author: RANDOLPH, Presiding Justice,

text:
    John O’CONNOR a/k/a John Allen O’Connor a/k/a John O’Conner v. STATE of Mississippi.
    No. 2012-KA-00294-SCT.
    Supreme Court of Mississippi.
    June 20, 2013.
    Rehearing Dismissed Sept. 12, 2013.

      Office of State Public Defender by Justin Taylor Cook, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before RANDOLPH, P.J., LAMAR and KITCHENS, JJ.
   RANDOLPH, Presiding Justice,

for the Court:

¶ 1. John O’Connor was indicted for two counts of gratification of lust: count one for the touching or rubbing of B.W. at a time when O’Connor was over the age of eighteen and B.W. was under the age of sixteen, and count two for the touching or rubbing of A.R. at a time when O’Connor was over the age of eighteen and A.R. was under the age of sixteen. A jury found O’Connor not guilty on count one. Before the Court is O’Connor’s direct appeal of his conviction on count two. O’Connor was sentenced to fifteen years, with ten years to be served and five years suspended, and five years of supervised probation. O’Con-nor challenges the trial court’s admission of evidence of a previous sexual offense involving a minor, of which he had been convicted by a Florida court. He also argues that a statement by the State during its closing argument constituted prose-cutorial misconduct warranting reversal. We find both arguments without merit, and affirm O’Connor’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2. On Saturday, February 6, 2010, Charles “Chuck” Perry and his wife, Gale Perry, hosted a party to celebrate Chuck’s fifty-second birthday. The Perrys held the party on their property, at a restaurant and bar that they had converted from a workshop, located about one-hundred or one-hundred-fifty yards — a two- or three-minute walk — from their house.

¶ 3. Chuck’s son, Trey Perry, and his wife, Janell Perry, traveled from Florida for the party, along with O’Connor, his girlfriend, Chantal Williams, O’Connor’s and Williams’s four-year-old son, Christian, and twelve-year-old B.W., who was to help with babysitting while the adults attended the party. Trey, Janell, O’Con-nor, Chantal, Christian, and B.W. all stayed at Chuck and Gale’s house for the weekend. O’Connor previously had visited Chuck’s and Gale’s house with Trey, and Chuck testified that O’Connor and Chantal were staying in the same room where O’Connor had slept on his prior visits. Kristie Kraft, Chuck’s and Gale’s daughter, and Kristie’s six-month-old daughter, Perry Kate, were also at the house that night. A.R., a longtime babysitter of Chuck’s and Gale’s grandchildren, also stayed at the house to help B.W. babysit during the party.

¶ 4. On Saturday afternoon, the adults left the house and walked to the restaurant for the party. A.R. and B.W. stayed at the house with the minor children. A.R. testified that O’Connor made repeated trips back to the house throughout the evening, “like he was looking for something.” The older children fell asleep on couches in the living room. A.R. and B.W. lay on either side of Perry Kate in a queen-size bed, ensuring that Perry Kate was safely asleep between them, and then they fell asleep.

¶ 5. Subsequently, A.R. was awakened by the presence of a fourth person in the bed. She realized that B.W. also was awake. A.R. asked B.W. who was in the bed with them. In response, B.W. shined a light from her cell phone on O’Connor and told A.R. “That’s John.” A.R. said “ Well, go get Chantal and tell her to get him out of here.’ ” A.R. testified that “when [B.W.] tried to get up, she couldn’t, because he was holding on to her.” B.W. finally was able to get up, and left to get Chantal, but came back and told A.R. that she couldn’t wake Chantal. A.R. testified that B.W. again left to attempt to wake Chantal, and that:

Whenever [B.W.] left the second time to go get Chantal up, he turned over and put his hand up under my shirt, and then on by back side, and my butt. And then I jumped up and I screamed.

A.R. testified that she and B.W. then went to Chantal’s room and woke her up. Chantal testified that only B.W. entered her room to wake her up. Chantal went to the girls’ room and told O’Connor to get up. He followed her to their room, where they both went back to sleep. Chantal testified that she:

Mailed his name maybe once or twice, and he didn’t wake up. He sleeps pretty hard when he drinks. I actually went and shook him, and he looked at me, and I told him to get up, “you’re in the wrong bed,” and we went back to sleep.

¶ 6. A.R. and B.W. then sat on their bed, talking about what had happened. A.R. testified that she “posted it on Facebook” and that shortly thereafter, Kristie walked into the house. They told Kristie what had happened, and Kristie left to get Chuck. Chuck testified that, during the party, Kristie walked up to him and said that “‘the girls just called or texted and said that John O’Connor was in the bed with them, touching them in wrong ways.’ ” Chuck left the party and went straight to the room where A.R., B.W., and Perry Kate were staying. After talking to A.R. and B.W., Chuck called out “John O’Connor, and ... told him to get out of my house now.” Chuck testified that O’Connor would not get out of bed, so Chuck went to the living room and decided to call the sheriffs department. He yelled to O’Connor “ Well, if you won’t get up, I’ve got somebody that will get you up.’ ” Chuck testified that:

I called the law, and, finally, he come in there, gathering his clothes up. And the lady at the sheriffs department said, “If he tries to leave to call them back.” And that’s — they did. They got in the car and tried to leave.

Chantal testified that “I went and got Mr. O’Connor. We went back to bed. And then the next time I wake up, everything is just chaos.” She testified that:

Mr. Perry came in the room and started screaming and told Mr. O’Connor to get out of bed and told him to get out of his house. And then he started screaming and cussing and went to ... [Janell’s] room, and then she had came to me and was hysterical.... And nobody really knew what was going on, and I was just trying to figure out what was going on.... John had gotten up, gotten out of the house, and he was telling us to leave.

O’Connor, Chantal, and Christian left the house. Chantal explained that “Mr. Perry told us to leave, so we were leaving” and that, when they left, she was not aware that the sheriffs department had been called.

¶ 7. Two deputies with the Yazoo County Sheriffs Department were dispatched to the Perrys’ house. As they approached the house, they received a dispatch that the suspect had left in a white vehicle. They stopped the white vehicle and took O’Connor back to the Perrys’ house for further investigation. Deputy Jason Bright testified that O’Connor was able to walk normally from his vehicle to the patrol car, along “the side of the road with a ditch there leaning.” Upon arriving at the house, Bright interviewed A.R. and B.W., took statements from Kristie and Chantal, and prepared a report.

¶ 8. O’Connor subsequently was indicted for two counts of gratification of lust: count one for the touching or rubbing of B.W., and count two for the touching or rubbing of A.R. He filed a motion for discovery, and, in response, the State disclosed the following potential witnesses, among others:

[ Witness 1] [Florida address] Witnesses [sic] will testify to prior acts of the defendant in which he crawled into her sleeping area when she was about 14 and rubbed on her vaginal area.
Jessica Atkinson [Florida address] Witness will testify to defendant prior bad act of sexually molesting her when she was 9. She is also the daughter of the defendant.

The State’s discovery responses did not mention any prior charges, conviction, or acquittal related to O’Connor’s prior sexual acts with minors.

¶ 9. O’Connor filed a motion in limine to “[prohibit] any reference at trial to prior offenses with which he was charged and any prior convictions in the State of Florida or elsewhere....” At a pretrial motion hearing, the trial court denied the motion, finding as follows:

The law is pretty clear in Mississippi that evidence of a sexual offense, other than the one charged, which involved another victim other than the victim charged, is admissible subject to the reason for the attempt to admit it and subject to the weighing under [Mississippi Rules of Evidence] 404 and 408....
Basically, my understanding from the State is that this information will be attempted to be admitted to show common scheme of plan, motive absence mistake. It [can’t] be admitted to show conformity that he did it before, so he’s doing it again. Can’t go to character.... [T]he Court finds that the probative value ... to show absence of mistake or common scheme o[r] plan outweighs any substantial prejudice.

¶ 10. Trial began on August 18, 2011. However, when the father of a witness attacked O’Connor in the jury’s presence during trial, the trial court declared a mistrial. A second trial began on November 28, 2011.

¶ 11. At trial, the first mention of O’Connor’s previous conviction for a sexual offense involving a minor was in O’Con-nor’s opening statement. The State, during its opening statement, told the jury that it would hear from Jessica Atkinson-Hamm that, when spending the night with O’Connor’s daughter, Katie, she awoke to O’Connor touching her on numerous occasions, until she finally reported the abuse to her parents. The prosecutor did not mention a trial or conviction related to Atkinson-Hamm’s testimony. In O’Con-nor’s opening statement, O’Connor elected to inform the jury that he had gone to trial in Florida and had been convicted of a misdemeanor for a charge involving Atkinson-Hamm. Counsel further stated in opening statement that O’Connor also had been found not guilty of a separate charge in Florida involving another young girl. The prosecutor asked to approach the bench, and explained to the judge and defense counsel that the second Florida victim was not testifying, and that the State had intended only to present evidence of O’Connor’s prior sexual misconduct with Atkinson-Hamm. Defense counsel first introduced evidence (opened the door) regarding O’Connor’s prior conviction.

¶ 12. In its case in chief, the State adduced testimony from Jessica Atkinson-Hamm that O’Connor had molested her in Florida when she was between the ages of eleven and thirteen. During Atkinson-Hamm’s direct testimony, the State inquired only about O’Connor’s acts of sexual conduct and abuse upon Atkinson-Hamm. The State did not ask about any criminal charges, trials, or convictions. Atkinson-Hamm testified that O’Connor and her father had been friends, and that she had been friends with O’Connor’s daughter, Katie. Atkinson-Hamm described three specific occasions on which she had been asleep with Katie, and was awakened to find O’Connor lying with them with his hand in her (Atkinson-Hamm’s) pants. On the first two occasions, O’Connor left when Atkinson-Hamm rolled closer to Katie so that any further activity would wake O’Connor’s daughter. However, on the third occasion, Atkinson-Hamm awoke with O’Connor’s finger already inside her vagina. Atkinson-Hamm testified that, on a fourth occasion, when she was thirteen or fourteen years old, she was babysitting Christian, and awoke “with his [O’Con-nor’s] penis inside me.” She testified that “I just woke up and he was doing it, and I got him to stop.” On cross-examination by O’Connor, Atkinson-Hamm was asked about criminal charges and conviction in a Florida court, including charges involving a different victim, which resulted in a not-guilty verdict. The State again asked to approach the bench, and repeated that the State intended to present only evidence of O’Connor’s sexual misconduct related to Atkinson-Hamm, and not with another Florida girl.

¶ 13. Chantal testified for the defense. During cross-examination, Chantal responded affirmatively when the State asked whether she was aware that O’Con-nor previously had been accused in Florida of molesting a twelve- or thirteen-year-old girl on a camping trip by getting into bed with her in the middle of the night, and of molesting Jessica Atkinson-Hamm by going into her bedroom in the middle of the night. She stated that “He was accused of it. I don’t believe that he actually committed those crimes.” Chantal further testified that O’Connor was charged as a result of the camping incident, but was acquitted. She did not specify the crime with which he was charged.

¶ 14. During closing argument, the State argued, without objection, as follows,:

You mean to tell me a man who, on at least two prior occasions, with two different girls, not sisters, but two different girls, two different victims, don’t really know each other — one girl going on a camping trip with him, in the middle of the night she wakes up and he’s molesting her and fingering her and all inside her panties, was that an accident? Was that a mistake? ...
And then we come back and a little while later we’ve got another victim, another victim down in Florida, Jessica. You all saw her. Best friend of the family. Treated him like that was his father because, see, when you have a problem, you ain’t got no boundaries. It doesn’t matter. It doesn’t matter if that’s your best friend’s child. You’ve got desires, lustful desires. And whenever you’ve got an opportunity, that’s basically what happens....
And then his whole thing, his whole thing that he wants to talk about, “Well, you know down in Florida, they found me guilty of a misdemeanor.” Well, shame on Florida! That’s what I say. Lewd, lascivious behavior, molesting a victim under 12 years of age when he’s 18 years [or] older, that’s a misdemean- or. I wonder if they knew afterwards he’s still doing the same thing when he gets to Mississippi.

The jury convicted O’Connor of one count of gratification of lust, and the trial court sentenced him to fifteen years, with ten years to be served and five years suspended, and five years of supervised probation.

ISSUES

¶ 15. O’Connor raises the following issues on appeal:

1. Whether the trial court abused its discretion by allowing the State to introduce evidence of O’Connor’s prior sexual misconduct with prepubescent females under Mississippi Rules of Evidence 403 and 404(b).
2. Whether the district attorney committed prosecutorial misconduct warranting reversal by making an impermissible “send-a-message” argument during closing argument.

DISCUSSION

I. The trial court did not abuse its discretion by admitting evidence of O’Connor’s prior sexual offenses involving minors.

¶ 16. We apply an abuse-of-discretion standard when reviewing a trial judge’s decision regarding the admission or exclusion of evidence. Hargett v. State, 62 So.3d 950 (Miss.2011).

¶ 17. O’Connor argues that the trial court abused its discretion by admitting evidence, which O’Connor introduced, including that he previously had been charged with and (1) convicted of one charge of engaging in sexual misconduct with a minor, Jessica Atkinson-Hamm, and (2) acquitted of a separate charge of sexual misconduct with another minor, because the probative value of the evidence was significantly outweighed by its prejudicial effect. He argues that admitting the evidence that he adduced regarding sexual-misconduct accusations resulting in an acquittal “is unfair” and “raises significant concerns regarding fairness and due process.” However, “[a]n appellant cannot complain on appeal of alleged errors which he invited or induced.” HWCC-Tunica, Inc. v. Jenkins, 907 So.2d 941, 942 (Miss.2005) (citation omitted). It was O’Connor, over the State’s protestations, who introduced evidence of his prior charge that resulted in an acquittal and repeatedly referenced his conviction related to the prior wrongs of which Atkinson-Hamm testified. O’Connor’s assignment of error regarding the admission of the evidence — which O’Connor introduced — of his prior charges, acquittal, and conviction in Florida clearly is without merit.

¶ 18. As to the alleged error regarding admission of the evidence of O’Connor’s prior wrongs involving Atkinson-Hamm, we have provided that, to determine whether evidence of a prior crime, wrong, or act is admissible:

“The evidence offered must (1) be relevant to prove a material issue other than the defendant’s character [under Mississippi Rule of Evidence 404(b)]; and (2) the probative value of the evidence must outweigh the prejudicial effect [under Mississippi Rule of Evidence 403].” ... [ EJvidence which passes the two-part test shall be deemed admissible under both Rule 404(b) and Rule 403.

Welde v. State, 3 So.3d 113, 117 (Miss.2009) (citations omitted). O’Connor does not argue that the evidence of his prior sexual-misconduct charges and conviction was not relevant to a noncharacter issue under Rule 404(b). Rather, he makes a Rule 403 argument: that the evidence “would be overwhelmingly prejudicial” and “the allegations lacked the probative value to overcome such prejudice.”

¶ 19. Even if O’Connor did argue that the evidence of prior sexual misconduct with minors was not offered for a noncharacter purpose under Rule 404(b), that argument still would be without merit. We have held that evidence of prior sexual misconduct is admissible under Rule 404(b) where it discloses as the defendant’s motive “a seemingly uncontrollable desire to partake in pedophilic sexual activities with young and developing female juveniles,” and where the “defendant’s means of accomplishing these activities on past occasions bear substantial resemblance to each other and with the present offense.” Gore v. State, 37 So.3d 1178, 1186 (Miss.2010) (citations omitted). We have explained that evidence of prior sexual assaults may be admitted under Rule 404(b) to show “a common plan, scheme, or system ... utilized ... repeatedly to perpetrate separate but very similar crimes[,]” such that “[o]ne could infer from these common features that defendant had a system that involved taking advantage of the parent-child relationship, particularly his control over his daughters, to perpetrate abuse.” Green v. State, 89 So.3d 543, 551 (Miss.2012) (citations omitted). The evidence of O’Connor’s other crimes, wrongs, and acts was offered to show that O’Con-nor had a pattern of perpetrating abuse against prepubescent girls by violating them while they were sleeping. Testimony from prosecution and defense witnesses established that O’Connor repeatedly had placed himself in bed with young girls under similar circumstances. We conclude that the evidence of O’Connor’s other crimes, wrongs, and acts satisfied Rule 404(b), because it was relevant to the non-character issues of motive, pattern or practice, and absence of mistake, as declared in Gore and Green.

¶20. We likewise find that the trial court did not abuse its discretion by failing to exclude the evidence under Rule 403, as O’Connor contends. Rule 403 provides that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.... ” Miss. R. Evid. 403 (emphasis added). We have explained that:

Under Rule 403, the exclusion of prejudicial evidence is permissive; that is, if a trial court determines that the prejudicial effect of evidence substantially outweighs its probative value, it is not obligated to exclude the evidence, but may do so at its discretion.

Ross v. State, 954 So.2d 968, 993 (Miss.2007) (citation omitted). “[T]he weighing and balancing task required by Rule 403 ... asks only that a judge rely on his/her own sound judgment.” Jones v. State, 920 So.2d 465, 476 (Miss.2006) (citation omitted). The trial judge addressed Rule 403 and concluded “that the probative value ... to show absence of mistake or common scheme of plan outweighs any substantial prejudice.” Thus, the trial judge relied on her own sound judgment and found that the probative value of the evidence—for the noncharacter purposes of absence of mistake or common scheme or plan, as recognized by this Court in Green and Gore—was not substantially outweighed by the danger of unfair prejudice. In doing so, the trial court did not abuse its discretion by admitting the evidence.

¶ 21. As evidence of O’Connor’s prior conviction and acquittal was at his own instance, we cannot declare that the trial judge erred. O’Connor’s claim challenging its admission is without merit. Nor can we find that O’Connor was prejudiced, for the jury exercised its discretion and sound judgment, finding O’Connor not guilty on one of the separate counts in this very case. He was acquitted of the charges involving B.W. As O’Connor was found not guilty of one of the counts in this case, the evidence of his conviction and other acts of sexual misconduct with other minor girls clearly did not deprive him of a fair trial.

II. The State did not commit prose-cutorial misconduct warranting reversal by commenting on O’Connor’s prior conviction in a Florida court for a sexual offense involving a minor.

¶ 22. O’Connor argues that prose-cutorial misconduct during the State’s closing argument warrants reversal. Specifically, he argues that the State made an improper “send-a-message” argument by stating the following to the jury:

And then his whole thing, his whole thing that he wants to talk about, “Well, you know down in Florida, they found me guilty of a misdemeanor.” Well, shame on Florida! That’s what I say. Lewd, lascivious behavior, molesting a victim under 12 years of age when he’s 18 years [or] older, that’s a misdemean- or. I wonder if they knew afterwards he’s still doing the same thing when he gets to Mississippi.

Whether the argument was a “send-a-message” argument is dubitable at best, and the defendant offers little in logic to support same. But even if we were to assume, arguendo, that it was a “send-a-message” argument, the defendant’s claim would fail.

¶ 28. To determine whether a send-a-message argument constitutes reversible error, we apply two threshold questions, followed by a two-prong test, as set forth in Spicer v. State, 921 So.2d 292 (Miss.2006). First, we determine whether the argument is procedurally barred because defense counsel failed to object to the statement at trial. Spicer, 921 So.2d at 317. However, even in the absence of a contemporaneous objection, we will review on appeal a claim that a prosecutor made an improper send-a-message argument “if the argument is so ‘inflammatory’ that the trial judge should have objected on his own motion.” Id. (quoting Payton v. State, 785 So.2d 267, 270 (Miss.1999) (quoting Gray v. State, 487 So.2d 1304, 1312 (Miss.1986) (quoting Griffin v. State, 292 So.2d 159, 163 (Miss.1974)))).

¶ 24. For the second threshold inquiry, we consider the surrounding circumstances and ask whether defense counsel made any comments provoking the prosecution to make the challenged statement. Spicer, 921 So.2d at 318 (citing Ishee v. State, 799 So.2d 70, 75 (Miss.2001) (quoting Edwards v. State, 737 So.2d 275, 299 (Miss.1999))). In other words, we ask “whether, in light of the surrounding circumstances, defense counsel invited the statement.” Long v. State, 52 So.3d 1188, 1193 (Miss.2011) (citing Spicer, 921 So.2d at 318). However, even if the statement was unprovoked, it is not per se reversible error. Spicer, 921 So.2d at 318 (citing Payton, 785 So.2d at 271).

¶25. Noting that we had “not given further guidance to determine when it might be reversible error,” in Spicer, we adopted a two-prong test enunciated by the Ohio Court of Appeals. Spicer, 921 So.2d at 318 (citing State v. Grimes, 2005 WL 120064 (Ohio Ct.App. Jan.21, 2005)). “[T]he court must determine (1) whether the remarks were improper, and (2) if so, whether the remarks prejudicially affected the accused’s rights.” Spicer, 921 So.2d at 318 (citation omitted).

¶ 26. We need not proceed beyond the first threshold question of the Spicer analysis. O’Connor admittedly did not object to the statement that he now challenges on appeal. We repeatedly have provided that, though the failure to object contemporaneously generally waives a claim of prosecutorial misconduct during closing argument, we will review such a claim if the prosecutor’s statement was so inflammatory that the trial judge should have objected on his own motion. Spicer, 921 So.2d at 317; Payton, 785 So.2d at 270; Gray v. State, 487 So.2d at 1312; Griffin v. State, 292 So.2d at 163.

¶ 27. We find that the prosecutor’s statement was not so inflammatory that the trial judge should have objected on her own motion. Evidence that O’Connor previously had engaged in sexual misconduct with minors had been introduced at trial to show that O’Connor had a pattern or practice of engaging in sexual misconduct with prepubescent girls and had not mistakenly gotten into bed and touched A.R. and B.W. on the occasion at issue, as O’Connor had argued. Additionally, it was O’Connor— not the State — who first introduced the Florida conviction during opening argument, then questioned both Atkinson-Hamm and Chantal about it on the witness stand, and then again addressed it in closing argument, telling the jury that:

Despite all of the awful things [Jessica Atkinson Hamm] said today, there in Florida ... citizens just like yourselves listened to all she had to say ... but they said ... “We find him guilty of a misdemeanor ... [T]hey want you to convict John O’Connor today ... because of something that happened in Florida three or four years ago for which he was found guilty of a misdemeanor and served his time.

Thus, after O’Connor broached the issue repeatedly throughout the trial, O’Connor dubiously now argues that the State committed reversible misconduct by addressing O’Connor’s trial arguments and solicited testimony about the prior conviction. We conclude that the prosecutor’s statements during closing argument were not so inflammatory that the trial judge should have intervened sua sponte. Accordingly, we find that the defendant waived this assignment of error by failing to object during the prosecution’s closing argument.

¶ 28. We recognize that Spicer reviewed the merits of a challenge to a prosecutor’s closing argument to which defense counsel had not contemporaneously objected without applying the proper “so inflammatory” standard. Although Spicer quoted Payton’s “so inflammatory” language, it proceeded to the merits based on its finding that the statement “track[ed] examples where this Court has found prosecutorial misconduct.” Spicer, 921 So.2d at 317. Long based its conclusion on the “so inflammatory” standard, but also referred to the standard applied in Spicer. Long, 52 So.3d at 1193-94. In Long, the defense failed to object contemporaneously, but challenged the following statement on appeal:

You know, it[’]s not a murder case, but the sale of drugs, the illegal sale of drugs is important, ladies and gentlemen. It’s important to control it, and you do so by stopping those that get caught selling drugs illegally, which is exactly what this man did. The defendant sold drugs illegally and — and he’s guilty, and it’s time for him to be held accountable. He’s selling drugs near a park as you pass through on your way to I don’t know where.... I’m just glad we caught him when we did.

Id. at 1193. The Long Court declined to proceed to the Spicer test, finding both that the challenged statement was not so inflammatory that the trial judge should have objected on his own motion and that it did “not rise to the level of those statements which this Court has found to be improper.” Long, 52 So.3d at 1193-94. The Long Court explained that:

the State’s remarks were simply reiterating the jury’s duty set forth in the jury instructions. The members of the jury were charged with the duty to make a finding of guilt based on the testimony and evidence presented at trial. By stating that the illegal sale of drugs must be controlled, “which is exactly what [Long] did,” the State was suggesting that the jury find Long guilty if they believed that the evidence and testimony had proved that Long sold drugs illegally. Therefore, the State’s closing remarks, taken in context, were not “so ‘inflammatory’ that the trial judge should have objected on his own motion.”

Id. at 1194 (emphasis added) (citations omitted). Thus, both Long and Spicer used language comparing the challenged statement with language that had been found improper, though Long ultimately based its conclusion on the longstanding “so inflammatory” standard.

¶29. We hold that the proper inquiry is not whether the language “tracks” language found to be misconduct, for such a standard would require the Court prematurely to consider the merits of the claim to resolve a so-called “threshold” question. Moreover, such a standard essentially would negate the requirement of contemporaneous objecting during closing argument — if we will review, in the absence of a contemporaneous objection, any claim that a statement during closing argument was improper so long as it “tracks” language found to be misconduct, then the failure to contemporaneously object would never operate as a waiver. Accordingly, to resolve the confusion created by Spicer, we now declare that the “so inflammatory” standard is the proper threshold inquiry for appellate review of claims of prosecutorial misconduct during closing argument.

CONCLUSION

¶ 30. We conclude that the trial court did not err by admitting evidence of O’Connor’s prior sexual misconduct with girls around the same age as the alleged victim in this case. We further find that O’Connor waived his prosecutorial-miscon-duct claim by failing to object contemporaneously at trial. Accordingly, we affirm O’Connor’s conviction and sentence.

¶ 31. COUNT II: CONVICTION OF GRATIFICATION OF LUST AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CONDITIONS, AFFIRMED. APPELLANT SHALL SERVE TEN (10) YEARS WITH CREDIT FOR TIME PREVIOUSLY SERVED, FIVE (5) YEARS SUSPENDED, AND PLACED ON FIVE (5) YEARS OF SUPERVISED PROBATION.

WALLER, C.J., LAMAR, KITCHENS, CHANDLER, PIERCE AND COLEMAN, JJ„ CONCUR. DICKINSON, P.J., AND KING, J., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . B.W. was bom in October 1997.

      . A.R. was born in February 1997.

      .Chantal testified that, around ten or eleven o’clock, she went to sleep in the bedroom that she and O’Connor were sharing for the weekend.

      . At the time of trial, Jessica Atkinson-Hamm.

      . Atkinson-Hamm's trial testimony revealed that she is not O'Connor's daughter, but was close friends with O’Connor’s daughter and stayed overnight at O’Connor's home on numerous occasions.

      . Mississippi Rule of Evidence 404(b) provides that:
      Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
      Miss. R. Evid. 404(b).


source: Caselaw Access Project

author: KITCHENS, Justice,

license: Public Domain

text:
    Billy Dale HILL a/k/a Billy D. Hill v. STATE of Mississippi.
    No. 2012-CP-00858-SCT.
    Supreme Court of Mississippi.
    Aug. 29, 2013.
    See also 582 So.2d 428, 388 So.2d 143, and 339 So.2d 1382.

      Billy Dale Hill, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, John R. Henry, Jr., attorneys for appellee.
    Before RANDOLPH, P.J., LAMAR and KITCHENS, JJ.
   KITCHENS, Justice,

for the Court:

¶ 1. In this appeal from the denial of his post-conviction motion for DNA testing, Billy Dale Hill claims that the circuit court had destroyed biological evidence without notifying him as required by Mississippi Code Section 99 — 49—1(3)(f)(ii)(1) (Supp. 2012). The evidence in question was a laboratory slide containing what was purported to be sperm cells collected during a 1974 autopsy. The only relief sought by Hill is that we “order appropriate remedies and impose sanctions” because of the failure to give proper notice. Miss.Code Ann. § 99-49-1(5) (Supp.2012) (“If the court finds that biological evidence was destroyed in violation of the provisions of this section, it may impose appropriate sanctions and order appropriate remedies.”) Given the uncontradicted proof that the circuit court did not have the evidence in question, we find no basis for Hill’s claim, and we affirm the judgment of the trial court.

I.

¶ 2. On October 11, 1974, Billy Dale Hill was tried and convicted of capital murder while engaged in the commission of the crime of rape and was sentenced to death. Hill v. State (“Hill I”), 339 So.2d 1382 (Miss.1976). This Court reversed his conviction, and on remand, Hill pled guilty to the separate crimes of murder and rape and was sentenced by the trial judge to two consecutive terms of life imprisonment. Hill v. State (“Hill II”), 388 So.2d 143, 144 (Miss.1980).

¶ 3. In a 2011 order, this Court granted two post-conviction petitions filed by Hill. First, the Court vacated his sentence of life in prison for the rape conviction and remanded the matter to the circuit court for resentencing “to a definite term reasonably expected to be less than life.” (Quoting Luckett v. State, 582 So.2d 428, 430 (Miss.1991)). Second, Hill was granted leave to proceed in the circuit court with a motion for DNA testing, and the trial court was directed to order the testing of existing biological evidence.

¶4. Hill had requested DNA testing of all biological evidence, but the only evidence he specifically identified in his petition was a laboratory slide. To demonstrate that this evidence existed, Hill attached to his petition an excerpt from the 1974 trial transcript, in which the pathologist who performed the autopsy, Dr. Van Philpot, testified that he had collected fluid from the deceased’s vagina and had placed the sample on a laboratory slide. Dr. Philpot said that, after viewing the sample under a microscope, he had determined that it contained sperm cells.

¶ 5. After this Court granted his petitions, Hill timely filed his motion for DNA testing in the Calhoun County Circuit Court. This motion was considered at an evidentiary hearing, along with his resen-tencing. At the conclusion of the hearing, the court sentenced Hill to forty-four years on the rape conviction, but found no available relief regarding his motion for DNA testing. Based on the State’s witnesses’ testimony at the evidentiary hearing, and the record from his capital murder trial, the court found that “no DNA evidence exists to be tested that the Petitioner requests to be tested.” As with his petition to this Court, Hill initially had requested that the circuit court order the testing of all biological evidence; but the only item at issue during the evidentiary hearing was the laboratory slide referenced by Dr. Philpot.

II.

¶ 6. In the case before us, Hill does not challenge his sentence and has limited his appeal to the trial court’s ruling regarding his motion for DNA testing. The issues raised present questions of fact and questions of law. When reviewing a trial court’s judgment on a petition for post-conviction relief, issues of law are reviewed de novo, but we will not reverse factual findings unless the trial court’s assessment of the facts was “clearly erroneous.” Presley v. State, 48 So.3d 526, 528-29 (Miss.2010) (citing Brown v. State, 731 So.2d 595, 598 (Miss.1999)).

¶ 7. Hill argues that he was denied due process of law, claiming that the circuit court had destroyed the laboratory slide without giving him notice as required by Mississippi Code Section 99^19-1. See Miss.Code Ann. § 99 — 49—1(3)(f)(ii)( 1) (requiring that, prior to the destruction of biological evidence collected during the investigation or prosecution of a criminal matter, the State must give notice to the person(s) convicted of that crime). While it is undisputed that the court destroyed some of the exhibits from his capital murder trial without giving the required notification, the trial judge found that the slide was not in the court’s possession. In his brief, Hill does not give any explanation for his assertion to the contrary, and he did not dispute this finding of fact in the proceedings below.

¶ 8. The lower court examined the record from the 1974 trial, and the only exhibit from the trial related to Dr. Philpot’s collecting “sperm cells” was a summary of his autopsy report. The laboratory slide was never received into evidence or marked for identification; and nothing in the transcript indicates whether the slide still was in existence at the time of trial.

¶ 9. Calhoun County Circuit Clerk Deborah Dunn testified at the evidentiary hearing that she had never seen the laboratory slide referenced by Dr. Philpot during the various times she personally had handled the court file and the exhibits. She also testified at length about the steps she took to document the contents of the court file. According to Dunn, before any of the exhibits from Hill’s capital murder trial were destroyed, she had taken a photograph of everything. She testified that there were some empty envelopes marked with exhibit numbers, and that she either had kept the empty envelopes or had made photocopies of the outside.

¶ 10. Ample evidence established that the laboratory slide was not stored with the circuit court. Indeed, it would be unusual for a forensic pathologist to have deposited with the trial court any biological evidence collected during an autopsy. Because the laboratory slide was not in the court’s custody, it could not have been destroyed along with the exhibits in 2010. We find no error in the trial court’s reaching this conclusion, and Hill’s bare assertion that the circuit clerk destroyed the slide simply cannot establish that this factual finding by the circuit court was “clearly erroneous.” Presley, 48 So.3d at 528-29.

III.

¶ 11. While we find that Hill is not entitled to any relief on appeal, we do call attention to the DNA Preservation Act and the duties thereunder. 2009 Miss. Laws, Ch. 339 (effective March 16, 2009) (creating Miss Code Ann. § 99-49-1 (Supp.2012) and amending Miss.Code Ann. §§ 99-39-5 to 99-39-11, 99-39-23 (Supp.2012)). No published decision from this Court applies or interprets the provisions of Mississippi Code Section 99-49-1, but this statute mandates detailed procedures for the preservation, destruction, and accessibility of biological evidence connected with a crime.

¶ 12. The legislature made its purpose clear in subsection (1), declaring that “simple but crucial enhancements to protocols for properly preserving biological evidence can solve old crimes, enhance public safety, and settle claims of innocence.” Miss. Code Ann. § 99 — 49—1(1)(f). Thus, biological evidence in possession of the State must be preserved if it was secured “in relation to an investigation or prosecution of a crime.” Miss.Code Ann. § 99-49-l(3)(a)(i)-(ii). Such evidence must be retained “for the period of time that the crime remains unsolved” or “for the period of time that the person convicted of that crime remains in custody.” Id. The evidence may be destroyed prior to the expiration of these time periods if no other law requires preservation of the evidence, if proper notification is given to all listed individuals and entities, and if there is no written request for retention or testing made within sixty days of receiving notice. Miss.Code Ann. § 99-49-1(3)(f)-(g).

¶ 13. In addition to preserving evidence, the statute requires that “[u]pon written request by the defendant, the state shall prepare an inventory of biological evidence that has been preserved in connection with the defendant’s criminal case.” Miss.Code Ann. § 99-49-l(3)(e) (Supp.2012). As a related duty, if the State is asked to produce evidence which cannot be located, “the chief evidence custodian assigned to the entity charged with the preservation of said evidence shall provide an affidavit in which the custodian stipulates, under penalty of perjury, an accurate description of the efforts taken to locate that evidence and that the evidence could not be located.” Miss.Code Ann. § 99-49-1(3)©.

¶ 14. Notably, this statute imposes various obligations on a wide range of State agencies, officials, and others. The term State is defined as:

any governmental or public entity within Mississippi, including all private entities that perform such functions, and its officials or employees, including, but not limited to, law enforcement agencies, prosecutors’ offices, courts, public hospitals, crime laboratories, and any other entity or individual charged with the collection, storage or retrieval of biological evidence.

Miss.Code Ann. § 99 — 49—1(2)(e) (Supp. 2012). It behooves all persons and entities falling under this listing to familiarize themselves with the DNA Preservation Act, paying close attention to their respective obligations. For example, safeguards and preventive measures designed to ensure compliance with this statute should be implemented, if they are not currently in place. Vigilance is essential, given that the consequences for noncompliance are in the hands of the courts, to which the legislature has given broad authority. As noted in the first paragraph of this opinion, subsection (5) provides, “[i]f the court finds that biological evidence was destroyed in violation of the provisions of this section, it may impose appropriate sanctions and order appropriate remedies,” and what may be “appropriate” in each case is left to the court’s discretion. Miss.Code Ann. § 99-49-1(5) (Supp.2012).

Conclusion

¶ 15. Hill’s appeal is based on an unsupported assertion that a specific item containing potentially testable biological evidence was destroyed by the circuit court without proper notice. The exhibits and testimony from the evidentiary hearing, which included the record from his 1974 capital murder trial, support the trial court’s finding that the circuit clerk did not have possession of this evidence when the circuit court ordered the disposal of the exhibits. Moreover, there is no evidence that the circuit court ever had possession of the item in question. Accordingly, we find no available relief and affirm the judgment of the trial court.

¶ 16. AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, CHANDLER, PIERCE, KING AND COLEMAN, JJ„ CONCUR.

      . The circuit clerk’s office had retained the murder weapon (a knife), but Hill declined the trial court’s offer to have it examined for testable biological evidence.

      . In cases involving murder, manslaughter or felony sexual assault, all evidence must be preserved if it was within the State’s possession on July 1, 2009. Miss.Code Ann. § 99-49-1(4) (Supp.2012).

      . Prior notification must be given to:
      1. All persons who remain in custody as a result of the criminal conviction, delinquency adjudication, or commitment related to evidence in question;
      2. The attorney of record for each person in custody;
      3. The Mississippi Office of Indigent Appeals;
      4. The district attorney in the county of conviction; and
      5.The Mississippi Attorney General.
      Miss.Code Ann. § 99-49-1 (3)(f)(ii) (Supp. 2012). In Hill’s case, the order authorizing the destruction of all exhibits tracked the language of Mississippi Code Section 13-1-155 (Rev.2002), which governs the destruction of exhibits in civil cases. Section 13-1-155 requires that prior notice be given to “the attorneys for all parties to the action and the owner or person having custody of the property prior to the court action.” At the eviden-tiary hearing, the circuit clerk testified that no one, including Hill, was notified that the exhibits would be destroyed.


author: COLEMAN, Justice,

text:
    Re: The Interest of M.E.V., a Minor. A.E.M., Mother and Next Friend v. Bolivar County, Mississippi, Department of Human Services.
    No. 2011-CA-01091-SCT.
    Supreme Court of Mississippi.
    Aug. 29, 2013.

      Patricia Peterson Smith, attorney for appellant.
    Aelicia L. Thomas, Rosedale, attorney for appellee.
    Before RANDOLPH, P.J., KING and COLEMAN, JJ.
   COLEMAN, Justice,

for the Court:

¶ 1. M.E.V. is a minor child whose biological mother lives in Bolivar County and whose biological father lives in Texas. Pursuant to a petition alleging abuse and neglect filed by the Department of Human Services (DHS), the youth court removed M.E.V. from her mother’s custody. After several periodic reviews, the youth court judge issued a review order on July 20, 2011, giving legal and physical custody of the child to her biological father in Texas on a trial basis. The mother now attempts to appeal that review order. Because the review order does not constitute a final judgment, we dismiss the appeal.

FACTS

¶ 2. C.V. and A.E.M. had a child, M.E.V., during their marriage. They divorced in September 1998, and the dissolution of their marriage led to allegations of abuse and neglect and resulted in hearings and review orders that are not relevant to our decision today. The allegations, hearings, and orders culminated in a review hearing held July 20, 2011. As a result of C.V.’s willingness to create an adequate living situation for M.E.V. in Texas, the youth court awarded legal and physical custody to him on a trial basis. The court entered a review order on July 20, 2011, in which it explicitly stated that the court made the award of custody on a trial basis, that the youth court retained jurisdiction, and that DHS would review the placement in six months. A.E.M. appeals the July 20 review order.

ANALYSIS

¶ 3. Direct appeals of a lower court’s decision “lie only from a final judgment.” LaFontaine v. Holliday, 110 So.3d 785, 787 (¶ 8) (Miss.2013) (quoting Cotton v. Veterans Cab Co., Inc., 344 So.2d 730, 731 (Miss.1977)). Just like Mississippi Code Section 11-51-3, which governs appeals from circuit and chancery courts, Mississippi Code Section 43-21-651, which governs appeals from youth courts, contemplates appeals of final judgments only. See Miss.Code Ann. § 43-21-651 (Rev. 2009). “[A]n appeal is not a matter of right but is subject to the statutory provisions, and the basic requirement is that appeals are proper only if from a final judgment.” LaFontaine, 110 So.3d at 787 (¶ 8) (quoting Sanford v. Bd. of Supervisors, Covington County, 421 So.2d 488, 491 (Miss.1982)). Generally, a judgment is final “if it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” LaFontaine, 110 So.3d at 787 (¶ 8) (quoting Banks v. City Fin. Co., 825 So.2d 642, 645 (¶ 10) (Miss.2002) (overruled on other grounds)). Whether the parties raise the issue or not, we must determine whether the judgment before us is an appealable one. M.W.F. v. D.D.F., 926 So.2d 897, 899 (¶ 4) (Miss.2006).

¶ 4. The order on appeal granted legal and physical custody to C.V. on a trial basis only and pending the results of a home study. The youth court explicitly retained jurisdiction over the case and ordered DHS to review the placement in six months. In other words, the order fell well short of ending the litigation on the merits and leaving nothing for the youth court to do but execute a judgment. Accordingly, we dismiss the instant appeal, with costs taxed to the appellant.

¶ 5. On September 17, 2012, A.E.M. filed a motion to strike additions to the record. This Court found that the motion should be passed for consideration with the merits of the appeal. No motions to supplement the record have been filed, and the record does not contain any extraneous documents that were not included in the original record prepared by the trial court clerk. After due consideration, we find that the motion should be denied because there have been no additions to the record and because the appeal is dismissed.

¶ 6. APPEAL DISMISSED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE, AND KING, JJ., CONCUR.


author: RUSSELL, J.,

text:
    Charlie HONEYCUTT, Appellant v. Tommy COLEMAN, Atlanta Casualty Companies, Atlanta Casualty Company and American Premier Insurance Company, Appellees.
    No. 2010-CA-01470-COA.
    Court of Appeals of Mississippi.
    June 19, 2012.
    Rehearing Denied Nov. 27, 2012.

      Joseph E. Roberts Jr., Jackson, attorney for appellant.
    Thomas Y. Page, Jackson, John W. Cro-well, Columbus, attorneys for appellees.

      Before IRVING, P.J., ISHEE and RUSSELL, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. Charlie Honeycutt appeals the circuit court’s order granting summary judgment and a final judgment of dismissal to all defendants. Honeycutt argues that the actions of Mississippi State Trooper Tommy Coleman (Trooper Coleman) were not subject to the requirements of the Mississippi Tort Claims Act (MTCA); that the cancellation notice provided by Atlanta Casualty Company (Atlanta Casualty) was ineffective; and that the insurance company through its agent had a duty to obtain a knowing and intelligent waiver of the uninsured-motorist coverage. The circuit court found there was no genuine issue of material fact, reasoning that Trooper Coleman was acting within the course and scope of his employment at the time of the accident and was, therefore, subject to the MTCA; that the Atlanta Casualty cancellation notice was effective; and that the insurance company, through its agent, had no legal duty to explain to the Honeycutts their right to purchase uninsured-motorist coverage. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 15, 1994, a motor-vehicle accident occurred involving Trooper Coleman, Honeycutt, and Matthew Blaxton. At the time of the accident, Blaxton was driving the vehicle, and Honeycutt was the passenger. The accident took place at approximately 12:38 a.m. at the intersection of Highway 45 and Waverly Road in Columbus, Lowndes County, Mississippi, when Blaxton’s vehicle turned left at a flashing yellow light in front of Trooper Coleman. Trooper Coleman struck Blax-ton’s vehicle on the right rear side. Trooper Coleman was driving his patrol car, returning home from a road block detail in Lowndes County when the accident occurred. According to Trooper Coleman, he was still on patrol duty when the accident occurred.

¶ 3. On September 12, 1993, Barbara Honeycutt (Barbara) had applied for motor-vehicle insurance and was issued policy number 03010110 from Atlanta Casualty. The policy was effective from September 15, 1993, to March 15, 1994. Barbara signed a rejection of uninsured-motorist coverage for policy number 03010110. On February 10,1994, Atlanta Casualty issued a renewal certificate with an effective date of March 15, 1994, and an expiration date of September 15, 1994. On March 21, 1994, Atlanta Casualty sent a cancellation notice of the policy for non-payment of the premium effective March 31, 1994. On March 11, 1994, Sam Honeycutt (Sam) made application to American Premier Insurance Company (American Premier) for motor-vehicle insurance. The application contained a signed rejection of uninsured-motorist coverage by Sam. According to Sam and Barbara, the uninsured-motorist coverage rejections they signed were not explained by the insurance agent.

¶ 4. On April 16, 2001, Honeycutt filed a complaint against the defendants. On March 16, 2005, the court entered an order granting summary judgment in favor of Trooper Coleman and dismissed him as a party defendant. The court found Trooper Coleman was acting within the course and scope of his employment at the time of the accident; therefore, the suit was barred by the one-year statute of limitations set forth in Mississippi Code Annotated Section 11-46-11(3) (Rev. 2002). On August 5, 2010, the court entered an order granting summary judgment in favor of defendants Atlanta Casualty Companies, Atlanta Casualty Company, and American Premier Insurance Company, followed by entry of a final judgment of dismissal with prejudice on August 27, 2010.

¶ 5. On September 8, 2010, Honeycutt appealed the judgment of dismissal entered on March 16, 2005, as to all claims against Trooper Coleman, and the order sustaining the motion for summary judgment and final judgment of dismissal with prejudice as to Atlanta Casualty Companies, Atlanta Casualty Company, and American Premier Insurance Company.

DISCUSSION

¶ 6. This Court employs a de novo standard in reviewing a trial court’s ruling on a motion for summary judgment. Green v. Allendale Planting Co., 954 So.2d 1032, 1037 (¶ 8) (Miss.2007). Such review entails an examination of all the evidentiary matters before us, including admissions in pleadings, answers to interrogatories, depositions, and affidavits. Id. The evidence must be viewed in the light most favorable to the non-movant. Id. The movant bears the burden of showing that no genuine issue of material fact exists. Id. The existence of a genuine issue of material fact will preclude summary judgment. Massey v. Tingle, 867 So.2d 235, 238 (¶ 6) (Miss.2004). The non-moving party may not rest upon mere allegations or denials in the pleadings but must set forth specific facts showing that there are genuine issues for trial. Id. The “[non-moving] party’s claim must be supported by more than a mere scintilla of colorable evidence; it must be evidence upon which a fair-minded jury could return a favorable verdict.” Wilbourn v. Stennett, 687 So.2d 1205, 1214 (Miss.1996).

I. Effectiveness of the Ten-Day Cancellation Notice Requirement Found in Mississippi Code Annotated section 83-11-5 (Rev. 2011)

¶ 7. Honeycutt contends that the circuit court erred when it granted summary judgment in favor of Atlanta Casualty because the proper procedure was not followed by Atlanta Casualty to effectuate the cancellation of policy number 03010110. In particular, Honeycutt argues that a legal issue remains as to whether Atlanta Casualty Company effectively cancelled the insurance policy by mailing notice to the Honeycutt’s residence. Section 83-11-5 of the Mississippi Code Annotated states:

No notice of cancellation of a policy to which [Mississippi Code Annotated] [s]ection 83-11-3 applies shall be effective unless mailed or delivered by the insurer to the named insured and to any named creditor loss payee at least thirty (30) days prior to the effective date of cancellation; provided, however, that where cancellation is for nonpayment of premium at least ten (10) days’ notice of cancellation accompanied by the reason therefor shall be given. Unless the reason accompanies or is included in the notice of cancellation, the notice of cancellation shall state or be accompanied by a statement that upon written request of the named insured, mailed or delivered to the insurer not less than fifteen (15) days prior to the effective date of cancellation, the insurer will specify the reason for such cancellation.

(Emphasis added).

¶ 8. On March 21,1994, Atlanta Casualty mailed Honeycutt notice of cancellation of his insurance policy number 03010110, effective March 31,1994, due to nonpayment of the premium. Honeycutt argues that this method of cancellation was ineffective because it did not give the requisite ten-day notice. This argument fails for two reasons. First, the certified mailing satisfied the notice requirement. Section 83-11-9 of the Mississippi Code Annotated (Rev. 2011) provides that proof of mailing of notice of cancellation, or of intention not to renew, or of reasons for cancellation to the named insured by a certificate of mailing, at the address shown in the policy, shall be sufficient proof of notice. Atlanta Casualty mailed the notice of cancellation to Barbara Honeycutt at 238 Fondren Drive, Columbus, MS 39702. No one disputes that this was the Honeycutt residence. Thus, the Atlanta Casualty met the requirements set out in the statute.

¶ 9. Honeycutt further argues that “the timeliness of the notice is to be determined by the date the insured is in receipt of the notice rather than the date of its mailing.” Black v. Fid. Guar. Ins. Underwriters Inc., 582 F.2d 984 (5th Cir.1978). However, in Branch, the court concluded that “when a certificate of mailing relative to the notice of cancellation is produced[,] and it contains the address shown on the policy, it is sufficient notice of cancellation.” Scotty Branch v. State Farm Fire & Cas. Co., 759 So.2d 430, 433 (¶ 8) (Miss.2000). In this case, the record contains a copy of the certificate of mailing which contained the admittedly correct address, which was listed in the policy of insurance; therefore, this established sufficient proof of notice of cancellation. Furthermore, Honeycutt’s argument still fails because, even if we considered the date of receipt rather than mailing as the effective date, the effective cancellation date would still be well before May 15,1994 — the day of the accident. Moreover, Honeycutt had obtained insurance coverage from American Premier before Atlanta Casualty issued the notice of cancellation. Thus, this issue is without merit.

II. Insurance Agent’s Duty to Explain Uninsured-Motorist Coverage

¶ 10. The Atlanta Casualty policy applications signed by Sam and Barbara provided the following uninsured-motorist coverage selection or rejection provision:

State law requires that no automobile liability insurance policy be issued or delivered unless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages for bodily injury, death or property damage from the owner or operator of an uninsured motor vehicle and permits any insured named in the policy to select or reject uninsured motorist coverage for this policy and any renewal hereof. I acknowledge and agree that I have been given the option to purchase uninsured motorist coverage within limits no less than those set forth in the Mississippi Motor Vehicle Safety Responsibility law and up to an amount not to exceed that provided in the policy of bodily injury liability insurance or to reject the coverage entirely. After having uninsured motorist coverage offered and explained, I have voluntarily and intentionally exercised this option, as indicated below and as shown on the other side of this application.

(Emphasis added).

¶ 11. On September 12, 1993, Barbara applied for motor-vehicle insurance with Atlanta Casualty. At the time of application, Barbara signed a rejection of the uninsured-motorist coverage. She obtained policy number 03010110 effective for the six-month period from September 15, 1993, through March 15, 1994. The policy provided liability coverage but did not provide uninsured-motorist coverage or medical-payment coverage.

¶ 12. On February 10, 1994, Atlanta Casualty issued a renewal certificate for policy number 03010110, effective March 15, 1994, through September 15, 1994. The Honeycutts did not remit a premium payment to continue coverage, and on March 21, 1994, Atlanta Casualty mailed a notice of cancellation of the renewal certifí-cate to Barbara for non-payment of the premium.

¶ 13. On March 11, 1994, Sam applied for motor-vehicle insurance with American Premier and obtained policy number 05088064 for the time period of March 15, 1994, through September 15, 1994. Sam also signed a rejection of the uninsured-motorist coverage.

¶ 14. Sam argues that while he signed the rejection of the uninsured-motorist coverage, he did not do so knowingly. When questioned about his knowledge, Sam testified:

All I would do is when I call them and tell them to put insurance on a vehicle, I would go by there and flip pages, and I’d sign lines. I never read anything in any kind of fine print whatever was on that policy because I trusted him as my agent to take care of it. He [ (insurance agent Larry Phebus) ] never told me I ever had — didn’t have uninsured motorist coverage on any of my policies. All I ever done is told him I wanted full coverage.

Barbara similarly testified that “they just tell you you don’t have to bother reading it, just initial it or sign it.”

¶ 15. In spite of their testimony that they did not know what they were signing, both Sam and Barbara knowingly rejected uninsured-motorist coverage in writing. Moreover, they both signed and acknowledged that the uninsured-motorist coverage was offered and explained, and that they voluntarily and intentionally signed the waiver. While Barbara has a high school education and testified that Sam handles all of the insurance, Sam testified that he worked as a warehouse manager for twenty years and that upon retirement in 1999, he opened his own janitorial business. When questioned about the insurance documents, Sam testified:

Q: You can read and write?
A: Oh, yes, sir.
Q: And what you read, you can understand?
A: Yes, sir.
Q: And when you — would he [Larry Phebus] give you copies of your policies and documents?
A: Yes, sir. They made them.
Q: And did you read those?
A: No, sir.
Q: Why not?
A: I just didn’t, because I trusted that he put on that vehicle whatever I had whatever was supposed to be on it. I just didn’t go through it and read it.
Q: So if you would have — if he would have sent you document after document through the years, you would not have read them?
A: No, sir.
Q: When you do business with your janitorial company, do you enter into written contracts with people to provide—
A: Yes, sir. I read them, I type them out, and they sign them.
Q: And do you go through them line by line and explain to them what the contract says, or do you give it to them to read and decide?
A: I give it to them.
Q: And in the insurance business, do you know that the written policy is the contract between you and the insurance company and whatever coverages you have are spelled out in the contract?
A: Yes, sir.
Q: And you’re familiar with contracts, and you know if you have a contract and you’re a party to it, then you’re bound by it?
A: Yes, sir.

¶ 16. In Mississippi, insurance polices are contracts, and as such, they are to be enforced according to their provisions. Corban v. United States Auto. Ass’n, 20 So.3d 601, 609 (¶ 19) (Miss.2009). It is well settled under Mississippi law that a contracting party is under a legal obligation to read a contract before signing it. Booker v. Am. Gen. Life & Accident Ins. Co., 257 F.Supp.2d 850, 862 (¶ 9) (Miss.2003) (quoting Godfrey, Bassett & Kuykendall Architects, Ltd. v. Huntington Lumber & Supply Co., 584 So.2d 1254, 1257 (Miss.1991)). Moreover, knowledge of the contents of a contract is imputed to a contracting party even if that party did not read the contract before signing it. Id. (quoting Cherry v. Anthony, Gibbs, Sage, 501 So.2d 416, 419 (Miss.1987)).

¶ 17. Here, the insurance agreement clearly provides an option for uninsured-motorist coverage. While both Sam and Barbara testified that they did not read the policy, “knowledge of its contents would be imputed to them as a matter of law.” Cherry, 501 So.2d at 419 (quoting Atlas Roofing Mfg. Co. v. Robinson & Julienne, Inc. 279 So.2d 625, 629 (Miss.1973)). Therefore, they are bound by the terms of the contract.

¶ 18. Moreover, Larry Phebus did not have a duty to explain the terms to them. Our supreme court has stated:

Although we question the seemingly absolute requirement of explanation by the insurance agent, we ... hold that the statutorily required waiver of [uninsured-motorist] coverage may be obtained only from a fully-informed insured. That is to say, the waiver must be knowing and intelligent. The simple principle announced here is that no statutorily-required waiver of [uninsured-motorist] benefits is effective unless the waiver was obtained from an insured who was reasonably knowledgeable and informed of the costs and benefits of such [uninsured-motorist] coverage prior to signing the waiver. To this extent, we reaffirm the holding in Berry. However, we reject and overrule the implication in Berry that an insurance agent has the absolute, court-created duty to explain an insured’s right to purchase additional [uninsured-motorist] coverage, over and above the amount of coverage required by statute.

Owens v. Miss. Farm Bureau Cas. Ins. Co., 910 So.2d 1065, 1074 (¶¶ 34-35) (Miss.2005). While Owens does not involve the exact set of circumstances as the present case, this Court will not now impose a duty upon insurance agents to explain any and all contractual provisions. Both Sam and Barbara voluntarily rejected uninsured-motorist coverage. Sam and Barbara are educated and can read and write. There is nothing unclear or ambiguous about the language found in the uninsured-motorist provision of the agreement. Sam even testified that he drafts contracts for his janitorial business. In fact, he testified that he provides the contract to potential clients without going over the contract with them. Instead, he lets them read it.

¶ 19. It is undisputed that with or without notice, the Honeycutts purchased coverage that terminated on March, 31, 1994. Even if this Court found the cancellation ineffective and that the policy was extended beyond March 31, 1994, it would still provide for the same coverage already on the policy. Barbara signed a rejection of the uninsured-motorist coverage. Any extension of the same policy would exclude uninsured-motorist coverage, leaving Ho-neycutt without recourse. Sam and Barbara cannot now argue that they thought they had, should have had, or expected to have uninsured-motorist coverage, when they repeatedly rejected it and never paid for it. This issue is without merit.

III. Trooper Coleman’s Status and Applicability of the MTCA

¶20. The MTCA provides the exclusive civil remedy against a governmental entity and its employees for acts and omissions giving rise to a suit. City of Jackson v. Annie Mae Sutton, 797 So.2d 977, 980 (¶¶ 9-10) (Miss.2001). Any claim filed against a governmental entity and its employees must be brought under this statutory scheme. Id. Statutes within the Act provide that the MTCA is the exclusive route for filing suit against a governmental entity and its employees. Id. (citations omitted). A governmental entity and its employees acting within the course and scope of their employment shall be free of liability for a claim based upon any of the acts or omissions enumerated therein. Miss.Code Ann. § 11-46-9 (Supp.2011).

¶21. Honeycutt argues that Trooper Coleman is liable for damages even if the Court finds that the alleged criminal offense constitutes a traffic violation, because he was not acting within the course and scope of his employment at the time of the accident. Trooper Coleman provided uncontroverted testimony that on the date of the accident he was working a 4 p.m. until 1 a.m. roadblock detail in East Columbus and acting within the scope of his employment. They ended the roadblock early because Trooper Coleman did not live in Columbus and needed time to drive home.

¶22. Trooper Coleman provided the following testimony concerning his work status on the day of the accident:

But now when I left this [roadblock] detail I’m still on duty. You’re on duty all the time until you go home and go 10-7 out of that car, you are on duty. You may have a time that says — Like that particular day, I was scheduled from four o’clock to one o’clock in the morning. Even though this accident happened within that time period, I’m still on duty until I get home and say I’m 10-7 out of that car. If anything happened between, say Columbus or whatever, I’m still on duty. I’m required to work it.

James Humphries, Trooper Coleman’s supervisor, who has been with the Highway Patrol since 1981, provided the following testimony regarding Trooper Coleman:

He’s a state trooper and just because he’s fifty (50) miles from home, forty (40) miles, doesn’t mean that he cuts the radar off and quits looking for drunks. He’s going to write tickets and work his way home. That’s just part of the job. It’s not like we shut down and head to the house. It doesn’t work that way. It doesn’t work that way because one o’clock might be the end of the shift but that is not the end of your work.

Our supreme court found that an officer returning from traffic court when the accident occurred was acting within the course and scope of his employment as a patrol officer after the director for the City of Biloxi Department of Police similarly testified:

Pursuant to City of Biloxi policy, patrol officers are on duty, subject to call, and subject to the control, direction, and supervision of the City of Biloxi Department of Police while operating patrol vehicles provided by the City of Biloxi Department of Police, regardless of the officers’ immediate destination.

Leslie v. City of Biloxi, 758 So.2d 430, 433 (¶ 9) (Miss.2000).

¶23. It is undisputed that Trooper Coleman was headed home and driving his patrol car at the time of the accident. It is also clear from the testimony that he was still on duty at the time of the accident. The evidence can lead to no other conclusion than Trooper Coleman was acting within the course and scope of his employment with the Mississippi Highway Patrol at the time the accident occurred. Accordingly, Honeycutt’s claims against Trooper Coleman are barred by the one-year statute of limitations set forth in Mississippi Code Annotated Section 11-46-11(3). This issue is without merit.

¶ 24. For the foregoing reasons, we affirm the judgment of the circuit court.

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

LEE, C.J, IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . Charlie Honeycutt was a fifteen-year-old minor at the time of the accident.

      . It appears that the court treated Trooper Coleman's motion to dismiss as one for summary judgment. This is proper under Rule nib), which provides: "[I]f, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56[.]”

      . Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56 (Miss.1996).


author: IRVING, P.J.,

text:
    Marianne M. MABIE, As Personal Representative of the Estate of Lefferts L. Mabie, Jr., Appellant v. Roy SHANNON, Appellee.
    No. 2011-CA-01134-COA.
    Court of Appeals of Mississippi.
    Dec. 4, 2012.
    Rehearing Denied May 14, 2013.
    Certiorari Denied Aug. 15, 2013.

      Stephen J. Maggio, attorney for appellant.
    Michael E. Cox, Biloxi, attorney for ap-pellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. In May 2006, Marianne M. Mabie (Mabie), as representative of the Estate of Lefferts L. Mabie Jr., filed a notice of enrollment of a renewed foreign judgment against Roy Shannon in the County Court of Harrison County, Mississippi. Shannon filed a motion for relief from the judgment pursuant to Rule 60(b)(5) of Mississippi Rules of Civil Procedure, alleging that the enrollment was barred by the statute of limitations for enrolling foreign judgments. The county court granted Shannon’s motion, and Mabie appealed to the Harrison County Circuit Court. The circuit court affirmed the county court’s judgment, and Mabie timely filed a notice of appeal.

¶ 2. Because renewing the judgment restarted the statute of limitations, Mabie was not time-barred from enrolling the renewed judgment in Mississippi. Therefore, we reverse and render.

FACTS

¶ 3. The following facts are taken from the pleadings of this case. On October 21, 1994, the Circuit Court of Escambia County, Florida, entered a judgment against Shannon in favor of Lefferts L. Mabie Jr. (Lefferts) for $60,000. Lefferts enrolled this Florida judgment in the judgment rolls of Harrison County, Mississippi, on or about March 24, 2005. Upon learning that the judgment had been enrolled, Shannon objected on the basis that the original Florida judgment was barred by the Mississippi statute of limitations and demanded that the judgment be struck from the Harrison County judgment rolls. Mabie complied and caused an order to be entered, striking the judgment from the Harrison County judgment rolls.

¶ 4. Following the county court’s order striking the judgment, Mabie filed an action in Florida to renew the original Florida judgment against Shannon. On October 19, 2005, the Circuit Court of Escambia County renewed the original judgment, which had over nine years left before the statute of limitations on it would expire in the State of Florida. On May 11, 2006, Mabie filed a notice of enrollment of the renewed foreign judgment in the County Court of Harrison County. On June 2, 2006, Shannon filed a motion for relief from the judgment on the grounds that the enrollment was time-barred and the original judgment had been vacated, or it was no longer equitable that the judgment should have prospective application to Shannon according to Rule 60(b)(5). The county court granted Shannon’s motion, and on April 4, 2007, Mabie appealed to the Circuit Court of Harrison County, which affirmed the county court’s decision.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. Mississippi Code Annotated section 15-1-45 (Rev.2003), which governs actions founded on foreign judgments, states that an action brought on a foreign judgment must be brought within seven years after the judgment was rendered. Section 15-1-45 also states that if the person against whom such judgment was rendered was a resident of Mississippi when the action was instituted, then the action on the judgment must commence within three years. Id. In other words, to enroll a judgment from another state, the person seeking to enroll must do so either within three or seven years after the judgment has been rendered, depending on whether the person whom the judgment is against is a resident of Mississippi when the action was instituted.

¶ 7. This Court has enforced the statute of limitations for the enrollment of foreign judgments, stating that a plaintiff who failed to enroll his judgment from another state within either the three or seven years, whichever is applicable, required by statute cannot have his judgment enforced. See Magallanes v. Magallanes, 802 So.2d 174, 176 (¶ 10) (Miss.Ct.App.2001). In his brief, Shannon cites cases decided by the Mississippi Supreme Court and this Court that hold that foreign judgments from other states are unenforceable when the enrollment statute of limitations has expired in Mississippi, even when the statute of limitations for enforcement of judgments in the initial rendering state is longer. See Parker v. Livingston, 817 So.2d 554, 561 (¶ 23) (Miss.2002); Nat’l Enters. v. Valsamakis, 879 So.2d 523, 524 (¶ 7) (Miss.Ct.App.2004). However, these cases do not address whether a foreign judgment that has been renewed in accordance with the laws of the rendering state is barred by Mississippi’s statute of limitations if the statute of limitations has run prior to the renewal of the judgment. In other words, these cases do not address the question of whether a renewed foreign judgment is a new judgment for purposes of Mississippi’s statute of limitations.

¶ 8. The question of whether a renewed or revived judgment may be enrolled and enforced in Mississippi after the statute of limitations for enrollment has expired as to the original judgment has not been directly addressed by Mississippi appellate courts. Smith v. RJH of Fla., Inc., 520 F.Supp.2d 838, 841 (S.D.Miss.2007). The Smith court stated that there are a number of jurisdictions that have held:

Where an [enrollment] action is brought in another state upon a judgment of a sister state which is a revival of an earlier judgment, and under the law of the state rendering the revival judgment it is a new judgment and not merely an extension of the statutory period in which to enforce the original judgment, a judgment of revival, as a new judgment, is entitled to full faith and credit and may not be refused enforcement on the ground that under the law of the forum the original judgment could not have been revived at the time it was revived by the judgment of the sister state.

Id. at 842 (citations omitted).

¶ 9. In Smith, a circuit court in Indiana entered the original judgment in favor of the defendants in 1990. Id. at 889. That same court renewed the original judgment in 2005. Id. In 2006, the defendants enrolled the renewed judgment in Copiah County, Mississippi, where the Smiths, the judgment debtors, resided at the time. Id. at 840. Because the Smiths were residents of Copiah County, the three-year limitations period for enrolling foreign judgments applied. The Smiths argued that the 2006 enrollment was barred by Mississippi’s statute of limitations because more than three years had passed since the original judgment was entered in 1990. Id. The court looked to case law from Indiana, the state that rendered the renewed judgment, to determine whether the renewed judgment was an extension of the original judgment or a new judgment. Id. at 843. In Indiana, a renewal of a judgment is not merely an extension of the original judgment, but rather a new and separate judgment. Id. (citing Lewis v. Rex Metal Craft, Inc., 831 N.E.2d 812, 823 (Ind.Ct.App.2005)). Because the 2005 renewed judgment constituted a new judgment, the enrollment in 2006 was within the three-year limitations period. Id.

¶ 10. Here, the renewed judgment was rendered in Florida. Florida case law distinguishes between an action on the judgment and post-judgment proceedings. “The main purpose of an action on a judgment [a separate cause of action from the original judgment] is to obtain a new [and independent] judgment which [would] facilitate the ultimate goal of securing satisfaction of the original cause of action.” Burshan v. Nat’l Union Fire Ins. Co. of Pittsburgh, 805 So.2d 835, 841 (Fla.Dist.Ct.App.2001) (quoting Adams v. Adams, 691 So.2d 10, 11 (Fla.Dist.Ct.App.1997)). Post-judgment proceedings are regarded as a continuation of the original action. Corzo Trucking Corp. v. West, 61 So.3d 1285, 1289 (Fla.Dist.Ct.App.2011). A renewal of a judgment that was never paid is identified as an action on the judgment. Adams, 691 So.2d at 11.

¶ 11. As the court did in Smith, we look to the state that rendered the renewed judgment, and follow its law on whether a renewed judgment is a new and separate action that is entitled to full faith and credit. Based on Florida’s law on renewed judgments, Mabie’s 2005 renewal of the original 1994 Florida judgment constitutes an action on the judgment, which restarts the statute of limitations. Because Shannon was a Mississippi resident when Mabie instituted the 2005 renewal action, the three-year limitations period prescribed by section 15-1-45 applied. Mabie’s attempt to enroll the Florida judgment in Mississippi in 2006 was well within the limitations period because the statute of limitations started over when the Florida circuit court renewed the judgment in 2005. Accordingly, the circuit court erred in granting Shannon’s motion on the ground that Mabie’s enrollment was time-barred.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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

      . Mabie was appointed the representative of Lefferts’s Estate after Leffert's death, the date of which is not specified in the record.