloo, attorneys for appellees.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Mark and Jennifer Lampkin (the Lampkins) filed suit against Tommy Thrash Construction Co., Inc. and Tommy Thrash, individually, (collectively Thrash), seeking damages for negligence and breach of warranty in the construction of their personal residence. The Rankin County Circuit Court granted Thrash’s motion to dismiss the Lampkins’ complaint as time-barred pursuant to Mississippi Code Annotated section 15-1-41 (Rev. 2003). The Lampkins now appeal, claiming the circuit court erred in granting Thrash’s motion to dismiss because an issue of material fact existed which should have been submitted to the jury. The Lampkins also claim that the circuit court erred in denying the Lampkins’ subsequent motion for reconsideration and motion to amend, stating that such a denial constituted an injustice in contradiction of Mississippi Rule of Civil Procedure 15(a). Finding no error, we affirm the judgment of the circuit court.

FACTS

¶ 2. On June 30, 1999, the Lampkins and Thrash entered into a construction agreement to build the Lampkins’ personal residence in Rankin County, Mississippi. Upon moving into their new home in February 2000, the Lampkins began noticing problems with the residence, including, but not limited to, extensive cracking inside and outside of the home, shifting, and separating of the flooring and door jams, as well as improper drainage.

¶ 3. In July 2002, Thrash retained engineers from Ewing and Ray to determine the cause of the damage to the Lampkins’ home. After performing tests on soil samples, the engineers discovered significant problems existed with the soil beneath the home. To improve the condition of the property, the engineers recommended the installation of French drains.

¶ 4. In July and September 2003, Thrash again retained Ewing and Ray to install elevations and to repair the foundation on the property. In late 2007, major issues resurfaced with the home. John Ray of Ewing and Ray advised Jennifer that Thrash failed to build the home “according to code.” Ray recommended that the Lampkins install two French drains with gutters and downspout extensions and gutter screens to improve the condition. In June 2008, the Lampkins installed the drains. However, additional damage to the property occurred after the installation of the drains.

¶ 5. The Lampkins filed suit against Thrash on January 15, 2010, for negligence and breach of implied and express warranties. The Lampkins assert that they delayed filing suit until 2010 because Thrash continued to represent to the Lampkins that he would improve the property’s condition. The Lampkins claim that they detrimentally relied on Thrash’s representations.

¶ 6. Thrash filed a motion to dismiss the Lampkins’ claims based on the six-year statute of repose set forth in section 15 — 1— 41, maintaining that the Lampkins’ claims were time-barred. The circuit court granted the motion to dismiss. The Lampkins filed a motion for reconsideration and a motion to amend, which the circuit court subsequently denied. The Lampkins now appeal.

STANDARD OF REVIEW

¶ 7. This Court employs a de novo standard of review of a motion to dismiss. Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1275 (¶ 6) (Miss.2006). “When considering a motion to dismiss, the allegations in the complaint must be taken as true[,] and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim.” Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So.2d 1234, 1236 (¶ 7) (Miss.1999) (citation omitted). This Court will not disturb the findings of the trial court unless they are manifestly wrong, clearly erroneous or an erroneous legal standard was applied. Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 8) (Miss.2002).

DISCUSSION

I. Motion to Dismiss

¶ 8. On appeal, the Lampkins argue that the circuit court erred in granting Thrash’s motion to dismiss. The Lamp-kins submit that issues of fact exist concerning the improvements made to the property at issue, and they claim that these issues of fact should be submitted to a jury. Although the Lampkins concede that they did not file suit until January 15, 2010, they claim that Thrash continually represented to them that he would improve the property’s condition.

¶ 9. Thrash maintains that the Lamp-kins’ claims are barred by the six-year statute of repose set forth in section 15 — 1— 41, which states in pertinent part:

No action may be brought to recover damages for injury to property, real or personal, or for an injury to the person, arising out of any deficiency in the design, planning, supervision or observation of construction, or construction of an improvement to real property, and no action may be brought for contribution or indemnity for damages sustained on account of such injury except by prior written agreement providing for such contribution or indemnity, against any person, firm or corporation performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property more than six (6) years after the written acceptance or actual occupancy or use, whichever occurs first, of such improvement by the owner thereof. This limitation shall apply to actions against persons, firms and corporations performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property for the State of Mississippi or any agency, department, institution or political subdivision thereof as well as for any private or nongovernmental entity.

¶ 10. Thrash asserts that this statute invalidated the Lampkins’ claims arising out of the construction of their home. The Lampkins state that the improvements that Thrash made to the home over the years, and as recently as June 2008, fall squarely within the plain meaning of the statute. However, the Lampkins submit that the repeated performance of such improvements tolled the running of the statute of repose.

¶ 11. The Lampkins cite to Ferrell v. River City Roofing, Inc., 912 So.2d 448, 454 (¶ 15) (Miss.2005), wherein the Mississippi Supreme Court defined an “improvement” as “a valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement of waste, costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or further purposes.” The Lampkins submit that the work performed on their property constituted improvements, and they contend that the work was intended to enhance the value of the property. The Lampkins claim that the last known improvement to their property was performed as recently as June 2008. The Lampkins argue that each improvement tolled the running of the statute of repose; thus, they maintain that the statute began to run no earlier than June 2008. Although the Lampkins admit that they are uncertain as to each date of performance of the improvements, they submit they should be allowed to engage in discovery and pursue their claims against Thrash.

¶ 12. Thrash claims that the work performed on the Lampkins’ home does not constitute an improvement according to the definition provided in Ferrell. Thrash instead maintains that all work performed on the Lampkins’ property was performed with the purpose of repairing problems allegedly caused by the initial site preparation and construction of the home, and the performance of such repairs failed to establish a new statute of repose under the language of section 15 — 1^41. Thrash points out the Lampkins stated in their amended complaint: “Due to the defects in the preparation of the construction of the home and the actual construction of the residence by [Thrash], the Lampkins’ home has been damaged and is in need of significant repairs,” not “improvements” as defined by Ferrell, 912 So.2d at 454 (¶ 15).

¶ 13. This Court finds that the facts in Ferrell are distinguishable from the case before us. The lawsuit in Ferrell arose from problems stemming from the re-roofing of an existing building — Ferrell claimed that in August 1993, River City Roofing, Inc. (River City) installed a roofing structure over two previously existing roofing structures, instead of replacing the roof. Id. at 451 (¶ 5). Ferrell alleged that he first learned of River City’s actions, which he claims were a violation of the City of Jackson’s building standards and fire code, in December 2001. Id. The circuit judge granted summary judgment in favor of River City after determining that Ferrell’s lawsuit was time-barred by the statute of limitations under section 15-1-41. Id. at 450 (¶ 2). On appeal, the supreme court in Ferrell established: “The installation of a new roof is clearly an ‘improvement to real property’” for purposes of section 15-1-41, thus tolling the statute of limitations. Id. at 454 (¶ 17). The supreme court affirmed the circuit court’s grant of summary judgment based on the determination that Ferrell’s claim was barred under the statute of repose, section 15-1-41. Id. at 458 (¶ 30). In the present case, however, Thrash performed work on the Lampkins’ property to repair problems relating to the original construction. The record shows that the Lampkins were placed on notice of these problems upon moving into the residence, yet they failed to file suit until approximately ten years later. The record supports Thrash’s assertions that all work performed on the Lampkins’ property was performed to repair problems arising from the original construction of the residence; thus, we find such work did not constitute an “improvement.” Accordingly, we hold that the statute of limitations in the present case began to run upon the Lampkins’ occupancy of the residence in February 2000.

¶ 14. The Mississippi Supreme Court has explained that a statute of repose “cuts off the right of action after a specified period of time measured from the delivery of a product or the completion of work. Statutes of repose do so regardless of the time of the accrual of the cause of action or of notice of the invasion of a legal right.” Windham v. Latco of Miss., Inc., 972 So.2d 608, 611 (¶ 5) (Miss.2008). Additionally, the supreme court has stated: “Section 15-1^41 was intended by the [Legislature to protect architects, buildersf,] and the like who have completed their jobs and who have relinquished access and control of the improvements.” W. End Corp. v. Royals, 450 So.2d 420, 424 (Miss.1984). Thrash argues that in the present case, the date of occupancy, February 2000, is the date that commenced the running of the six-year time period established by section 15 — 1—41.

¶ 15. The Lampkins assert that in Windham, 972 So.2d at 612 (¶ 7), the supreme court carved out a narrow exception to the six-year time limit set forth in section 15-1-41, explaining that, if proven, an act of fraudulent concealment tolls the statute of repose. In discussing the applicability of equitable estoppel to statutes of repose, the supreme court in Windham further opined: “The logic supporting the availability of common-law equitable estop-pel as a remedy to bar application of a statute of repose is compelling. Equity mandates that wrongdoers should be es-topped from enjoying the fruits of their fraud.” Id. The Lampkins submit that they were unaware that their home was not built according to code until late 2007. The Lampkins claim that they should be allowed to engage in discovery in order to demonstrate the requirements of equitable estoppel, thus preventing Thrash' from benefitting from his alleged wrongdoings.

¶ 16. However, Thrash submits that the Lampkins failed to raise the argument of fraudulent concealment or equitable estop-pel in their response to Thrash’s motion to dismiss. The record shows that the Lampkins first raised the argument of fraudulent concealment in their motion for reconsideration and motion to amend the complaint. Thrash further states that although the Lampkins, in their amended complaint, claim fraudulent concealment by Thrash, the Lampkins failed to provide any factual claims in support of this claim in their pleadings, as required by Rule 9(b). To prove fraud, the plaintiff is required to show by clear and convincing evidence: (1) a representation, (2) that is false, (3) that is material, (4) that the speaker knew was false or was ignorant of the truth, (5) the speaker’s intent that the listener act on the representation in the manner reasonably contemplated, (6) the listener’s ignorance of the statement’s falsity, (7) the listener’s reliance on the statement as true, (8) the listener’s right to rely on the statement, and (9) the listener’s consequent and proximate injury. In re Estate of Law, 869 So.2d 1027, 1029 (¶ 4) (Miss.2004). Thrash claims that the Lampkins had full knowledge of the foundation problems, and he asserts that he performed the repairs to the property while the Lampkins lived there. Thrash claims that even if the Lampkins had asserted their equitable estoppel argument in the circuit court pleadings, this case does not present the extraordinary circumstance where the Lampkins lacked the ability to protect themselves.

¶ 17. After reviewing the record, we find the work performed on the Lampkins’ property by Thrash after the date the Lampkins moved into their home were repairs to the property. See Smith v. Fluor Corp., 514 So.2d 1227, 1230-81 (Miss.1987). As a result, section 15-1-41 began to run the on date of occupancy of the property in February 2000, ten years before the filing of the present suit. We thus find that the Lampkins’ claim against Thrash is barred by section 15-1-41. Furthermore, our supreme court has held: “Although factual considerations may be involved in determining whether an article of property is an ‘improvement to real property,’ on the basis of the undisputed facts, they do not constitute a genuine issue of material fact which would preclude summary judgment.” Id. Therefore, we find no error in the circuit judge’s grant of the motion to dismiss in favor of Thrash after finding that no genuine issue of material fact existed.

¶ 18. The Lampkins further argue that the circuit court erred in granting Thrash’s motion to dismiss because the determination of whether Tommy Thrash constituted an agent or the principal of Thrash Construction for purposes of liability serves as a question of fact for the jury. The Lampkins maintain that under Fonte v. Audubon Ins. Co., 8 So.3d 161 (Miss.2009), Tommy is Thrash’s principal because he possessed control and the rights of control in the construction as well as in the improvements made to the property at issue.

¶ 19. However, Thrash argues that the construction agreement referenced in the complaint was entered into by Thrash Construction; Tommy was not an individual party to the contract. Further, Thrash cites to Buchanan v. Ameristar Casino Vicksburg, Inc., 957 So.2d 969, 977-78 (¶¶ 27-28) (Miss.2007), in support of its argument that even if Tommy was a principal of Thrash, he would not be liable in the present case because a corporation possesses a legal existence separate and apart from that of its officers and shareholders. Thrash maintains that the Lamp-kins failed to present “facts sufficient to justify piercing” the corporate veil in order to hold Tommy individually liable to the Lampkins. Id. at 976 (¶ 23). We agree and find the record reflects that Tommy serves as an agent of Thrash, and not a principal. We also note that the Lampkins failed to raise a veil-piercing theory in their complaint. This issue is without merit.

II. Motion for Reconsideration and Motion to Amend

¶20. The Lampkins next argue that the circuit court erred in denying their motion for reconsideration and motion to amend their complaint. Specifically, the Lampkins claim that pursuant to Rule 15(a), they should have been permitted to amend their complaint and their first amended complaint to plead thoroughly the fraud allegations that fall within the statutory provisions. The Lampkins submit that amending their complaint would not have delayed or prejudiced Thrash; instead, it would merely have allowed the Lampkins to establish their claims of fraudulent concealment.

¶ 21. A motion for reconsideration is treated as a motion to amend the judgment pursuant to Rule 59(e) of the Mississippi Rules of Civil Procedure, and this motion must be filed within ten days from the entry of the judgment sought to be amended. To succeed on a Rule 59(e) motion, “the movant must show: (i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law or to prevent manifest injustice.” Brooks v. Roberts, 882 So.2d 229, 233 (¶ 15) (Miss.2004). On appeal, we review a circuit court’s denial of a Rule 59 motion under an abuse-of-discretion standard. Id.

¶ 22. Thrash first argues that the circuit judge dismissed the Lampkins’ complaint with prejudice; therefore, nothing remains for the Lampkins to amend. Thrash further contends the Lampkins failed to provide the circuit court with any intervening change in controlling law, new evidence, or the need to correct any clear error that could warrant reconsideration under Rule 59(e). The Lampkins counter that they seek to amend their complaint “to achieve justice.” However, Thrash alleges that the Lampkins requested to amend their complaint to include the fraudulent-concealment claim only after the circuit court dismissed their complaint with prejudice due to the expiration of the six-year statute of repose set forth in section 15-1-41.

¶ 23. The record reflects that the Lampkins previously alleged in their complaint and first amended complaint that Ray with Ewing and Ray advised Jennifer that Thrash failed to build the home “according to code.” In their subsequent motion for reconsideration and motion to amend, the Lampkins again cited the statement by Ray, and they also claimed they sought to amend their complaint “to allege fraud.” After reviewing the record, we find that the Lampkins’ motion for reconsideration and motion to amend failed to direct the circuit court’s attention to any new evidence not previously available in the two prior complaints, and the motions also failed to provide any errors of law or show manifest injustice. Bell, 467 So.2d at 661. We therefore find no abuse of discretion in the circuit judge’s denial of the Lampkins’ motion for reconsideration and motion to amend.

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

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

      . The Lampkins did not install the recommended French drains until 2008.

      . Mississippi Rule of Civil Procedure 9(b): "In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other conditions of mind of a person may be averred generally.”