author: LAMAR, Justice, CHANDLER, JUSTICE,

text:
    Tom CHRISTMAS and Consandra J. Christmas v. EXXON MOBIL CORPORATION, A New Jersey Corporation.
    No. 2011-CT-01311-SCT.
    Supreme Court of Mississippi.
    May 15, 2014.

      Wayne Dowdy, Dunbar Watt, Magnolia, attorneys for appellants.
    Jeffery P. Reynolds, Gene D. Berry, attorneys for appellee.
   ON WRIT OF CERTIORARI

LAMAR, Justice,

for the Court:

¶ 1. Tom and Consandra Christmas own property neighboring an alligator-infested, waste-disposal site owned by Exxon. They sued Exxon, claiming the alligator infestation was a nuisance. The circuit court granted summary judgment in favor of Exxon, based on the statute of limitations and the prior-trespass doctrine. The Court of Appeals reversed and remanded. We find that Exxon is entitled to summary judgment, but for different reasons than those found by the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 2. A waste-disposal site has been located between the towns of Centerville and Woodville in rural Wilkinson County for decades. During the 1980s, 1990s, and early 2000s, the site was owned by Rogers Rental & Landfill Company. From 1984 until 2001, Exxon was the site’s only customer and was involved in the site’s operations. The extent of Exxon’s involvement is disputed. In the early 1980s, Cliff Rogers, the owner of Rogers Rental & Landfill Company,. allegedly brought alligators to the site from Louisiana. On July 6, 2001, Exxon purchased the site from Rogers. At Exxon’s request, the Mississippi Department of Wildlife, Fisheries, and Parks surveyed Exxon’s property on July 2, 2007, and reported the presence of eighty-four alligators. The Department noted that this was “a high density of alligators to exist in the wild.” Pursuant to a request from Exxon, the Department removed several alligators from Exxon’s property in July 2008.

¶3. On December 3, 2003, Tom and Consandra Christmas purchased a thirty-five-acre tract of land that neighbored Exxon’s property. Before they completed their purchase, their real estate agent, Alan Ryan, told them that his horse had been injured on the property and that he suspected an alligator did it. The Christmases also saw a few alligators on their property from 2003 to 2007. However, they claim they did not know that their property adjoined an alligator-infested, waste-disposal site until 2007 when Mr. Christmas went onto Exxon’s property to retrieve one of his dogs.

¶4. The Christmases sued Exxon on August 11, 2008, alleging that the alligator infestation constituted a nuisance. They did not seek abatement of the nuisance. Rather, they sought monetary damages. Exxon moved for summary judgment, claiming that the statute of limitations had expired, that the Christmases had no recoverable damages, and that it could not be held liable for the presence of wild alligators on its property. The Christmases countered by alleging that the statute of limitations was tolled by the discovery rule, that they could recover for a decrease in their property’s value, and that Exxon was responsible for the alligator infestation. The circuit court agreed with Exxon on the statute-of-limitations and damages issues and granted summary judgment in Exxon’s favor.

¶ 5. On appeal, the Court of Appeals reversed and remanded, finding that there was a factual dispute as to when the Christmases learned of the alligator infestation and that the Christmases’ knowledge affected the running of the statute of limitations and the sustainability of their property-damage claim. In its petition for certiorari, Exxon argued that: 1) the statute of limitations was not tolled by the discovery rule and had run before the Christmases filed suit; 2) the prior-trespass doctrine barred the Christmases from recovering for the alligator infestation’s effect on their property’s value; and 3) it cannot be liable for the presence of wild alligators on its property.

STANDARD OF REVIEW

¶ 6. This Court reviews a grant of summary judgment de novo. Summary judgment is appropriate if “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” A summary-judgment decision should be based on the-pleadings, depositions, interrogatory responses, admissions, and any affidavits, and all evidence must be viewed in the light most favorable to the nonmoving party.

LAW AND ANALYSIS

¶ 7. The Christmases assert one cause of action against Exxon: nuisance. They allege “[f]or an extended period of time, [Exxon’s] property has been infested with large numbers of alligators. The alligators located on [Exxon’s] property are seen frequently near or on the Plaintiffs’ property. Such infestation of alligators constitutes a nuisance.”

A private nuisance is a nontrespassory invasion of another’s interest in the use and enjoyment of his property. One landowner may not use his land so as to unreasonably annoy, inconvenience, or harm others.... One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either (a) intentional and unreasonable, or (b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.

We find the dispositive issue in this case is whether the presence of wild alligators can constitute a private nuisance. Although raised, this issue was not addressed by the circuit court or the Court of Appeals, both of which decided this case based on the statute of limitations and the prior-trespass doctrine.

¶ 8. At the outset, we find it important to clarify that this is a wild-alligator case. There is no evidence that Exxon brought the alligators to its property or that it is restraining the alligators in any way. The Christmases claim that alligators were brought to what is now Exxon’s property in the early 1980s. The Christmases’ accusations are based on the deposition testimony and affidavit of Frederick Coleman, a former employee of Rogers Rental & Landfill Company. The pertinent part of Coleman’s affidavit states:

During my employment at the waste site, I heard and took part in numerous conversations with Exxon employees ... regarding the alligators that populated the Exxon waste site. It was stated repeatedly by Exxon employees ... that the alligators had been brought up from Louisiana and introduced to the Exxon waste site.

Despite Coleman’s references to “the Exxon waste site,” it is undisputed that the property was owned by the Rogers family, not Exxon, for the duration of Coleman’s employment. According to Coleman, the original alligators allegedly were brought to the property before Coleman began his employment there in 1984. Additionally, Coleman did not identify Exxon as the party responsible for bringing the alligators to the site. In fact, Mr. Christmas claimed Cliff Rogers, the owner of Rogers Rental & Landfill Company in the 1980s, was responsible for bringing the alligators to the property. Regardless of Coleman’s testimony, there is no evidence that the alligators currently on Exxon’s property are descended from the alligators allegedly brought to the property by Cliff Rogers. Moreover, the Christmases fail to explain how Exxon can be held liable for Rogers’s behavior, which occurred decades before Exxon purchased the property.

¶ 9. The Christmases’ wild-alligator-nuisance claim is a case of first impression in Mississippi. However, other jurisdictions have held that private persons cannot be held liable for the acts of wild animals on their property that are not reduced to possession. See Sickman v. United States, 184 F.2d 616, 618 (7th Cir.1950) (stating “a private person could not be held liable for the trespasses of animals which are ferae naturae, and which have not been reduced to possession, but which exist in a state of nature”); Roberts v. Brewer, 290 Ala. 329, 276 So.2d 574, 582 (1973). We agree.

¶ 10. Alligators are a protected species and are managed exclusively by the Mississippi Department of Wildlife, Fisheries, and Parks. Our Legislature has declared it illegal “for any person to disturb an alligator nest; to buy, sell, take or possess alligator eggs; to buy, sell, hunt, kill, catch, chase, or possess alligators or parts thereof except under permit from the Department.” Additionally, the Department narrowly defines what constitutes a “nuisance alligator” and strictly regulates the capture and removal of the same. Consequently, allowing wild alligators to constitute a private nuisance would subject landowners to liability for something over which they have no control. Exxon responded in the only legally permissible way it could to the Christmases’ alligator complaints: it called the Mississippi Department of Wildlife, Fisheries, and Parks and asked for the alligator population on its property to be reduced. Therefore, we hold that the presence of wild alligators “not reduced to possession, but which exist in a state of nature” cannot constitute a private nuisance for which a land owner can be held liable. Exxon is entitled to summary judgment.

CONCLUSION

¶ 11. Tom and Consandra Christmas own property neighboring an alligator-infested, waste-disposal site owned by Exxon. They sued Exxon for nuisance, claiming the alligator infestation decreased the value of their property. The circuit court granted summary judgment in favor of Exxon, finding that the statute of limitations had expired and that the Christmases had no recoverable damages. The Court of Appeals reversed and remanded based on a factual dispute as to when the Christmases had learned of the alligator infestation. We find Exxon is entitled to summary judgment because it cannot be held liable for the presence of wild alligators on its property. For these reasons, we reverse the Court of Appeals’ judgment and reinstate and affirm the circuit court’s grant of summary judgment in favor of Exxon.

¶ 12. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE CIRCUIT COURT OF WILKINSON COUNTY IS REINSTATED AND AFFIRMED.

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

CHANDLER, JUSTICE,

dissenting:

¶ 13. I respectfully dissent. In reviewing the grant of a motion for summary judgment, this Court is required to consider the evidence in the light most favorable to the nonmovants. So considered, the evidence created a genuine issue as to whether the alligators were “wild,” as held by the majority, or whether they had been reduced to possession such that Exxon could be liable for maintaining a nuisance. The Court of Appeals correctly reversed the trial court’s grant of summary judgment. I would affirm the judgment of the Court of Appeals and remand this case for a trial.

¶ 14. This Court applies de novo review to the grant or denial of summary judgment. Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 546 (Miss.2009). We must “review the record before [us] and take all the evidence in the light most favorable to the nonmoving party.” Id. If there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law, we will affirm. Id. But “[w]hen doubt exists whether there is a fact issue, the non-moving party gets its benefit.” Ladnier v. Hester, 98 So.3d 1025, 1029 (Miss.2012) (quoting Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983)). “Issues of fact exist where there is more than one reasonable interpretation that may be given undisputed testimony, and where materially differing but nevertheless reasonable inferences may be drawn from the uncontradicted facts.” Ladnier, 98 So.3d at 1029.

¶ 15. “A private nuisance is a nontres-passory invasion of another’s interest in the use and enjoyment of his property. One landowner may not use his land so as to unreasonably annoy, inconvenience, or harm others.” Leaf River Forest Prods., Inc. v. Ferguson, 662 So.2d 648, 662 (Miss.1995). One is liable for a private nuisance when there is “an invasion of another’s interest in the private use and enjoyment of land.” Id. The invasion must be either “intentional and unreasonable,” or “unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.” Id. (quoting Comet Delta, Inc. v. Pate Stevedore Co. of Pascagoula, Inc., 521 So.2d 857 (Miss.1988)). A nuisance may be permanent or temporary in nature, depending upon whether it is capable of abatement. City of Oxford v. Spears, 228 Miss. 433, 439, 87 So.2d 914, 916 (1956). If a nuisance is permanent, the appropriate measure of damages is the diminution in market value of the plaintiffs’ property. Id.

¶ 16. The Christmases claimed that the alligators on the neighboring Exxon land-farm constituted a permanent private nuisance, for which they were entitled to the value of the diminution in market value of their property. The majority finds that, because the alligators were “wild animals,” they could not constitute a private nuisance as a matter of law. The majority cites authority holding that “a private person [can]not be held liable for the trespasses of animals which are ferae naturae, and which have not been reduced to possession, but which exist in a state of nature.” Sickman v. United States, 184 F.2d 616, 618 (7th Cir.1950) (holding that the United States government could not be held hable for crop destruction by wild geese). But the rational extension of this rule is that an individual can be held hable for wild animals when their presence on the property is unnatural-in other words, when animals that naturally occur in the wild have been lured to the property or transported or maintained there by acts of man. See Commonwealth v. Sadecky, 41 Pa.Cmwlth. 86, 398 A.2d 1073, 1075 (1979) (holding that a man-made “haven for rodents is a nuisance in fact”). Such animals can be considered to have been “reduced to possession” by the intentional or negligent acts of the landowner that have caused their presence on the property.

¶ 17. A wealth of evidence supported the Christmases’ claim that the alligators’ appearance at the landfarm was far from a natural occurrence. The landfarm has nineteen ponds designed to contain runoff on the property. Frederick Coleman submitted an affidavit stating that he was employed at Rogers Rental & Landfill Company and worked at the landfarm during the 1980s. Coleman stated that Exxon had been the only waste disposer at the site, and that Exxon “had complete control and ultimate authority for the site.” Coleman stated that Tim Tucker, an Exxon employee who worked at the site, stated that alligators had been transported to the landfarm to assist operations because “if the alligators started dying or becoming ill after being exposed to the refinery waste sludge, then this would indicate a possible problem for humans exposed to the toxic waste sludge.” Coleman stated that, after their arrival at the landfarm, the alligator population grew, and he “personally observed many, many alligators at the site, ranging from six to ten feet long.”

¶ 18. In Coleman’s deposition, he stated that various animals, including “deer, racoons, peacocks, chickens, ducks, geese, alligators, and rabbits” had been placed at the landfarm for the purpose of monitoring hazardous conditions. In fact, Coleman stated that, during his employment he had watched an informational video explaining this purpose for the animals. He stated that some of the animals had been kept in a shed and that an employee, George Franklin, had been tasked with feeding the animals. He testified that, at that time, each runoff pond contained alligators six to ten feet in length.

¶ 19. Coleman’s testimony established a genuine issue as to whether the alligators were truly “wild,” or if they were descended from alligators transported to the land-farm by Rogers or Exxon and allowed to continue as an unnaturally large alligator population thriving in the hospitable environment maintained by Exxon. The majority finds that “there is no evidence that the alligators currently on Exxon’s property are descended from the alligators allegedly brought to the property.” This finding neglects the rule that this Court must afford the Christmases the benefit of all reasonable inferences favoring their claim. Ladnier, 98 So.3d at 1029. The Mississippi Department of Wildlife, Fisheries and Parks (MDWFP) determined that the alligator population at the landfarm was “a high density to exist in the wild,” that the habitat was “favorable to support alligators,” and that “the population basically continues to stay near or just above the carrying capacity of the habitat.” Considering this evidence, along with Coleman’s testimony that the alligators were transported to the landfarm, it is reasonable to infer that the present alligator population is descended from the original population of introduced alligators. The evidence supported the reasonable inference that the alligators were not wild, but had been reduced to possession, having been descended from those artificially introduced to the property by Rogers or Exxon.

¶ 20. Certainly, the control of alligators is within the jurisdiction of the MDWFP. But, as the Court of Appeals recognized, this fact goes to whether the alligator nuisance is permanent or temporary in nature. As the Court of Appeals astutely recognized:

If a nuisance is abatable, damages for ;permanent injury are not available. The question of whether the alligator infestation can be abated has not been explored. However, the record does indicate that at the Christmases’ prompting, Exxon requested that the Mississippi Department of Wildlife, Fisheries, and Parks (MDWFP) conduct an alligator census of its property. On July 2, 2007, MDWFP counted approximately eighty-four alligators, essentially one per acre of water, with the caveat that not all may have been counted. Only about sixteen of the observed alligators were four feet or greater in length. At Exxon’s request, MDWFP and the Mississippi Department of Environmental Quality (MDEQ) created a harvest plan, whereby alligators of four feet or greater in length would be removed. In July 2008 a MDWFP agent trapper culled seven adult alligators from the property. Exxon had also reinforced its fence along the Christmases’ property, apparently to keep alligators from passing under it.

Christmas v. Exxon Mobil Corp., 138 So.3d 168, 2013 WL 2302708 n. 2 (Miss.Ct.App. May 28, 2013) (citation omitted) (emphasis added).

¶ 21. Evidence also created genuine issues as to whether the alligators were a nuisance. The Christmases testified that they had two ponds on their property that attracted alligators. While they strongly suspected that these alligators had come from Exxon’s property, they never actually witnessed an alligator coming onto their property from Exxon’s property. Tom Christmas testified that he saw an alligator try to cross under the fence that separated his property from Exxon’s, but that it got stuck and turned around. However, Coleman testified that he had seen alligators leaving Exxon’s property. He testified that, on one or two occasions, he had seen an alligator leave Exxon’s property and go under the fence onto the Christmases’ property, heading for the ponds. Coleman’s testimony was supported by the MDWFP’s conclusion that “[i]t is reasonable to expect that some alligators may/ will disperse successfully from the property to adjacent suitable habitats.”

¶ 22. Little doubt existed that the alligators interfered with the Christmases’ use and enjoyment of their property. The Christmases testified that they bought the property in order to build a house. In anticipation of this plan, they cleared some of the property and moved into a trailer near one of the ponds. Consandra Christmas testified that they began seeing alligators during the clearing operations. When they moved into the trailer, they saw alligators in and around the ponds, and she became afraid to go outside. Consandra stated she could not peacefully use her property due to the fear of alligators. Tom Christmas testified that he had lost two calves and one dog and suspected that alligators were responsible. He testified that he was afraid to fish in the ponds due to the alligators. Six months after moving to the property, the Christmases left. Tom testified that:

My idea was to own a piece of property and have a pond. My wife can go out and fish. We can fish. My grandkids can come up and fish, and we can have a nice recreational area to do it.... I can’t do that anymore because I would never be comfortable with my grandchild sitting there fishing with alligators coming up anyway. I wouldn’t even be comfortable with my wife walking the property knowing there’s alligators crawling around out there.

Plainly, the Christmases presented evidence that the alligators interfered with their ability to use and enjoy their land.

¶ 23. In conclusion, I note that large numbers of naturally-occurring alligators reside in this state. If a landowner, in violation of Mississippi law, amassed wild alligators or lured them to his or her property, those alligators could not be said to exist in a state of nature, and the landowner certainly could be held liable for creating and maintaining a nuisance. Here, the record is replete with evidence supporting the Christmases’ claim that alligators had been introduced to Exxon’s property and constituted a nuisance. By concluding that no nuisance could exist because the alligators were “wild,” the majority erroneously construes the evidence in the light most favorable to Exxon, not the Christmases. Considering the evidence in the light most favorable to the Christmases, genuine issues of material fact existed for trial. I would affirm the decision of the Court of Appeals reversing the grant of summary judgment and remand for a trial.

RANDOLPH, P.J., KITCHENS AND KING, JJ., JOIN THIS OPINION.

      . The site stopped accepting waste in 1997.

      . The Christmases did not live on their property until approximately August 2007. They moved from their property in February 2008.

      . The Christmases also accused Exxon of chemically contaminating their property. They abandoned their contamination claim on appeal.

        .Christmas v. Exxon Mobil Corp., 138 So.3d 168, 173-74, 2013 WL 2302708, *4 (Miss.Ct.App. May 28, 2013). The Court of Appeals did not address Exxon's liability for the alligators. Id.

      . Anglado v. Leaf River Forest Products, Inc., 716 So.2d 543, 547 (Miss.1998).

      . Id.; see Miss. R. Civ. P. 56.

      . Prescott v. Leaf River Forest Products, Inc., 740 So.2d 301, 308-09 (Miss.1999).

      . Leaf River Forest Products, Inc. v. Ferguson, 662 So.2d 648, 662 (Miss.1995) (internal quotations and citations omitted).

      .The Court of Appeals stated that Exxon did not raise this issue before the trial court and therefore held it could not affirm the circuit court’s grant of summary judgment on this ground. Christmas, 138 So.3d at 171-72, 2013 WL 2302708, at *2 (citing Byrd v. Woods, 90 So.3d 666, 671 (Miss.Ct.App. 2012)). Exxon did timely raise this issue before the circuit court, although the circuit court did not address it. See Briggs v. Benjamin, 467 So.2d 932, 934 (Miss.1985).

      . The Mississippi Commission on Wildlife, Fisheries, and Parks is created by Section 49-4-4 of the Mississippi Code. Miss.Code Ann. § 49-4-4 (Rev.2012). The powers of the Mississippi Department of Wildlife, Fisheries, and Parks are set out in Section 49-4-9 of the Mississippi Code. Miss.Code Ann. § 49-4-9 (Rev.2012).

      . Miss. Admin. Code 40-2:5.l.C.l; see also Miss.Code Ann. § 49-7-47 (Rev.2012); Miss. Code Ann. § 49-7-141 (Rev.2012) (subjecting violators to a fine of $2,000-$5,000 and a mandatory five-day jail sentence).

      . Generally, a nuisance alligator is one that has shown aggressive behavior, one that hangs around seeking handouts, or one that is in a place it has absolutely no business being, such as a swimming pool or garage or in the middle of the highway. [Mississippi Department of Wildlife, Fisheries, and Parks] also will remove unwanted alligators from private ponds used for aquaculture or recreation. An alligator that has eaten pets or livestock is generally considered to be a nuisance gator.
      “The Recovery of the American Alligator in Mississippi,” https://www.mdwfp.com/ wildlife-hunting/alligator-program/the-recovery-of-theamerican-alligator-in-mississippi.aspx (last visited May 14, 2014).

      .Miss. Admin. Code 40-2:5.1.

      . Sickman, 184 F.2d at 618.

      . While the MDWFP’s report stated that it would be “virtually impossible" to verify if alligators would disperse to neighboring ponds, the report indicated that such dispersal was a reasonable expectation.


source: Caselaw Access Project

author: RANDOLPH, Presiding Justice, COLEMAN, Justice,

license: Public Domain

text:
    Andrea GAIENNIE v. Michael McMILLIN.
    No. 2012-CA-01772-SCT.
    Supreme Court of Mississippi.
    May 15, 2014.

      Brent E. Southern, Jackson, attorney for appellant.
    Penny B. Lawson, J. Mack Varner, Vicksburg, attorneys for appellee.
    Before RANDOLPH, P.J., PIERCE and KING, JJ.
   RANDOLPH, Presiding Justice,

for the Court:

¶ 1. Today we consider whether the Warren County Chancery Court’s finding that Andrea Gaiennie was required under a property-settlement agreement to pay for one-half of her children’s private-school tuition, and a related contempt issue were in error. We reverse and remand.

FACTUAL/PROCEDURAL BACKGROUND

¶ 2. On May 15, 2007, Andrea Gaiennie and Michael McMillin entered a divorce decree on the ground of irreconcilable differences. In conjunction with the divorce decree, the parties entered into a property-settlement agreement. At the time of the divorce, Gaiennie and McMillin had two children, ages seven and three. The agreement provided for joint legal custody, with McMillin having primary physical custody of the two children. The agreement provided in part:

3. Child Support and School Expenses. Wife will not be required to pay child support to Husband, as Husband acknowledges and represents unto the Court that he has sufficient income in excess of that set out in the Mississippi Child Support Guidelines to fully support the minor children in his custody without contributions of child support from the Wife. However, Husband and Wife agree that each will pay one-half of any and all daycare expenses, and any other expenses relating to daycare or school, including school supplies, and sports activities for the minor children, including the costs of any uniforms, fees, and travel expenses for sports activities.
12. College Education and Expenses. Husband will continue payments to the Mississippi Impact for the minor children for their college tuition and Wife agrees to contribute and pay $500.00 per year to the Mississippi Impact fund for the minor childrens’ college tuition beginning in 2007. Husband and Wife further agree that whatever college expenses are not covered by the Mississippi Impact fund, that as such college expenses that are not covered become due, Husband and Wife will discuss and confer with one another as to which are reasonable for college for the minor children, they and will [sic] decide, if possible, the amount that each will pay toward said college expenses, and if they cannot agree, then Husband and Wife agree that the Chancery Court of Warren County will make such decisions regarding] the college expenses for the minor children. That this agreement will extend throughout the attainment of a bachelor’s degree or equivalent. This obligation may extend past the twenty-first birthday of either child, but it shall not extend past the twenty-third birthday of either child. Total expenses for which the Husband and Wife may be responsible and may agree on include the following: tuition, room and board, books, student fees, transportation expenses, fraternity or sorority dues, fees or expenses, and a reasonable amount of discretionary spending money. Husband and Wife further agree to consult with one another and with each minor child as to the choice of the appropriate college or university. The college or university shall be selected by the parties and the child, the majority rule.

¶ 3. At the time of the divorce, the seven-year-old was enrolled in a public school, and the three-year-old attended daycare. The older child continued to attend public school. The younger child was enrolled in public school upon reaching school age. The children continued to attend public school through the 2009-2010 school year. However, after a bullying incident in 2010, the children were enrolled in a private school, paid for equally by Gaiennie and McMillin. Gaiennie testified that, in exchange for her help paying for private school, McMillin agreed to release Gaiennie from her obligation to make her yearly contribution to the college fund. Neither sought modification of the decree to reflect this alleged agreement.

¶ 4. Both children attended the private school through the 2010-2011 and 2011-2012 school years. Prior to the 2012-2013 school year, Gaiennie testified that she once again demanded a document acknowledging their oral agreement to relieve her of her obligation to contribute to the college fund. After McMillin rebuffed Gaiennie’s request, Gaiennie refused to continue paying tuition for the 2012-2013 school year. On February 24, 2012, Gaiennie filed a Petition for Clarification, Enforcement and/or Modification, asking the chancellor to confirm that precollege private-school tuition is not required under the property-settlement agreement, or, in the alternative, if it is required, to modify the property-settlement agreement to relieve her of the obligation to pay either the private-school tuition or the annual college-fund contribution. Gaiennie also asked for McMillin to disclose the specifics of the college fund so that she could make her required contribution directly into the fund. McMillin filed a Counter-Petition for Contempt and/or Modification of Judgment of Divorce, arguing that Gaiennie should be found in contempt for failing to contribute to the college fund in 2010 and 2011 and, if she is not required to pay for one-half of private-school tuition under the agreement, that it be modified to require her to pay one-half.

¶ 5. A hearing was held on August 24, 2012. In addition to the testimony discussed supra, Gaiennie testified that she has been unable to make her yearly contributions to the “Mississippi Impact” fund as outlined in the agreement, as the “Mississippi Impact” fund does not exist. Instead, MeMillin’s father had established a “Mississippi Education Savings Program” for the children, a separate type of college-savings fund. The parties offered conflicting evidence as to whether Gaiennie had made any contributions to the fund in 2007 and 2008. However, McMillin presented records of Gaiennie’s 2009 payment. Gaiennie conceded that she made no payments in 2010 and 2011.

¶ 6. On September 27, 2012, the chancellor entered a Memorandum Opinion and Final Judgment. The chancellor made the following findings, inter alia:

1. Gaiennie is obligated under the property settlement agreement to pay one-half of private-school tuition.
2. McMillin must “immediately provide [] Gaiennie with the details and information regarding the ... college fund.”
3. Gaiennie is in contempt of court for failing to contribute to the college fund for the years 2007, 2008, 2010 and 2011.
4. Gaiennie is ordered to pay $1500.00 in attorney fees.

On October 9, 2012, the chancellor denied Gaiennie’s Petition for Reconsideration and/or Modification. Aggrieved by the chancellor’s decisions, Gaiennie timely filed the instant appeal on October 25, 2012. We deny Appellee’s Emergency Motion to Vacate Order and Lift Stay.

ISSUES

¶7. Gaiennie raises the following issues, restated as follows:

I. Whether the chancellor erred in requiring Gaiennie to pay one-half of the private-school tuition.
II. Whether it was improper to hold Gaiennie in contempt of court.
III. Whether it was improper to assess attorney fees against Gaiennie.

ANALYSIS

I. Gaiennie is not obligated to pay for private-school tuition.

¶ 8. “While a chancellor’s decisions in a [domestic] action are reviewed for manifest error, a property settlement agreement is a contract, and contract interpretation is a question of law, which is reviewed de novo.” McFarland v. McFarland, 105 So.3d 1111, 1118 (Miss.2013) (citing Harris v. Harris, 988 So.2d 376, 378 (Miss.2008)). This Court applies a three-tiered approach to contract interpretation. Facilities, Inc. v. Rogers-Usry Chevrolet, Inc., 908 So.2d 107, 111 (Miss.2005). First, we apply the “four corners” test, wherein this Court “looks to the language that the parties used in expressing their agreement.” Id. “When construing a contract, we will read the contract as a whole, so as to give effect to all of its clauses.” Id. “On the other hand, if the contract is unclear or ambiguous, the court should attempt to ‘harmonize the provisions in accord with the parties’ apparent intent.” Id. (quoting Pursue Energy Corp. v. Perkins, 558 So.2d 349, 352 (Miss.1990)). “The mere fact that the parties disagree about the meaning of a provision of a contract does not make the contract ambiguous as a matter of law.” Cherry v. Anthony, Gibbs, Sage, 501 So.2d 416, 419 (Miss.1987). Secondly, if the contract is unclear or ambiguous, this Court applies the “discretionary ‘canons’ of contract construction.” Facilities, 908 So.2d at 111. Thirdly, “if the contract continues to evade clarity as to the parties’ intent, the court should consider extrinsic or parol evidence.” Id.

¶ 9. Gaiennie argues that, under the terms of the property-settlement agreement, she is not obligated to pay one-half of private-school expenses. Gaiennie points to the absence of the word “tuition” in the “school expenses” provision as a clear and unambiguous indication that pre-college private-school tuition was not part of the property-settlement agreement. Gaiennie also argues that there was no consideration of private school at the time the property-settlement agreement was signed. McMillin argues that the plain meaning of the phrase “any other expense related to daycare or school” necessarily encompasses private-school tuition, as private-school tuition is a school-related expense.

¶ 10. We disagree. The absence of any reference to private school or private-school tuition in provision three controls the issue. “When a contract is clear and unambiguous, this Court ‘is not concerned with what the parties may have meant or intended but rather what they said, for the language employed in a contract is the surest guide to what was intended.’ ” Ivison v. Ivison, 762 So.2d 329, 385 (Miss.2000) (citing Shaw v. Burchfield, 481 So.2d 247, 252 (Miss.1985)). Looking to the four corners of the agreement, we find that it is not ambiguous. Tuition is conspicuously absent from the “school expenses” provision. (See Zweber v. Zweber, 102 So.3d 1098, 1101-02 (Miss.2012)) (holding that “flying lessons” were not included in the final judgment of divorce).

¶ 11. Notwithstanding that the plain language of the agreement requires no private-school tuition, if we accepted Gaiennie’s argument that absence of the word “tuition” creates an ambiguity, the result would be no different, for we would first attempt to harmonize the provisions in accord with the parties’ apparent intent. The fact that tuition was specifically included within “college expenses,” but not “school expenses” reveals the parties’ intent that private-school tuition was not intended under the agreement.

¶ 12. Even if we went beyond the “four-corners test,” and looked to the intent of the parties, Gaiennie would still prevail. Neither party disputes that, at the time the agreement was signed, the eldest child was enrolled in public school. Neither party disputes that, at the time the agreement was signed, it was their intent for the children to attend public school. The children attended public school for nearly three years before a bullying incident prompted consideration of private school. We find that, because private-school tuition was not specified in the agreement, we must reverse the chancellor’s holding requiring Gaiennie to pay for one-half of the children’s private-school tuition.

II. The chancellor erred in finding Gaiennie to be in contempt of court.

¶ 13. “The purpose of civil contempt is to enforce or coerce obedience to the orders of the court.” Lahmann v. Hallmon, 722 So.2d 614, 620 (Miss.1998) (citations omitted). “A contempt citation is proper only when the contemner has wilfully and deliberately ignored the order of the court.” Mizell v. Mizell, 708 So.2d 55, 64 (Miss.1998) (citing Cooper v. Keyes, 510 So.2d 518, 519 (Miss.1987)). “In a contempt action involving unpaid child support, when the party entitled to receive support introduces evidence that the party required to pay the support has failed so to do, a prima facie case of contempt has been made.” Id. (citation omitted). The burden then “shifts to the paying party to show an inability to pay or other defense, and this proof must be clear and convincing and rise above a state of doubtfulness.” Id. (citations omitted). “Whether a party is in contempt is left to the Chancellor’s substantial discretion.” Id. (citation omitted).

¶ 14. Under the terms of the property-settlement agreement, Gaiennie was required to contribute $500 annually to the “Mississippi Impact Fund.” Trial testimony established that no fund existed. Instead, McMillin’s father had established a “Mississippi Education Savings Program.” Neither party sought to modify the agreement to reflect the correct fund. It was impossible for her to' comply with the agreement as written. Thus, it was an abuse of discretion to hold her in contempt.

III. The chancellor did not err in awarding attorney fees.

¶ 15. “An award of attorney’s fees in domestic cases is largely a matter entrusted to the sound discretion of the trial court.” Zeman v. Stanford, 789 So.2d 798, 806 (Miss.2001) (citations omitted). “Unless the chancellor is manifestly wrong, his decision regarding attorney fees will not be disturbed on appeal.” Id. (citations omitted). Finding Gaiennie to be in contempt, the chancellor ordered Gaiennie to pay for a portion of McMillin’s attorney fees. Because the chancellor ordered Gaiennie to pay attorney fees based on erroneously finding her in contempt, we reverse the award of attorney fees. However, the chancellor did not err in refusing to award Gaiennie attorney fees.

CONCLUSION

¶ 16. The chancellor erred in requiring Gaiennie to pay for one-half of her children’s private-school tuition. The chancellor also erred in finding Gaiennie to be in contempt, and awarding attorney fees as a result, for failing to contribute to the Mississippi Impact Fund. Thus, we reverse the trial court’s judgment and remand the case to the Warren County Chancery Court for further proceedings consistent with this opinion.

¶ 17. REVERSED AND REMANDED.

WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR. COLEMAN, J„ CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.

COLEMAN, Justice,

concurring in part and dissenting in part:

¶ 18. I agree with the majority’s opinion that the chancellor erred in finding that Gaiennie was in contempt of court. However, I also agree that the terms of the property-settlement agreement were unambiguous. However, I disagree that tuition is not a school expense. Therefore, I respectfully concur in part and dissent in part.

¶ 19. The Court has stated that if a contract is unambiguous, “ ‘the intention of the contracting parties should be gleaned solely from the wording of the contract’ and parol evidence should not be considered.” Epperson v. SOUTHBank, 93 So.3d 10, 16 (¶ 17) (Miss.2012) (quoting Turner v. Terry, 799 So.2d 25, 32 (¶ 16) (Miss.2001)). The Court must “accept the plain meaning of a contract as the intent of the parties where no ambiguity exists.” A & F Props., LLC v. Madison County Bd. of Supervisors, 933 So.2d 296, 301 (¶ 12) (Miss.2006) (quoting Ferrara v. Walters, 919 So.2d 876, 882 (¶ 13) (Miss.2005)).

¶ 20. In the case sub judice, the majority takes the position that tuition is not a school expense. Merriam-Webster defines “expense” as a “financial burden or outlay,” equating the term with “cost.” Merriam-Webster Collegiate Dictionary 408 (10th ed.1993). Merriam-Webster goes on to define “tuition” as “the price of or payment for instruction.” Id. at 1271. Substituting in the definition of expense, the provision would read “any other [financial burden] related to daycare or school.” It is my opinion that such a provision would unambiguously include “the price of or payment for instruction,” which, I would imagine, parents across the country wholeheartedly would agree amounts to a “financial burden.” Accordingly, I would affirm the chancellor’s holding requiring Gaiennie to pay one-half of the children’s private-school tuition.


author: RANDOLPH, Presiding Justice,

text:
    Joel MISITA v. Roy A. (Al) CONN and Mitzi P. Conn.
    No. 2011-CT-01865-SCT.
    Supreme Court of Mississippi.
    May 15, 2014.

      R. Kent Hudson, Natchez, attorney for appellant.
    Katie W. Freiberger, Natchez, attorney for appellees.
   ON WRIT OF CERTIORARI

RANDOLPH, Presiding Justice,

for the Court:

¶ 1. Roy and Mitzi Conn filed suit in the Chancery Court of Adams County against their adjoining landowner Joel Mi-sita, who had placed a structure on his land. The Conns sought to enforce a warranty deed restriction placed by their predecessors in title that prohibited Misita from erecting any “structures” on three acres of his land. The chancery court ruled in favor of the Conns and ordered the removal of the structure. The Court of Appeals affirmed the Conns’ authority to enforce the restrictive- covenant but reversed the chancery court’s determination that it was a structure. This Court granted the Conns’ Petition for Writ of Certio-rari. We affirm in part and reverse in part the judgment of the Court of Appeals and reinstate and affirm the judgment of the chancery court.

FACTS AND PROCEDURAL HISTORY

¶ 2. Kevin and Rebecca Wilson owned a residence and approximately twenty-seven acres in Adams County. On November 16, 2007, the Wilsons deeded approximately three acres of the twenty-seven acres to Misita. The conveyance consisted of unimproved property fronting Highway 61 in Adams County and adjoined Misita’s existing seven acres, where Misita had constructed a sixty-two-feet-high, custom-built, three-story home. There were also multiple outbuildings, sheds, and trailers on this property as well. Prior to the sale of the three acres, Kevin visited Misita and informed Misita that the deed would contain a provision “that no structures are to be erected on the property.” Misita stated that such a provision was “fine,” but now Misita alleges he understood Wilson’s request to encompass only structures like his sixty-two-feet high home. The warranty deed conveyed to Misita from Wilson contained a provision which provided, inter alia, that “[n]o structures are to be erected on the property.”

¶ 3. On June 19, 2008, the Wilsons sold their remaining acreage and home, which was appraised for $850,000, to Al and Mitzi Conn. Prior to the sale, Kevin informed the Conns that the three acres of Misita’s property fronting Highway 61 were subject to a scenic easement and no structures could be placed on the property. A1 later reviewed the deed from Wilson to Misita to confirm the “no-structure” provision pri- or to purchasing the property. The Conns testified that the restrictive covenant played a major role in their decision to purchase the property, as it prevented the three-acre frontage portion of Misita’s property from becoming “junked-up” like the rest of Misita’s property. The warranty deed conveying the property did not include the restrictive covenants placed on Misita’s land. After the Conns purchased the Wilson property, Misita informed the Conns that he planned to build a “sign” and display it on the three acres. Despite verbal and written objection from A1 Conn, Misita constructed the structure at issue and placed it on the three acres.

¶ 4. Although the parties and the chancellor referred to Misita’s creation as a “sign,” after reviewing the record and photographs, we reach the conclusion that it is a structure with signage. It is a three-sided structure with a floor and a corrugated metal roof. It is constructed of metal and wood. It is triangular in shape and connects to three poles that form a frame, with two wheels. Each side is eighteen feet in length. The height is approximately fifteen feet, and the structure is capable of being raised higher. Exterior steps and a landing are attached to the back side. Two sides of the structure serve as illuminated signage. Each of those two sides contains four exterior lights that extend outward from the roof-line a few feet and hang down, resembling street lamps. On the remaining side, the back side, a single light illuminates the door and exterior steps used for entry. The door may be locked by key and has glass window panes. An aerial power line provides electricity to the interior of the structure, in addition to the outside lighting. The interior is approximately 140 square feet. It is a fully-enclosed room, complete with a floor and a roof. The room is air-conditioned and serves as a showroom for some of Misita’s works. Although wheels are attached, the structure has not been moved since Misita placed it in its current position, by fitting and cross-bolting the frame into permanently attached receptors set by concrete into the ground.

¶ 5. On March 24, 2011, the Conns filed suit. A trial was held on September 27, 2011. On October 25, 2011, the chancellor entered a judgment in favor of the Conns and ordered the removal of Misita’s “sign.” Misita appealed, and we assigned the case to the Court of Appeals. Misita asserted the following issues before the Court of Appeals: (1) whether the Wilson-Misita deed restriction is a real covenant that runs with the land; and (2) whether the restriction is so ambiguous and indefinite as to be unenforceable. Misita v. Conn, 138 So.3d 168, 176-80, 2013 WL 2302945, **1-4 (Miss.Ct.App. May 28, 2013). The Court of Appeals defined “structure” as “something built or constructed, as a building, bridge, or dam.” Id. at 178, 2013 WL 2302945, at *3 (quoting Random House Webster’s Unabridged Dictionary 1887 (2nd ed.2001)). The Court of Appeals opined that the “sign” was not a structure, as it was neither a building, a bridge, or a dam, and that it was more akin to a “vehicle.” Id. The Conns filed a petition for writ of certiorari, which this Court granted.

ISSUES

¶ 6. We address the following two issues:

I. Whether the restriction runs with the land.
II. Whether Misita’s sign is a structure.

STANDARD OF REVIEW

¶ 7. “The Supreme Court reviews the trial court’s findings of fact under the manifest-error/substantial-evidence standard.” Long Meadow Homeowners’ Ass’n, Inc. v. Harland, 89 So.3d 573, 577 (Miss.2012). However, “questions concerning the construction and interpretation of contracts are questions of law,” which we review de novo. Royer Homes of Mississippi, Inc. v. Chandeleur Homes, Inc., 857 So.2d 748, 751 (Miss.2003).

DISCUSSION

I. The restriction runs with the land.

¶ 8. Before the Conns, as subsequent purchases of the Wilson property, can seek to enforce the restrictive covenant at issue, the covenant must “run with the land.” A covenant will “run with the land” if three conditions are met: “(1) the covenanting parties must intend to create such covenant; (2) privity of estate must exist between the person claiming right to enforce the covenant and the person upon whom burden of covenant is to be imposed; and (3) the covenant must ‘touch and concern’ the land in question.” Hearn v. Autumn Woods Office Park Prop. Owners Ass’n, 757 So.2d 155, 158 (Miss.1999) (citing Vulcan Materials Co. v. Miller, 691 So.2d 908, 913 (Miss.1997)). A covenant that runs with the land “is not void merely because it is not referred to in any deed conveyed to subsequent owners.” Hearn, 757 So.2d at 158-59. “[A] real covenant [that runs with the land] creates a servitude upon the realty (the servient estate) for the benefit of another parcel of land (the dominant estate).” Miller, 691 So.2d at 913.

¶ 9. In the case sub judice, the chancellor found that the covenant runs with the land based on “the nature of the covenant or restriction itself.” We find no error in the chancellor’s conclusion. The chancellor found that Kevin Wilson told the Conns about the restriction and that Misita sought permission to erect the structure from the Conns. Privity of estate exists, as the Conns purchased the dominant land from the Wilsons with notice of the restrictive covenant. See Clement v. R.L. Burns Corp., 373 So.2d 790, 794 (Miss.1979) (holding that “[pjrivity implies succession. He who is in privity stands in the shoes or sits in the seat of the owner from whom he derives his title”). Finally, the covenant “touches and concerns” the land, as it imposes a burden on the use and enjoyment of the land. Miller, 691 So.2d at 914. Thus, the Conns possess the right to seek enforcement of the restrictive covenant.

II. Misita’s “sign” is a structure.

¶ 10. Accordingly, we now analyze whether the object of this dispute is a structure or not. “Generally, courts do not look with favor on restrictive covenants.” Kemp v. Lake Serene Prop. Owners Ass’n, Inc., 256 So.2d 924, 926 (Miss.1971). “Such covenants are subject more or less to a strict construction and in the case of ambiguity, construction is usually most strongly against the person seeking the restriction and in favor of the person being restricted.” Id. “An important corollary rule, however, is that the clear and unambiguous wording of protective covenants will not be disregarded merely because a use is prohibited or restricted.” Andrews v. Lake Serene Prop. Owners Ass’n, 434 So.2d 1328, 1331 (Miss.1983). “If the intent to prohibit or restrict be expressed in clear and unambiguous wording, enforcement is available in the courts of this state.” Id. “The language of restrictive covenants is to be read ‘in its ordinary sense,’ considering the entire document as well as the circumstances surrounding its formulation to ascertain its meaning, purpose and intents.” Stokes, 654 So.2d at 527.

¶ 11. Both the circumstances and the plain language of the deed evidence that the word “structure” is clear and unambiguous and has broader application than sixty-two-feet-high buildings. “A reviewing court is concerned with what the contracting parties have said to each other, not some secret thought of one not communicated to the other.” Royer Homes, 857 So.2d at 752 (quoting Turner v. Terry, 799 So.2d 25, 32 (Miss.2001)). Therefore, the language of the restriction should be read in its “ordinary sense.”

¶ 12. We find that Misita’s “sign” is a “structure.” It is a one-room structure, complete with roof, floor, air conditioning, lights, door with window panes, and a staircase, inter alia. While not a bridge or dam, it is akin to a building or edifice, and is clearly “something built or constructed.” Despite its adaptability for transport, it had not been moved since Misita erected it. The chancellor, who physically inspected the structure, found that it “is anchored to pipes which are sunk in the ground and Misita further secured the pipes by concrete.”

¶ 13. Black’s Law Dictionary defines a structure as “[a]ny construction, production, or piece of work artificially built up or composed of parts purposefully joined together.” Black’s Law Dictionary 1464 (8th ed.2004). In Sullivan v. Kolb, the Court of Appeals defined “structure” as “[sjomething made up of a number of parts that are held or put together in a particular way. — The way in which parts are arranged or put together to form a whole; makeup. — The interrelation or arrangement of parts in a complex entity. — Something constructed.” Sullivan v. Kolb, 742 So.2d 771, 777 (Miss.Ct.App.1999) (citing The American Heritage College Dictionary (3d ed.1993)). It is a structure under both Black’s and Sullivan, as it is “composed of parts purposely joined together.” We find no error in the chancellor’s finding.

CONCLUSION

¶ 14. The object of this dispute is a structure. Therefore, the chancellor did not err in finding that it violated the provision “that no structures are to be erected on this property.” While we affirm the Court of Appeals’ judgment that the restrictive covenant is enforceable, we reverse the judgment of the Court of Appeals that the “sign” is not a structure, and we reinstate and affirm the judgment of the Chancery Court of Adams County.

¶ 15. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART. THE JUDGMENT OF THE ADAMS COUNTY CHANCERY COURT IS REINSTATED AND AFFIRMED.

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

      . Misita is an artisan and builds custom metal items for clients.

      . Misita built his home. The first floor of that structure serves as his metal shop and is much higher than a standard three-story building.

      . The structure is eighteen by eighteen by eighteen feet.

      . The interior of the structure is equal to a ten-feet-by-fourteen-feet-square room.

      . Similar restrictive covenants have been met with approval. Harland, 89 So.3d at 575 ("no structure could be erected, placed or permitted to remain on any lot other than one single family residential structure”); Hearn, 757 So.2d at 156 (easement "shall be perpetual and irrevocable”); Stokes v. Bd. of Directors of La Cav Imp. Co., 654 So.2d 524, 525 (Miss.1995) ("no buildings, structures, outbuildings or any other improvements shall be erected on the property conveyed except... a pier.”); Kinchen v. Layton, 457 So.2d 343, 345 (Miss.1984) ("[n]o structure of a temporary character, basement, tent, shack, garage, or other outbuilding shall be placed upon or used on any lot at any time for purpose either temporarily or permanently.”)

      . "It has been said that to meet this requirement, the covenant must be so related to the land as to enhance its value and confer a benefit upon it, or, conversely, impose a burden on it.” Miller, 691 So.2d at 914 (citing 20 Am.Jur.2d Covenants, Conditions, and Restrictions § 15 (1995)). Or, “a covenant must bear upon the use and enjoyment of the land.” Miller, 691 So.2d at 914.

      . The limitation that the Court of Appeals put upon the example of a structure is not consistent with its common usage, for there are many structures that do not qualify as a building, dam, or bridge, e.g., the Washington Monument, the Statue of Liberty, or the Great Sphinx, inter alia.

      . In Sullivan, the Court of Appeals found that a "motor home cover consisting] of a gable-style roof supported by posts” violated a protective covenant prohibiting the erection of any “structure[s]” other than a single-family dwelling. Sullivan v. Kolb, 742 So.2d 771, 774-777 (Miss.Ct.App. 1999)


author: CHANDLER, Justice, DICKINSON, Presiding Justice, KITCHENS, Justice,

text:
    Daryl CONNER v. STATE of Mississippi.
    No. 2011-CT-00941-SCT.
    Supreme Court of Mississippi.
    May 15, 2014.

      Office of State Public Defender by Justin T. Cook, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   CHANDLER, Justice,

for the Court.

¶ 1. A jury found Daryl Conner guilty of burglary and felony fleeing a police officer, and the Circuit Court of DeSoto County sentenced him as a habitual offender to two consecutive life sentences. Conner appealed to the Court of Appeals, which affirmed his convictions and sentences. This Court granted Conner’s petition for certiorari in which Conner argues that the evidence was insufficient to support his conviction for felony fleeing, that the trial court erred by failing to instruct the jury on the elements of larceny, and that, because the pen packs establishing Conner’s habitual-offender status were not admitted at the sentencing hearing, the trial court erred by sentencing him as a habitual offender.

¶2. We affirm the judgments of the Court of Appeals and the trial court. We find that the evidence was sufficient to support Conner’s felony-fleeing conviction and that the jury was fully and fairly instructed. We further find that the pen packs establishing Conner’s status as a habitual offender were admitted at the sentencing hearing. Therefore, we affirm Conner’s convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶ 3. One morning, Mary Campbell entered her master bedroom to discover an unknown man in her home on Windersgate Drive in Olive Branch, Mississippi. The man fled from the home, entered a small, dark automobile parked in an adjacent driveway, backed his car down Winders-gate Drive to Collinswood Road, and drove off. Once the car left her sight, Campbell entered her home and called 911.

¶ 4. The 911 dispatcher relayed the description of the dark vehicle to officers in the area. Within approximately one minute of the dispatch, Officer Matthew Kinne spotted a car matching Campbell’s description of the car at the corner of Collinswood Road and Germantown Road. Officer Kinne initiated a pursuit of that vehicle, which ended when the vehicle crashed. Then, a foot pursuit ensued and officers arrested the driver.

¶5. Campbell later identified Daryl Conner from a photo lineup as the man in her home. The grand jury indicted Conner for burglary of a dwelling, felony fleeing, and petty larceny. Later, the trial court amended Conner’s indictment to charge him as a habitual offender. The jury convicted Conner of burglary of a dwelling and felony fleeing, and the trial court sentenced him as a habitual offender to serve two consecutive life sentences without the opportunity for parole.

ANALYSIS

I. Whether the State presented sufficient evidence of Conner’s identity to support his conviction for felony fleeing.

¶ 6. The Court of Appeals recognized that no witness had identified Conner as the person arrested following the pursuit. Conner v. State, No.2011-KA-00941-COA, 138 So.3d 158, 162-63, 2013 WL 1800065, *3 (Miss.Ct.App. April 30, 2013). But the Court of Appeals also found that:

[t]he short passage of time from Campbell’s report of a man in her home and the short distance from her home to the point where Officer Kinne spotted the similar vehicle and began the chase were sufficient evidence for the jury to infer that Conner was the individual who was driving the car and fled the arrest and whom Officer Kinne caught and arrested at the end of the chase.

Id. Conner argues that no reasonable juror could draw such an inference from the evidence presented at trial. Although we agree with the Court of Appeals’ conclusion that the evidence was sufficient to support the felony-fleeing conviction, we do so for a different reason.

¶ 7. On a challenge to the sufficiency of the evidence, this Court will reverse and render “if the facts and inferences point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty....” Young v. State, 119 So.3d 309, 315 (Miss.2013) (quoting Hughes v. State, 983 So.2d 270, 275-76 (Miss.2008)). Our “relevant inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Young, 119 So.3d at 315. “This Court considers the evidence in the light most favorable to the state.” Hughes, 983 So.2d at 276 (citing Bush v. State, 895 So.2d 836, 843 (Miss.2005)). “The state receives the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Hughes, 983 So.2d at 276 (citing Wilson v. State, 936 So.2d 357, 363 (Miss.2006) (citing Hawthorne v. State, 835 So.2d 14, 22 (Miss.2003))). Likewise, the sufficiency of the evidence used to identify the accused “is primarily a question for the jury, provided the evidence could reasonably be held sufficient to comply with the requirement of proof beyond a reasonable doubt.” Passons v. State, 239 Miss. 629, 634, 124 So.2d 847, 848 (1960).

¶8. The Court of Appeals primarily relied on the proximity between the location of the burglary and where Officer Kinne spotted a vehicle matching the description provided by Campbell. This circumstantial evidence turns on the fact that Campbell last saw Conner driving down Collinswood Road, which leads only to Germantown Road, and that Officer Kinne spotted the vehicle he pursued at the corner of Collinswood and Germantown Roads approximately one minute after he received the description from dispatch.

¶ 9. But none of the evidence presented at trial established the distance Conner had to travel on Collinswood Road in order to reach Germantown Road. If that distance were, for example, 500 yards, then the jury’s verdict based upon the timing of events established by the evidence would appear reasonable. But if that same distance were ten miles, the one-minute time frame would operate against the State, and the jury’s decision would prove completely unreasonable, as no reasonable juror could infer that Conner could travel ten miles in one minute. Accordingly, in the absence of any evidence of the length of Collins-worth road, the Court of Appeals’ reliance on proximity was misplaced.

¶ 10. That said, a reasonable juror could draw a chain of inferences through the evidence presented at trial to sufficiently identify Conner as the perpetrator of the felony fleeing. Campbell identified Conner at trial as the man she had seen in her home. She also testified that she provided a description to the 911 dispatcher of a tall black man fleeing in a dark car. Officer Kinne testified that he received a description of the car and suspect from dispatch and that, after receiving that description, he began looking for a black man in a dark sedan, wearing a dark shirt.

¶ 11. At trial, the prosecution entered into evidence a video from Officer Kinne’s dashboard camera that revealed a black male, wearing a dark-colored shirt, fleeing from the dark sedan Officer Kinne pursued. A reasonable juror could conclude that the man running from the sedan was the same man described by Campbell to the dispatcher, and therefore the same man Campbell identified during trial. Accordingly, the State presented sufficient evidence to identify Conner as the perpetrator of the felony fleeing, and we affirm his conviction on that charge.

II. Whether the trial court erred by failing to instruct the jury on the elements of larceny.

¶ 12. Conner was convicted of burglary under Mississippi Code Section 97-17-23, which provides that “[ejvery person who shall be convicted of breaking and entering the dwelling house or inner door of such dwelling house of another, whether armed with a deadly weapon or not, and whether there shall be at the time some human being in such dwelling house or not, with intent to commit some crime therein, shall be punished.... ” Miss.Code Ann. § 97-17-23 (Rev.2006). The trial court gave the following instruction on the elements of burglary:

In Count I, Defendant Daryl Conner has been charged with the crime of Burglary of a Dwelling.
If you find from the evidence in this case, beyond a reasonable doubt, that:
1) On or about August 18, 2007, the Defendant Daryl Conner unlawfully broke and entered;
2) The dwelling house of Billy and/or Mary Francis Campbell;
3) With the intent to commit the crime of Larceny inside the building;
then you shall find Defendant Daryl Conner guilt of Burglary of a Dwelling in Count 1.
If the State has failed to prove any one of these elements beyond a reasonable doubt, then you shall find the Defendant not guilty in Count 1.

The trial court also instructed the jury that “[a]n inference of the intent to steal may arise from proof of the breaking and entering.”

¶ 13. Conner argues that the jury instructions were defective because the jury was not instructed on the elements of the intended crime of larceny. But he failed to request a larceny instruction at trial. Nonetheless, the issue is not proeedurally barred. The trial court must “assure that the jury is ‘fully and properly instructed on all issues of law relevant to the case.’ ” Harrell v. State, 134 So.3d 266, 270 (Miss.2014) (quoting Kolberg v. State, 829 So.2d 29, 46 (Miss.2002), overruled on other grounds. “There is no doubt that the trial court is ultimately responsible for rendering proper guidance to the jury via appropriately given jury instructions, even sua sponte.” Harrell, 134 So.3d at 270 (quoting Kolberg, 829 So.2d at 45).

¶ 14. This Court reviews jury instructions “as a whole to determine whether the jury was fully and fairly instructed according to the applicable law.” Clark v. State, 40 So.3d 531, 544 (Miss.2010). We will not find error if the instructions fairly, though not perfectly, announce the applicable rules of law. Id. The crime of burglary requires the jury to find beyond a reasonable doubt that the defendant broke and entered the dwelling house of another with the intent to commit some crime therein. Miss.Code Ann. § 97-17-23(1) (Rev.2006). This Court has held that jury instructions on burglary must identify the crime the defendant intended to commit. Daniels v. State, 107 So.3d 961, 964 (Miss.2013).

¶ 15. Conner’s jury instructions complied with Daniels by identifying larceny as the crime he intended to commit. The jury was instructed to find Conner guilty of burglary if it concluded, beyond a reasonable doubt, that Conner unlawfully broke and entered the victim’s dwelling house with the intent to commit the crime of larceny therein. The jury also was instructed that “[a]n inference of the intent to steal may arise from proof of the breaking and entering.” See Gillum v. State, 468 So.2d 856, 861 (Miss.1985) (holding that proof of breaking and entering raises a reasonable inference of an intent to steal).

¶ 16. We find that, although the jury instructions did not list the elements of larceny, they fully and fairly informed the jury of the intent requirement for burglary. The elements of larceny are the taking and carrying away of another’s personal property without consent and with felonious intent, that is, the intent to permanently deprive the owner of his property. Love v. State, 208 So.2d 755, 756 (Miss.1968). The Court has described “felonious intent” as “the intent to steal.” Smith v. State, 214 Miss. 453, 59 So.2d 74 (1952). The jury instructions expressly stated that the “required intent” that the jurors had to find was “the intent to steal.” And the general lay understanding of the term “larceny” is that it connotes stealing or theft. Commonwealth v. Lawrence, 11 Mass.App.Ct. 990, 418 N.E.2d 629, 631 (1981). While the trial court should instruct the jury on the elements of the intended crime in a burglary trial, here, the jury instructions correctly instructed the jurors that they could find Conner guilty of burglary if they found he broke and entered the victim’s dwelling with the intent to steal. We find that the jury instructions fairly, although not perfectly, instructed the jury on the applicable law; therefore, we affirm Conner’s burglary conviction.

III. Whether the trial court erred by sentencing Conner as a habitual offender.

¶ 17. Prior to trial, the State moved to amend Conner’s indictment to charge him as a habitual offender under Mississippi Code Section 99-19-83, which provides for life imprisonment without parole or early release. Miss.Code Ann. § 99-19-83 (Rev.2007). During a pretrial hearing on the State’s motion, the State presented certified pen-pack records listing Conner’s prior convictions and an affidavit from Candace Whisman, Director of Sentence Management Services for the Tennessee Department of Corrections, explaining that Conner had served the necessary separate sentences of more than one year. The trial court granted the State’s motion and amended the indictment to add habitual-offender status.

¶ 18. At Conner’s sentencing hearing, the State did not produce the pen packs and affidavit. Instead, the State asked the trial court to “refer back to the record that the Defendant has been amended as a 1983 habitual offender.” The trial court asked if the defense had any objection to the “convictions that have previously been submitted in a motion to amend hearing being incorporated into this sentencing hearing by reference.” Conner did not lodge an objection to the incorporation by reference. He did object to the admission of the convictions on the grounds of hearsay and violation of his right of confrontation. The trial court overruled these objections. Conner then objected to habitual-offender sentencing as cruel and unusual punishment. The trial court found that the documents established Conner as a habitual offender under Section 99-19-83, rejected Conner’s proportionality argument, and sentenced him to life imprisonment as a habitual offender. Conner then objected to being sentenced as a habitual offender on the ground that his habitual-offender status had not been proven beyond a reasonable doubt.

¶ 19. Conner now argues that the State failed to meet its burden of proving his habitual-offender status because the pen-pack documents and affidavit (pen packs) were never introduced into evidence at the sentencing hearing. Conner’s argument is procedurally barred because he never raised it before the trial court. Clark v. State, 40 So.3d 531, 539 (Miss.2010). However, this Court may employ plain-error review if “a defendant’s substantive or fundamental rights are affected.” Grayer v. State, 120 So.3d 964, 969 (Miss.2013). A defendant has a fundamental right of freedom from an illegal sentence. Id. Because Conner argues that the State failed to submit evidence proving his habitual-offender status at the sentencing hearing, the argument is reviewable as plain error. Grayer, 120 So.3d at 969 (defendant’s argument that the State failed to prove his habitual-offender status with competent evidence was reviewable as plain error). “To determine if plain error has occurred, this Court must determine ‘if the trial court has deviated from a legal rule, whether that error is plain, clear[,] or obvious, and whether that error has prejudiced the outcome of the trial.’ ” Id. (quoting Lafayette v. State, 90 So.3d 1215, 1220 (Miss.2012) (Carlson, P.J., specially concurring)).

¶20. When the defendant is indicted as a habitual offender, “[a] jury is to decide the question of guilt and subsequently the circuit judge is to serve as the finder of fact in determining whether the habitual offender part of the indictment is established by the requisite degree of proof.” Seely v. State, 451 So.2d 213, 215 (Miss.1984). A sentencing hearing on a defendant’s habitual-offender status must occur separately from the trial on the principal charge. URCCC 11.03. At this hearing, the elements in the applicable habitual-offender statute must be proven beyond a reasonable doubt. Davis v. State, 680 So.2d 843, 851 (Miss.1996). We have held that pen-pack records may constitute competent evidence. Taylor v. State, 122 So.3d 707, 709, 711 (Miss.2013). The defendant must be afforded a reasonable opportunity to challenge the State’s proof. Keyes v. State, 549 So.2d 949, 951 (Miss.1989).

¶ 21. “[T]he state has the same burden of proof as to the habitual offender portion of the indictment as it has on the principal charge.” Young v. State, 507 So.2d 48, 50 (Miss.1987). The defendant has the same rights at the habitual-offender sentencing hearing as at trial. Id. In Young v. State, we observed that “there appears to be some tendency to routinely allow the state to produce some documentation of prior offenses and for the trial court to perfunctorily find the defendant an habitual offender, then routinely pass out the sentence mandated.... ” Id. The Court emphasized that “a bifurcated trial means a full two-phase trial prior to any finding that the defendant is an habitual offender and subject to enhanced punishment.” Id.

¶ 22. The Court in Young reversed and rendered Young’s habitual-offender sentencing enhancement due to deficiencies in the sentencing hearing. Id. at 50. At the sentencing hearing, the State introduced documents showing Young was a habitual offender. Id. at 49. Young objected to their admission on the ground that no foundation had been laid. Id. The prosecutor referred the trial court to Young’s trial testimony, in which he had admitted the convictions. Id. at 50. The trial judge overruled Young’s objection based on his testimony from the trial. Id. This Court held that the trial court had erred by relying on trial testimony that had not been introduced at the sentencing hearing. Id. The Court stated that “the language employed by [the prosecutor] cannot be stretched so as to be considered a reintroduction of the evidence. On the contrary, it seems simply an invitation to the trial judge to rely on that evidence without having it reintroduced, which he subsequently did.” Id.

¶ 23. In Grayer v. State, 120 So.3d 964 (Miss.2013), this Court also found a habitual-offender sentence to have been based on insufficient evidence. After the State recited Grayer’s prior felony convictions and referred the trial court to the indictment, the trial court found Grayer to be a habitual offender. Grayer, 120 So.3d at 967. The State never put certified copies of the prior convictions into evidence. Id. at 969. This Court held that, because the State had produced no evidence at the sentencing hearing to support Grayer’s habitual-offender status, the State had failed to prove beyond a reasonable doubt that Grayer was a habitual offender, and the trial court had erred by sentencing him as a habitual offender. Id.

¶ 24. Conner argues that the pen packs were not introduced into evidence at his sentencing hearing; therefore, the State failed to prove his habitual-offender status beyond a reasonable doubt. We disagree. The trial court expressly incorporated the pen packs into the record of the sentencing hearing and gave Conner an opportunity to object; Conner made no objection to the incorporation of the pen packs by reference. The trial court rejected Conner’s arguments against the admission of the pen packs, and then the court considered the pen packs before finding Conner to be a habitual offender. It is manifest from the trial court’s statements on the record that the trial court actually reviewed the pen packs at the sentencing hearing. The facts show that, while there was some irregularity in the manner in which the pen packs were introduced into evidence, they were, in fact, introduced into evidence. We note that the pen packs are part of the appellate record.

¶ 25. We observe that the incorporation of pen packs introduced at a prior proceeding “by reference” at a sentencing hearing is not the preferred method of introduction. See Stanford Young, Miss. Trial Handbook for Lawyers § 22:2 (3d ed.2013) (stating that “an attorney seeking to admit a document into evidence should identify it and have the reporter mark it for record identification”). The record of a sentencing hearing should clearly and unambiguously reflect the admission of habitual-offender evidence. This saves the appellate court from the task of combing the record to ascertain whether the State’s proof actually was admitted at the sentencing hearing. But here, unlike in Young and Grayer, the State’s evidence supporting Conner’s status as a habitual offender was admitted at the sentencing hearing. Therefore, no error occurred, and this issue is without merit.

¶ 26. Finally, we address Justice Kitchens’s argument that Conner’s Sixth Amendment right of confrontation was violated by the admission of Whisman’s affidavit. We have not held that Confrontation-Clause guarantees exist during sentencing, even if sentencing occurs under our habitual-offender statutes. Holland v. State, 705 So.2d 307, 328 (Miss.1997); but see Pitchford v. State, 45 So.3d 216, 252 (Miss.2010) (applying the Confrontation Clause to jury sentencing). The Supreme Court of the United States has held that the Confrontation Clause does not apply during the sentencing process. Williams v. Oklahoma, 358 U.S. 576, 583-84, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959); Williams v. New York, 337 U.S. 241, 246-251, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). Post-Crawford, the federal circuit courts continue to apply Williams and do not recognize a right to confrontation during sentencing proceedings. Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 1364, 158 L.Ed.2d 177 (2004); see, e.g., United States v. Beydoun, 469 F.3d 102, 108 (5th Cir.2006). In light of the fact that this Court has not determined that the Confrontation Clause applies to sentencing proceedings, and Conner does not raise this issue on appeal, we decline to find that the admission of Whisman’s affidavit was plain error. We affirm the judgments of the Court of Appeals and the DeSoto County Circuit Court.

¶ 27. COUNT I: CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER, WITHOUT THE ELIGIBILITY FOR PAROLE, AFFIRMED. COUNT III: CONVICTION OF FELONY FLEEING AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCES SHALL RUN CONSECUTIVELY TO ANY SENTENCE CURRENTLY BEING SERVED. APPELLANT SHALL PAY COURT COSTS AND A FINE OF $1,000.00 WITH CONDITIONS AND SHALL BE GIVEN CREDIT FOR 349 DAYS FOR TIME SERVED.

WALLER, C.J., RANDOLPH, P.J., LAMAR, PIERCE AND COLEMAN, JJ., CONCUR. DICKINSON, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED IN PART BY KITCHENS AND KING, JJ., KITCHENS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.

DICKINSON, Presiding Justice,

concurring in part and dissenting in part.

¶ 28. I fully join the majority’s decision to affirm Conner’s conviction for felony fleeing and his sentence as a habitual offender on that charge. But, because the trial court failed to instruct the jury adequately on Conner’s burglary charge, I would reverse that conviction.

¶ 29. The trial judge instructed the jury that, in order to convict Conner of burglary, it must find beyond a reasonable doubt that he intended to commit a larceny in Campbell’s home. But, because the trial judge did not instruct the jury on the legal requirements for a larceny, Conner now argues that the jury could not determine whether he possessed the requisite intent to commit larceny.

¶ 30. Neither the State nor Conner requested a larceny instruction at trial. In most cases, a litigant who fails to request a certain jury instruction waives the issue for appeal. However, we have made it clear that the trial judge had the ultimate duty to provide the jury with proper instructions. And a jury that has not been properly instructed on the elements of a crime is inherently unable to render a verdict based on those elements. It follows that, in such cases, the defendant’s fundamental right to due process of law and a fair trial have been compromised, and we may grant relief under the plain-error doctrine.

¶ 31. Conviction for burglary of a dwelling requires the jury to find beyond a reasonable doubt that the defendant broke and entered the dwelling of another with the intent to commit “some crime” therein. But, unless the prosecution informs the jury of the specific crime the State alleges the defendant intended to commit, the indictment is “fatally flawed.”

¶ 32. Indeed, the trial court must instruct the jury on the specific crime the State contends the defendant intended to commit because “[t]he failure to instruct the jury on some specific crime in the second element of burglary would have allowed each of the jurors to arbitrarily select some crime of which there was no proof, and use that nonexistent offense to convict [the defendant] of burglary.”

¶33. Here, the trial judge instructed the jury that, in order to find Conners guilty of burglary, it must have found that he intended to commit “larceny.” But the jury was left to guess what it means to commit a larceny. While the prosecutor was not required to prove the elements of larceny — indeed, the State could never prove the elements of larceny where the defendant broke and entered in an unsuccessful attempt to commit a larceny — it failed to consider the jury’s need to know those elements in order to analyze whether the defendant intended to commit them.

¶ 34. Larceny is “the taking and carrying away from any place, at any time, of the personal property of another, without his consent, by a person not entitled to the possession thereof, feloniously, with intent to deprive the owner of his property permanently, and to convert it to the use of the taker or of some person other than the owner.”

¶ 35. It is not an answer to say that jurors understand what is a larceny. I find it highly unlikely that all members of a jury consisting predominantly of lay persons — not attorneys and judges — would know the requirements for a larceny. But, even if some of the jurors claimed to know the requirements for a larceny, they are specifically instructed not to consider their own views of what the law requires and to apply only the law given to them by the trial judge.

¶36. So, when a trial judge requires the jury to determine whether the defendant intended to commit larceny, that judge may not leave the jury to speculate as to the meaning of larceny. This is not to say that all jurors are completely ignorant of the law — they are not. But, because jurors are forbidden from applying their own knowledge of the law, they must be informed by the trial judge of the law to be applied.

¶ 37. By failing to instruct on the elements of larceny, the trial judge left the jurors to assign their own meaning to that word. This eliminated their ability to determine whether the defendant intended to commit that crime beyond a reasonable doubt. And this failure was not remedied because the trial judge instructed that the jury might infer an intent to steal from the act of breaking and entering. The intent to steal, standing alone, is not larceny. One must intend to permanently deprive the other of his or her property. And, even if stealing and larceny were synonymous, the trial judge never instructed the jury to find the intent to steal beyond a reasonable doubt, nor did he explain that he intended the instruction on the intent to steal to define or explain the meaning of larceny. He merely instructed the jury that the intent to steal might be inferred from the circumstances of breaking and entering.

¶ 38. The instructions left the jury to speculate as to the meaning of a legal term, eviscerating the jury’s ability to consider Conner’s guilt. Accordingly, I would reverse Conner’s conviction for burglary of a dwelling and remand for a new trial on that charge.

KITCHENS AND KING, JJ., JOIN THIS OPINION IN PART.

KITCHENS, Justice,

concurring in part and dissenting in part.

¶ 39. There can be no doubt that prosecutions under Mississippi’s habitual-offender statutes must occur in bifurcated trials. Seely v. State, 451 So.2d 213, 214 (Miss.1984). At the sentencing trial, “the circuit judge is to serve as the finder of fact in determining whether the habitual offender part of the indictment is established by the requisite degree of prooff,]” that is, beyond a reasonable doubt. Id. at 215. After reviewing the transcript of the pretrial hearing on the motion to amend the indictment as well as the sentencing hearing, I am convinced that the State failed to prove the allegations of habitual-offender status in Conner’s indictment beyond a reasonable doubt, and Conner was denied his right to confront a witness against him in the process. Because the State failed in its proof, and Conner’s constitutional right to confrontation was violated, I must respectfully dissent in part. I would vacate his sentences and remand for resentencing as a nonhabitual offender. I also join the part of Justice Dickinson’s opinion arguing for the reversal of Conner’s burglary conviction. With the majority, the only point upon which we agree is that Conner’s conviction of felony fleeing should be affirmed.

¶40. Conner’s amended indictment alleges that he has five prior convictions: two for robbery with a deadly weapon, and three for robbery. The indictment alleges that he was sentenced to and served more than one year on each of those prior charges. The motion to amend the indictment was accompanied by pen packs from the State of Tennessee Department of Corrections and an affidavit from Candace Whisman, a corrections official, outlining her interpretation of Conner’s sentences and prison time. The trial court amended the indictment based upon the State’s representation that, at sentencing, it would be able to prove beyond a reasonable doubt that Conner had served more than a year on two prior convictions, at least one of which was a violent crime. In other words, the trial court’s acceptance of the pen packs and affidavit for the purpose of amending the indictment opened the door for the State to undertake the task of proving Conner’s habitual-offender status. By no means did the trial court’s ruling mean that the State also had crossed the threshold of reasonable doubt necessary for it to sentence Conner as an habitual offender.

¶ 41. Both at the pretrial hearing and at sentencing, Conner objected to the admission of the pen pack and explanatory affidavit because it violated his right to confront the witnesses against him. Additionally, at the sentencing hearing, he argued that the State had failed to meet its burden of proof in showing that he should be sentenced as an habitual offender. Because I find that the issues are interrelated, I will address them together.

¶ 42. It is undisputed that Conner has an extensive criminal history. At the age of forty-nine, he has amassed an impressive rap sheet. However, the scope and depth of Conner’s criminal past in no wise relieves the State of proving beyond a reasonable doubt, in a separate trial, that Conner has twice been convicted of crimes for which he was sentenced to and served more than one year, one of those being a violent crime. Miss.Code Ann. § 99-19-83 (Rev.2007). The prosecution set out to make such proof by means of the extensive pen-pack records outlining Conner’s criminal history, as well as Whisman’s accompanying affidavit providing her interpretation of those records’ meaning. The State attempted to place the pen packs and affidavit into evidence by asking the court to incorporate them into the record through reference to the pretrial hearing on the motion to amend the indictment. At that point, the trial court determined that the State had met its burden, and that Conner should be sentenced as an habitual offender.

¶ 43. After reviewing the transcript of the sentencing hearing, I cannot see how the trial court was able to determine beyond a reasonable doubt that Conner was an habitual offender under Section 99-19-83 based upon the pen pack itself. The pen pack covers multiple felony convictions, misdemeanor convictions, and parole releases and revocations over a twenty-year period. It is extensive. In the record on appeal, it is not in chronological order. After studying the pen pack, it is not clear to me how much time Conner served for a number of the felonies for which he was convicted. The only way to reach a conclusion as quickly as the trial court did, without an extensive knowledge of the Tennessee Department of Corrections’s administrative regulations, would be to rely totally upon the affidavit provided by Whisman.

¶ 44. When the court asked Conner whether he objected to incorporating the pen pack and affidavit into evidence, he argued that the documents were inadmissible hearsay and that they violated his right to confront the witnesses against him. The judge overruled those objections. He then conducted a brief examination of Conner’s prior convictions and sentences.

Court: First and foremost, I’ll note that the documents before the Court do establish Mr. Conner as a Section 99-19-83 habitual offender and he will be sentenced as such.
I’m looking at Mr. Conner. Here’s a conviction for a robbery with a deadly weapon, appears to be a second conviction, appears to be contemporaneously, but a second conviction for robbery with a deadly weapon. The third, apparently contemporaneous, robbery conviction. Appears to be a repeat of that same conviction, the next one. And another non-contemporaneous later in time, robbery conviction.

¶ 45. At no point did the court specifically find that Conner had served a year or more on any of those listed prior convictions, nor did it indicate which prior convictions alleged in the indictment specifically were being used to enhance Conner’s sentence or for which ones the State had met its burden of proof. It is obvious to me, after having reviewed the extensive pen packs, that the only way to make real sense out of Conner’s conviction and sentencing history is through the affidavit from Whisman. This constituted the real proof against Conner in adjudicating him an habitual offender. Her absence from Conner’s sentencing hearing deprived him of the fundamental right to confront the witnesses against him, and his sentence as an habitual offender should be reversed.

¶ 46. “[T]he admission of a testimonial statement of a witness who does not appear at trial is barred, unless that witness is unavailable, and the defendant has had a prior opportunity for cross-examination.” Corbin v. State, 74 So.3d 333, 338 (¶ 13) (Miss.2011) (emphasis added). “[A] statement is testimonial when it is given to the police or individuals working in connection with the police for the purpose of prosecuting the accused.” Hobgood v. State, 926 So.2d 847, 852 (¶ 11) (Miss.2006). The United States Supreme Court has stated that testimonial statements can be “ex parte in-court testimony ... material such as affidavits, ... [or] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Crawford v. Washington, 541 U.S. 36, 51-52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (emphasis added) (internal quotations omitted). Whisman’s affidavit, explaining the complicated and extensive pen pack detailing Conner’s sentencing history, was unequivocally testimonial. It explained the meaning of the attached pen-pack documents and was used to remove any doubt as to Conner’s prior sentences and their length. Whether Whisman’s interpretation of the pen-pack materials is right or wrong, it is, nevertheless her interpretation. Conner had a state and federal constitutional right to cross examine her. See U.S. Const. amend. VI; Miss. Const, art. 3, § 26.

¶ 47. The State had a burden to prove its case at the sentencing hearing. It provided the certified pen-pack documents, which the majority correctly recognized as competent evidence. See Taylor v. State, 122 So.3d 707, 709, 711 (¶ 11) (Miss.2013). However, as clearly recognized by the State, the documents are difficult to interpret without the knowledge of someone well versed in the administrative procedures of the Tennessee Department of Corrections. Whisman interpreted the documents in the pen pack and stated her conclusions regarding Conner’s prior convictions and sentences. It was incumbent upon the State to produce Whisman as a witness to ensure that she could explain her reasoning for her conclusions, and it was incumbent upon the State to provide Conner the opportunity to cross-examine her and challenge the validity of her conclusions. At the sentencing hearing, the State argued that Conner should have subpoenaed Whisman if he wished to cross-examine her. This is incorrect. The burden is on the State to prove the defendant qualifies for habitual-offender status; it is not on the defendant to prove that he does not. Whisman was necessary to prove the State’s case, and the State had the burden to ensure her appearance at the sentencing hearing. Whisman’s affidavit was the State’s strongest and clearest proof that Conner was an habitual offender beyond a reasonable doubt. Such a testimonial statement is barred from admission into evidence when its author does not appear at trial. Corbin, 74 So.3d at 338. As Whisman did not appear at trial, her affidavit should have been denied admission into evidence. The trial court’s failure to do so was reversible error.

¶48. As for the majority’s contention that this Court has never held that confrontation rights exist at sentencing, I must disagree. This Court unequivocally has held that those rights exist at the sentencing stage of a bifurcated trial.

A jury is to decide the question of guilt and subsequently the circuit judge is to serve as the finder of fact in determining whether the habitual offender part of the indictment is established by the requisite degree of proof. The state has the same burden of proof as to the habitual offender portion of the indictment as it has on the principal charge. The defendant also has the same rights at both stages of trial.

Seely, 451 So.2d at 215 (Miss.1984) (emphasis. added). Clearly, in a proceeding against an alleged habitual offender in Mississippi, the accused’s right to confront the witnesses against him exists at the guilt phase of his bifurcated trial, and that same right exists at sentencing.

¶ 49. This Court long ago recognized that, in cases in which the State seeks to punish a defendant as an habitual offender, “[tjhere appears to be some tendency to routinely allow the state to produce some documentation of prior offenses and for the trial court to perfunctorily find the defendant an habitual offender....” Id. The Court recognized that the only way to adjudicate habitual-offender status was to hold “a full two-phase trial prior to any finding that a defendant is an habitual offender and subject to enhanced punishment.” Id. Here, the trial court perfunctorily examined an extensive and confusing record of Conner’s criminal history and relied on an inadmissible, testimonial affidavit to conclude that Conner qualified for habitual-offender status. Conner’s right to confrontation was violated, and he was summarily adjudicated an habitual offender in a hearing resembling a trial in only the loosest terms, as far as its recognition of the rules of evidence and the constitutional rights of a criminal defendant are concerned. Without Whisman’s affidavit in evidence, the State did not remove all reasonable doubt from its allegations that Conner was an habitual offender. Accordingly, I would hold that Conner’s sentence as an habitual offender should be reversed, and his case should be remanded for re-sentencing as a nonhabitual offender.

KING, J„ JOINS THIS OPINION.

      . Ballenger v. State, 667 So.2d 1242, 1252 (Miss.1995).

      . Flora v. State, 925 So.2d 797, 811 (Miss.2006) (quoting Williams v. State, 794 So.2d 181, 187 (Miss.2001), overruled on other grounds by Brown v. State, 995 So.2d 698 (Miss.2008), (citing Gray v. State, 549 So.2d 1316, 1321 (Miss.1989)); Bolton v. State, 113 So.3d 542, 544 (Miss.2013) (quoting Rogers v. State, 95 So.3d 623, 632 (Miss.2012)).

      . Miss.Code Ann. § 97-17-23(1) (Rev.2006).

      . Lambert v. State, 462 So.2d 308, 311 (Miss.1984) (citing Newburn v. State, 205 So.2d 260 (Miss.1967); State v. Buchanan, 75 Miss. 349, 22 So.875 (1898)).

      . Daniels v. State, 107 So.3d 961, 964 (Miss. 2013).

      . Mapp v. State, 248 Miss. 898, 904, 162 So.2d 642, 645 (1964) (quoting 52 C.J.S. Larceny § 1, p. 779; Jackson v. State, 211 Miss. 828, 52 So.2d 914 (Miss.1951)).

      . Mississippi Code Section 99-19-83 requires proof of only two prior convictions for which the defendant was sentenced to and served more than one year. However, the State apparently wanted to make it abundantly clear that Conner had five prior convictions that could meet the standard for a life sentence as an habitual offender. See Miss.Code Ann. § 99-19-83 (Rev.2007).

      . The State could have greatly eased its requirement of proof by charging Conner under Section 99-19-81. That section requires that the State show only that Conner was sentenced to a year on two separate crimes. For such proof, just the judgment of conviction and sentence would have been enough. At Conner's age, he likely would have served out the remainder of his life under that sentence. See Miss.Code Ann. § 99-19-81 (Rev.2007).

      . Conner did not raise the confrontation clause issue on appeal. However, he did object on that basis at the sentencing trial. "Under the doctrine of plain error, we can recognize obvious error which was not properly raised by the defendant on appeal, and which affects a defendant’s fundamental, substantive right.” Corbin v. State, 74 So.3d 333, 337 (¶ 11) (Miss.2011) (quoting Smith v. State, 986 So.2d 290, 294 (Miss.2008) (internal quotations omitted)).