author: RANDOLPH, Presiding Justice,

text:
    COMMONWEALTH BRANDS, INC., The Corr-Williams Company, and Vicksburg Specialty Company v. J. Ed MORGAN, Commissioner of Revenue of the Department of Revenue.
    No. 2011-CA-01274-SCT.
    Supreme Court of Mississippi.
    April 4, 2013.

      Luther T. Munford, Fred L. Banks, Jr., Robert Gregg Mayer, Robert J. Brookhiser, Elizabeth B. McCallum, Stephen J. Carmody, Louis G. Fuller, attorneys for appellants.
    Gary Wood Stringer, Bridgett Thomas, attorneys for appellee.
    Before DICKINSON and RANDOLPH, P.JJ., and PIERCE, J.
   RANDOLPH, Presiding Justice,

for the Court:

¶ 1. Appellants raise a constitutional challenge to a fee legislated on cigarettes distributed through Mississippi for sale outside the state, claiming separate violations of the Commerce and Due-Process Clauses. In 2009, the Mississippi Legislature passed a law imposing a fee on the sale, purchase, and distribution in Mississippi of cigarettes manufactured by companies that did not enter into settlement agreements with the State of Mississippi as a result of a 1997 lawsuit (the “nonset-tling manufacturer” or “NSM” law), “including cigarettes sold, purchased or otherwise distributed in this state for sale outside of this state.” Miss.Code Ann. § 27-70-5 (Rev.2010) (amended in 2010) (emphasis added).

¶ 2. In 2009, one nonsettling manufacturer — Commonwealth Brands, Inc. (“Commonwealth”) — and one distributor — the Corr-Williams Company (“Corr-Williams”) (collectively “Appellants”)— sued Ed Morgan, in his capacity as Commissioner of Revenue of the Department of Revenue (“Commissioner”) in Hinds County Chancery Court. Appellants claimed that the imposition of the NSM fee on products sold, purchased, or distributed in Mississippi, but ultimately sold to consumers or users outside Mississippi, violated the Commerce and Due-Process Clauses of the United States Constitution. They sought a declaration that the imposition of the NSM fee on cigarettes for sale outside Mississippi is unconstitutional; an injunction to prevent the State from collecting the fee from them for cigarettes distributed in Mississippi for sale outside the state; and damages, expenses, and attorney fees under 42 U.S.Code Sections 1983 and 1988.

¶ 3. In October 2009, the chancery court entered a temporary restraining order enjoining the Commissioner from assessing and collecting the challenged fee. In November 2009, the chancery court held an evidentiary hearing, after which it granted Appellants a preliminary injunction and ordered them to post surety bonds. The chancery court found as follows:

(A) There is a substantial likelihood that Plaintiffs will prevail on their constitutional challenges to the assessment and payment of fees on the sale of NSM cigarettes sold, purchased or otherwise distributed in Mississippi for sale outside of Mississippi ...;
(B) Corr-Williams and Commonwealth Brands will suffer immediate and irreparable harm with such threat being imminent if the MSTC assesses and demands payment of fees on the sale of [such] cigarettes ... in that Corr-Williams may lose its ability to distribute NSM cigarettes and other grocery products in the State of Louisiana, with an accompanying loss in competitive advantage, business reputation, and goodwill and that Commonwealth Brands also faces the threat of immediate loss of competitive advantage, market share, business reputation, and good will with respect to cigarettes sold, purchased or otherwise distributed in this state for sale outside of this state.
(C) The threat of irreparable injury to Corr-Williams and Commonwealth Brands far outweighs any potential harm to the State ..., even considering the present economic conditions of the State of Mississippi and the potential implications of ... reduced revenues that this [preliminary injunction] might have on the State budget, and moreover, ... the threat of injury to the Defendant is minimal in that if the MSTC ultimately prevails, it will be able to assess and collect the tax that accrues during the pendency of this litigation; and
(D) The public interest is served by the entry of the [preliminary injunction] because if the MSTC assesses and demands payment of fees on the sale of NSM cigarettes sold, purchased or otherwise distributed in Mississippi for sale outside of Mississippi ... from Commonwealth Brands or by Corr-Williams, there may be a resulting loss of jobs and tax revenue when Corr-Williams and distributors in situations similar to Corr-Williams move all or some of its operations to the State of Louisiana and other states to avoid the effect thereof, or when Commonwealth and manufacturers in situations similar to Commonwealth shift some or all of their business to distributors in other states to avoid the effect thereof.

In January 2010, the chancery court allowed Vicksburg Specialty to intervene, entered a preliminary injunction enjoining the Commissioner from imposing the NSM fee on NSM cigarettes distributed by Vicksburg Specialty, and required Vicksburg Specialty to post a surety bond.

¶ 4. In May 2010, the chancery court issued a “Stipulated Order Regarding Schedule and Procedures,” in which the parties agreed, in lieu of trial, to submit proposed stipulations of facts and proposed findings of fact and conclusions of law to the chancellor. In August 2010, the chancery court issued an order denying Appellants a permanent injunction and declaratory relief, and finding all other issues moot. The chancery court found that the NSM fee did not violate the Commerce Clause or the Due-Process Clause, based on its findings that: (1) there was “a substantial nexus between the tax and the transaction within Mississippi”; (2) the fee was fairly apportioned, because, even if other states had an identical statute, those states would not tax Commonwealth for the “same purpose” — distribution through Mississippi; (3) the fee did not discriminate against interstate commerce, because, (like its reasoning for finding fair apportionment) even if other states had an identical statute, they would not impose a fee on the same transaction as the Mississippi law — distribution through Mississippi; and (4) the fee was fairly related to distribution activities and services in Mississippi.

¶ 5. Subsequently, the Commissioner filed a “Motion for Entry of Final Judgment,” seeking fees, interest, and penalties from Appellants for the two years that it was enjoined from collecting fees under the preliminary injunction, and Appellants filed a motion for reconsideration. The chancery court held a hearing on both motions in December 2010. The chancery court reserved ruling on the motions until the end of the 2011 Mississippi Legislative Session, during which the Legislature amended the statute to provide that the NSM fee does not apply to cigarettes sold, purchased, or distributed in Mississippi for sale outside the state. Miss.Code Ann. § 27-70-5 (Supp.2012).

¶ 6. In May 2011, the chancery court found that the legislative amendment did not apply retroactively, denied Appellants’ motion for reconsideration, and granted the Commissioner’s motion for final judgment. However, the chancery court did not enter final judgment at that time. Rather, three months later, on August 30, 2011 (upon the parties’ request for a status conference), the chancellor entered final judgment, which incorporated the August 2010 order (denying Appellants’ request for a permanent injunction and declaratory relief) and the May 2011 order (denying motion for rehearing and granting motion for final judgment). Commonwealth, Corr-Williams, and Vicksburg Specialty appeal the final judgment, and the Commissioner cross-appeals.

FACTS

¶7. Mississippi has long imposed and collected taxes on the sale of tobacco within the state under the Tobacco Tax Act. The Tobacco Tax Act provides that:

The ... tax is levied upon the sale, use, gift, possession or consumption of tobacco within the State of Mississippi, and the impact of the tax levied by this chapter is hereby declared to be on the vendee, user, consumer or possessor of tobacco in this state; and when said tax is paid by any other person, such payment shall be considered as an advance payment and shall thereafter be added to the price of the tobacco and recovered from the ultimate consumer or user.

Miss.Code Ann. § 27-69-13 (Rev.2010) (emphasis added). The Tobacco Tax Act also specifies that “[t]he provisions of this chapter shall not apply to dealers in tobacco made the subject of interstate sales, except as provided in Chapter 70, Title 27, Mississippi Code of 1972.” Miss.Code Ann. § 27-69-19 (Rev.2010).

¶8. In 1997, the State of Mississippi entered into a settlement agreement with the four largest U.S. cigarette manufacturers. The settling manufacturers agreed to pay the State certain sums, to be adjusted by domestic tobacco product volume sales.

¶ 9. In 1998, forty-six other states and territories entered into a separate settlement agreement with the same four cigarette manufacturers that were parties to the 1997 Mississippi agreement (“Master Settlement Agreement” or “MSA”). Under the Master Settlement Agreement, as under the 1997 agreement, the manufacturers agreed to pay certain sums to the settling states and territories. Id. The MSA based these sums on national tobacco sales, net of, inter alia, amounts paid to Mississippi under the 1997 agreement. Id. Manufacturers other than the four originally sued were permitted to join the MSA voluntarily. Id. Commonwealth elected to do so.

¶ 10. In 2009, the Mississippi Legislature enacted the NSM law, imposing on manufacturers that were not parties to the 1997 agreement a fee for sales, purchases, and distribution of tobacco products in Mississippi. Miss.Code Ann. §§ 27-70-1 to 27-70-23 (Rev.2010). The stated purpose of the NSM law was to:

(a) Prevent nonsettling manufacturers from undermining this state’s policy of discouraging underage smoking by offering cigarettes at prices that are substantially below the prices of cigarettes of other manufacturers;
(b) Protect the tobacco settlement agreement, and funding, which has been reduced because of the growth of sales of nonsettling-manufacturer cigarettes, for programs that are funded wholly or partly by payments to this state under the tobacco settlement agreement and recoup for this state settlement payment revenue lost because of sales of nonset-tling-manufacturer cigarettes;
(c) Provide funding to enforce and administer this chapter and any legislation relating to nonsettling manufacturers; and
(d) Provide funding for any other purpose the Legislature determines.

Miss.Code Ann. § 27-70-1 (Rev.2010). The statute imposed a fee as follows:

(1)A fee is imposed on the sale, use, consumption or distribution in this state of:
(a) Nonsettling-manufacturer cigarettes if a stamp is required to be affixed to a package of those cigarettes under the Tobacco Tax Law; and
(b) Nonsettling-manufacturer cigarettes that are sold, purchased or distributed in this state but that are not required to have a stamp affixed to a package of those cigarettes under the Tobacco Tax Law, including cigarettes sold, purchased or othenvise distributed in this state for sale outside of this state.
(2) The fee imposed by this chapter does not apply to cigarettes that are included in computing payments due to be made by a settling manufacturer under the tobacco settlement agreement.
(3) The fee imposed by this chapter is in addition to any other privilege, license, fee or tax required or imposed by state law.
(4) Except as otherwise provided by this chapter, the fee imposed by this .chapter is imposed, collected, paid, administered, and enforced in the same manner, taking into account that the fee is imposed on nonsettling manufacturers, as the taxes imposed by the Tobacco Tax Law, as appropriate.

Miss.Code Ann. § 27-70-5 (Rev.2010) (emphasis added).

¶ 11. In 2011, during the pendency of this litigation, the Mississippi Legislature amended the NSM law. Miss.Code Ann. § 27-70-5 (Supp.2012). Those amendments included the removal of the language explicitly imposing the NSM fee on cigarettes for sale outside of the state (Section 27-70-5(l)(b) of the 2009 law), and the addition of the following language: “[t]he tax imposed by this chapter does not apply to cigarettes that are sold, purchased or otherwise distributed in this state for sale outside of this state.” Id.; Miss.Code Ann. § 27-70-5(2) (Supp.2012) (emphasis added).

ISSUES

¶ 12. All Appellants raise the following three issues on appeal:

1. Whether a law imposing a fee on certain cigarette manufacturers for the in-state sale, purchase, or distribution of cigarettes for retail sale outside of the state violated the Commerce Clause.
2. Whether the fee on the in-state sale, purchase, or distribution of cigarettes to be sold out of state was an impermissible exercise of extra-territorial jurisdiction that violated the Due-Process Clause.
3. Whether Commonwealth, Corr-Williams, and Vicksburg Specialty are entitled to relief under 42 U.S.C. § 1983 and attorney fees under 42 U.S.C. § 1988, because state law provides them no plain, speedy, and efficient remedy. ¶ 13. Appellants Corr-Williams and

Vicksburg Specialty raise a fourth issue:

4. Whether the final judgment of the chancery court is invalid to the extent that it allows the State to seek unpaid NSM fees, interest, and penalties from Corr-Williams and Vicksburg Specialty.

¶ 14. On cross-appeal, the Commissioner raises the following issue:

5. Whether the chancellor erred by failing to include in the final judgment a monetary judgment in favor of the State against Commonwealth, Corr-Williams, and Vicksburg Specialty in the amount of the fees and interest the State was enjoined from collecting due to the temporary restraining order and preliminary injunctions, plus ten percent under Mississippi Code Section 11-13-15.

¶ 15. Finding the first and third issues dispositive, we decline to address issue two. Our disposition moots issues four and five.

DISCUSSION

I. Standard of Review

¶ 16. This Court applies a de novo standard of review when addressing a statute’s constitutionality. Johnson v. Sysco Food Servs., 86 So.3d 242, 243 (Miss.2012) (citations omitted).

II. Commerce Clause

¶ 17. To comply with the Commerce Clause, a tax must: (1) be imposed on an activity with a substantial nexus with the taxing state; (2) be fairly apportioned, based on the activity within the taxing state; (3) not discriminate against interstate commerce; and (4) be fairly related to services provided by the taxing state. Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977). This Court and the United States Supreme Court have recognized that, to satisfy these basic Commerce-Clause requirements, a tax also must be “internally consistent.” See, e.g., Thomas Truck Lease, Inc. v. Lee County, 768 So.2d 870, 876 (Miss.1999); Okla. Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175, 185, 115 S.Ct. 1331, 131 L.Ed.2d 261 (1995); Tenn. Gas Pipeline Co. v. Marx, 594 So.2d 615, 618 (Miss.1992). The U.S. Supreme Court has provided that “internal consistency is preserved when the imposition of a tax identical to the one in question by every other State would add no burden to interstate commerce that intrastate commerce would not also bear.” Jefferson Lines, 514 U.S. at 185, 115 S.Ct. 1831 (emphasis added). Phrased slightly differently, we have explained that, “[t]o be internally consistent, a tax must be structured so that if every State were to impose an identical tax, no multiple taxation would result.” Thomas Truck Lease, 768 So.2d at 876 (emphasis added). Thus, internal consistency broadly asks whether, if all states enacted an identical statute, interstate commerce would bear a burden that purely intrastate commerce would not, such as multiple taxation. Id.; Jefferson Lines, 514 U.S. at 185, 115 S.Ct. 1381.

¶ 18. The U.S. Supreme Court has further explained that:

[the internal-consistency] test asks nothing about the degree of economic reality reflected by the tax, but simply looks to the structure of the tax at issue to see whether its identical application by every State in the Union would place interstate commerce at a disadvantage as compared with commerce intrastate. A failure of internal consistency shows as a matter of law that a State is attempting to take more than its fair share of taxes from the interstate transaction, since allowing such a tax in one State would place interstate commerce at the mercy of those remaining States that might impose an identical tax.

Jefferson Lines, 514 U.S. at 185, 115 S.Ct. 1331.

¶ 19. The chancellor analyzed compliance with the Commerce-Clause requirements set forth in Complete Auto Transit, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326, and concluded that the NSM law did not violate the Commerce Clause. However, the chancellor erred, as a matter of law, by failing to apply the internal-consistency test mandated by Jefferson Lines, 514 U.S. at 185, 115 S.Ct. 1331, and Thomas Truck Lease, 768 So.2d at 876.

¶ 20. We find that the NSM law, as enacted by the Legislature and acted upon by the Commissioner, failed to satisfy the internal-consistency test as a matter of law. For the NSM fee to be internally consistent, interstate commerce must not bear a burden that intrastate commerce does not (such as multiple taxation) if other states were to adopt statutes identical to the NSM law, including the following provision:

A fee is imposed on the sale, use, consumption or distribution in this state of [n] onsettling-manufacturer cigarettes that are sold, purchased or distributed in this state but that are not required to have a stamp affixed to a package of those cigarettes under the Tobacco Tax Law, including cigarettes sold, purchased or otherwise distributed in this state for sale outside of this state.

Miss.Code Ann. § 27-70-5(l)(b) (Rev. 2010). The distribution of cigarettes in Mississippi for ultimate sale outside the state involves separate transactions: (1) the Mississippi distributor’s acquisition of products from Commonwealth and (2) the sale of those products in another state— say, Louisiana. If Louisiana enacted a statute identical to the Mississippi NSM law, then Mississippi would impose a fee on transaction (1) and Louisiana would impose a fee on transaction (2). Thus, if another state adopted a law identical to the NSM law, two fees would be imposed on the same cigarettes. Stated simply, this interstate application involves two fees on the same cigarettes. In contrast, if the cigarettes acquired by the Mississippi distributor were sold intrastate, they would be subject to only one fee — under the Mississippi NSM law. Although each state would impose its fee on a separate transaction, cigarettes sold in interstate commerce would bear a second fee that those sold in intrastate commerce would not. Thus, if another state enacted a statute identical to the challenged NSM law, interstate commerce would bear a burden that purely intrastate commerce would not also bear: multiple fees on the same cigarettes. We conclude that the provision of the NSM law imposing a fee on NSM cigarettes distributed through Mississippi for sale outside the state was not internally consistent, in violation of the Commerce Clause. Accordingly, Appellants were entitled to the requested permanent injunction and declaratory relief.

III. 42 U.S.C. Section 1983 Claims

¶21. Appellants claim that they are entitled to attorney fees under 42 U.S.C. Section 1988 for their claims under Section 1983 challenging the constitutionality of the NSM law. Section 1983 reads as follows, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

42 U.S.C.A. § 1983.

¶ 22. At issue in the case sub judi-ce is whether the federal Tax Injunction Act precludes a Section 1983 claim in state court to challenge the constitutionality of a state tax where an adequate state-law remedy is available. The Tax Injunction Act provides that:

The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.

28 U.S.C.A. § 1341 (1940). The language of Section 1341 prevents federal district courts from granting injunctive relief regarding state tax matters where state law provides a plain, speedy, and efficient remedy. In National Private Truck Council, Inc. v. Oklahoma Tax Commission, 515 U.S. 582, 115 S.Ct. 2351, 132 L.Ed.2d 509 (1995), the United States Supreme Court “granted certiorari to resolve a conflict among the state courts as to whether, in tax cases, state courts must provide relief under § 1983 when adequate remedies exist under state law.” Nat’l Private Truck, 515 U.S. at 585-86, 115 S.Ct. 2351 (emphasis added).

¶ 23. Our review of the cases reveals a conflict not only among the states, but also within our own jurisprudence. In State Tax Commission v. Fondren, 387 So.2d 712 (Miss.1980), a taxpayer sought to enjoin the Commission from approving county recapitulation of assessment rolls until the Commission had equalized assessments among counties. Fondren, 387 So.2d 712. The Fondren Court found that “a state court entertaining a 1983 action has no more jurisdiction than a federal district court” and that “[i]t is well established that [Section 1341] is an explicit congressional limitation on the jurisdiction of the federal courts in [state tax] cases....” Id. at 723. The Court then found that, in the state-tax action before it:

[Section] 1983 collides full force with a specific congressional limitation on federal jurisdiction. In such circumstances, we are convinced that [Section] 1341 must prevail.

Id. The Fondren Court cited the holding in Bland v. McHann, 463 F.2d 21 (5th Cir. 1972), that “Mississippi law provides a plain, speedy and efficient remedy for claims that assessments for taxes in a municipality were not equal and uniform[,]” and reasoned that:

[o]bviously this action could not have been brought in federal court under section 1983 because there is a plain, speedy and efficient remedy in Mississippi courts. Complainants, by filing their action in state court, invoked the plain, speedy and efficient remedy granted them by the chancery court and affirmed here.

Id. The Fondren Court presciently concluded that “the section 1983 cause of action must fail in the state court because it would have failed if it had, been filed first in federal court.” Id. (emphasis added).

¶ 24. Seven years later, in Marx v. Truck Renting and Leasing Association Inc., 520 So.2d 1333 (Miss.1987), this Court applied a contradictory analysis of federal and state courts’ jurisdiction over Section 1983 challenges of state taxes. The Marx Court first recognized that “[t]he courts of this State have jurisdiction concurrent with that of the federal courts over actions brought under 42 U.S.C. § 1983.” Marx, 520 So.2d at 1346 (citations omitted). However, the Marx Court posited its jurisdictional holding on the antithesis of concurrent jurisdiction, declaring that:

it is the absence of federal jurisdiction under 28 U.S.C. § 1341 which operates to open the door to the state courthouse so that the taxpayer may here assert his § 1983 claim. A federal courthouse door is closed under such circumstances by 28 U.S.C. § 1341.

Id. Thus, this Court held in Marx that state courts’ jurisdiction over actions challenging the constitutionality of state taxes under Section 1983 is available because the federal courthouse door is closed,

¶ 25. A year after Marx, this Court decided Burrell v. Mississippi State Tax Commission, 536 So.2d 848, 864 (Miss.1988). The Burrell Court interpreted the holdings of Fondren and Marx as follows:

[Fondren] says that the state courts have no authority to entertain claims under Section 1983 where the suit is one seeking to enjoin unconstitutional state action with regard to the collection of taxes. Fondren confuses a federal jurisdictional limitation, 28 U.S.C. § 1341, with the enforceability of a federally created right and remedy in state court.... [0]ur recent decision in [Marx] may only be read as holding that the Section 1983/1988 discussion in Fondren stands overruled.

Burrell, 536 So.2d at 864.

¶ 26. Subsequently, courts in other states addressing the same issue revealed that Mississippi was one of only two states to hold that a Section 1983 action could be brought in state court despite the availability of a state-law remedy. Tatten Partners v. New Castle County Bd. of Assessment Review, 642 A.2d 1251, 1265 (Del.Super.1993); Greenwich Twp. v. Murtagh, 601 A.2d 1352, 1356 at n. 10 (Pa.1992). The other state, New Jersey, also had found that Section 1983 actions challenging state taxes — including actions that could not be brought in federal court under the Tax Injunction Act — could be brought in state court. Bung’s Bar & Grille, Inc. v. Florence Twp., 206 N.J.Super. 432, 502 A.2d 1198, 1215 (1985). However, after the U.S. Supreme Court issued its opinion in National Private Truck, discussed infra, the New Jersey court rejected its prior approach, holding that “both state and federal courts ‘must refrain from granting federal relief under § 1983 when there is an adequate legal remedy.’ ” General Motors Corp. v. City of Linden, 143 N.J. 336, 671 A.2d 560, 564-65 (1996) (quoting Nat’l Private Truck, 515 U.S. at 592, 115 S.Ct. 2351). We do the same today.

¶ 27. In 1995, the U.S. Supreme Court issued a definitive statement on this issue. The ruling is clear and unequivocal (repeatedly declared), and relies on the same principles used by this Court in Fondren. Nat’l Private Truck, 515 U.S. at 590-92, 115 S.Ct. 2351; see Fondren, 387 So.2d at 723 (relying on concurrent jurisdiction to find that Section 1983 state-tax action must fail in state court, because it would have failed in federal court due to the availability of a plain, speedy, and efficient remedy in state court). In National Private Truck, the Court held that Section 1341 restrains both federal and state court jurisdiction over Section 1983 challenges of state taxes — thus validating the Fondren Court’s approach and rejecting Marx and Burrell. Nat’l Private Truck, 515 U.S. at 590-92 115 S.Ct. 2351. The National Private Truck Court first stated as follows:

To be sure, the Tax Injunction Act reflects the congressional concern with federal court interference with state taxation, see 28 U.S.C. § 1341, and there is no similar statute divesting state courts of the authority to enter an injunction under federal law when an adequate legal remedy exists. But this silence is irrelevant here, because we do not understand § 1983 to call for courts (whether federal or state) to enjoin the collection of state taxes when an adequate remedy is available under state law. Given the strong background presumption against interference with state taxation, the Tax Injunction Act may be best understood as but a partial codification of the federal reluctance to interfere with state taxation. After all, an injunction issued by a state court pursuant to § 1983 is just as disruptive as one entered by a federal court.

Id. at 590-91, 115 S.Ct. 2351 (emphasis added) (citation omitted). The Court reiterated that:

We simply do not read § 1983 to provide for injunctive or declaratory relief against a state tax, either in federal or state court, when an adequate legal remedy exists.

Id. at 591, 115 S.Ct. 2351. Again phrasing slightly differently, the Court held that:

When a litigant seeks declaratory or injunctive relief against a state tax pursuant to § 1983, ... state courts, like their federal counterparts, must refrain from granting federal relief under § 1983 when there is an adequate legal remedy.

Id. at 592, 115 S.Ct. 2351. Thus, the U.S. Supreme Court firmly established that the constitutionality of a state tax may not be challenged under Section 1983 in state court if an adequate remedy is available under state law — as stated in Fondren and overruled in Burrell. Fondren, 387 So.2d at 723; Marx, 520 So.2d at 1346; Burrell, 536 So.2d at 864. To the extent that Marx and Burrell conflict with the U.S. Supreme Court’s holding in National Private Truck, they are hereby overruled.

¶ 28. Was a plain, speedy, and efficient remedy under Mississippi law available to Appellants? To provide an adequate remedy, a state law must satisfy “minimal procedural criteria!;]” it must “provid[e] the [party] with a ‘full hearing and judicial determination’[to] raise any and all constitutional objections to the tax.” Rosewell v. LaSalle Nat’l Bank, 450 U.S. 503, 512-15 101 S.Ct. 1221, 1229-30, 67 L.Ed.2d 464 (1981) (emphasis in original).

¶ 29. We first turn to the record to answer the question. We find that all Appellants had an adequate remedy, which they invoked, seeking a plain, speedy, and efficient remedy: declaratory relief under Mississippi Rule of Civil Procedure 57. In their complaints, all Appellants sought “a declaration” that the NSM fee “discriminates against interstate commerce, unduly burdens interstate commerce, and denies due process of law.” Appellants’ “Motion for Expedited Declaratory and Injunctive Relief,” filed the same day as Commonwealth’s and Corr-Williams’s complaint, states that “[p]ursuant to Miss. R. Civ. P. 57 and 65, Plaintiffs ... request that the Court issue a declaration and a preliminary and/or permanent injunction ...” and requests, inter alia, that the trial court “[e]nter a judgment ... declaring unconstitutional the Mississippi NSM tax law insofar as it requires the assessment and collection of fees on nonsettling-manufac-turer cigarettes sold, purchased or otherwise distributed in the State of Mississippi for sale outside of Mississippi!.]” In their “Brief in Support of Motion for Expedited Declaratory and Injunctive Relief,” Appellants “move[d] ... for ... a declaration that ... [the] NSM fee ... is unconstitutional. ...” The brief further stated that: “As the Supreme Court also held in Marx, in an action under 42 U.S.C. § 1983 to vindicate constitutional rights, successful plaintiffs are also presumptively entitled to attorneys’ fees pursuant to 42 U.S.C. § 1988. Marx, supra, 520 So.2d at 1346.” Their reliance on Marx must fail for the reasons stated supra. There can be no serious debate that Rule 57 provided a plain, speedy, and efficient remedy, upon which Appellants relied. The record clearly establishes that Appellants premised their claim for attorney fees in conjunction with a claim for declaratory relief under Rule 57, and repeatedly referenced Rule 57 in their pleadings. Accordingly, we find that adequate remedies under state law were available to all Appellants. Thus, the courts of this State should refrain from considering Section 1983 claims in tax cases, mooting Section 1988 claims for fees. That being said, no basis exists for a claim by Appellants for attorney fees under Section 1988.

CONCLUSION

¶ 30. For the reasons discussed herein, we reverse the final judgment of the Hinds County Chancery Court. We remand this case to the Hinds County Chancery Court for entry of judgment consistent with this opinion.

¶ 31. ON DIRECT APPEAL: REVERSED AND REMANDED. ON CROSS-APPEAL: REVERSED AND REMANDED.

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

      . The parties and chancellor have used the terms "tax” and "fee” interchangeably throughout this litigation. For purposes of this opinion only, this Court does likewise. The issue of whether they are legally the same for purposes of this case is not before the Court. We are expressing no opinion in this regard. This opinion should not be cited for the proposition that this Court has declared that they are the same.

      . The Legislature has since amended the NSM law to remove the provision that applied the fee to cigarettes sold outside Mississippi. See infra, ¶ 11.

      . Master Settlement Agreement, available at http://web.archive.Org/web/2 0080625084126/http://www.naag.org/ backpages/naag/ tobacco/msa/msa-pdf/1109185724_1032468605_cigmsa.pdf (last visited Mar. 28, 2013).

      . The amounts Commonwealth must pay under the MSA are not net of any payments to Mississippi, as Commonwealth was not a party to the 1997 agreement. Master Settlement Agreement.

      . The U.S. Supreme Court has provided that a tax must be both internally and externally consistent. Okla. Tax Comm'n v. Jefferson Lines, Inc., 514 U.S. 175, 185, 115 S.Ct. 1331, 131 L.Ed.2d 261 (1995). However, a tax that does not satisfy the internal consistency test is unconstitutional, and there is no need to assess whether it is externally consistent. Id. (noting that the U.S. Supreme Court asks "whether the tax is ‘internally consistent’ and, if so, whether it is ‘externally consistent’ as well.”) (emphasis added).

      . The inverse also would be true: if NSM cigarettes were distributed through Louisiana for sale to retail customers in Mississippi, then Louisiana would impose a fee for the distribution under the Louisiana NSM law, and Mississippi would impose a fee for the sale under the Mississippi NSM law.

      . Section 1988 provides that:
      [i]n any action or proceeding to enforce a provision of section!] ... 1983 ... of this title, ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs....
      42 U.S.C.A. § 1988(b) (2000).

      . What Marx does not say is that the key to either courthouse door — federal or state — for a Section 1983 state-tax claim is controlled by the availability, vel non, of a plain, speedy, and efficient remedy in the- courts of the state — as previously held by this Court in Fon-dren, and subsequently made clear by the U.S. Supreme Court in National Private Truck. See infra at ¶ 27.

      . Commonwealth also had a remedy available under Mississippi Code Section 11-13-11, which provides that:
      The chancery court shall have jurisdiction of suits by one or more taxpayers in any county, city, town, or village, to restrain the collection of any taxes levied or attempted to be collected without authority of law. Miss.Code Ann. § 11-13-11 (Rev.2004). Section 11-13-11 clearly provides persons or entities upon whom a tax is levied or attempted to be collected a full hearing and judicial determination at which they may raise their constitutional challenges.


source: Caselaw Access Project

author: CHANDLER, Justice, KITCHENS, Justice,

license: Public Domain

text:
    Tomarcus Monte FULKS a/k/a Tomarcus Monte Faulks a/k/a Tomarcus Fulks a/k/a Tomarcus M. Fulks v. STATE of Mississippi.
    No. 2011-KA-00908-SCT.
    Supreme Court of Mississippi.
    April 11, 2013.

      Office of State Public Defender by W. Daniel Hinchcliff, Leslie S. Lee, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, -attorneys for appellee.
   CHANDLER, Justice,

for the Court:

¶ 1. This Court reversed the conviction and sentence in the first trial in this case on July 23, 2009, and remanded the case to the trial court, finding that the defendant, Tomarcus Monte Fulks, had been entitled to a continuance based on the State’s untimely disclosure of a key witness — Joshua Glenn. Fulks v. State, 18 So.3d 803 (Miss.2009). On May 27, 2011, a jury reconvict-ed Fulks of armed robbery and acquitted him of aggravated assault in Lowndes County Circuit Court. He received a sentence of thirty-five years in the custody of the Mississippi Department of Corrections (MDOC).

¶ 2. On appeal, Fulks raises the following issues: (1) whether the trial court erred in allowing the State to introduce Fulks’s prior testimony from his first trial; (2) whether the trial court erred in denying Fulks’s motion for recusal; (3) whether the trial court erred in allowing the prosecutor to inform the jury that coindictee Joshua Glenn had entered a plea of guilty to a charge of aiding and abetting after the fact; and (4) whether the trial court erred when it allowed prior testimony of State’s witness Sherry Franks, who was found to be “unavailable” for trial, into evidence. Finding no error, we affirm.

FACTS

¶ 3. Prior to the commencement of Fulks’s second trial, several pretrial matters were before the court. On November 12, 2010, the court held a hearing regarding Fulks’s motion for bond and request for discovery. The court ultimately denied Fulks’s request, stating that Fulks could access the first trial’s transcript for the State’s witness testimony.

¶4. On February 17, 2011, the State filed a motion to use the previous testimony of two witnesses from the first trial, Sherry Franks and Billy Joe Franks. The Frankses were in then* home asleep on the night of the break-in that occurred in July 2005. The State urged the court to allow the testimony of the Frankses to be admitted into evidence based on Mississippi Rule of Evidence 804, explaining that Billy Joe Franks was deceased and that Sherry Franks was unable to remember the events surrounding the incident due to her failing memory. In his earlier testimony, Billy Joe Franks had stated that a male held a chrome pistol to his head and that the male and a female with a towel around her head demanded money. He had stated that, although he could not identify the man, he was positive that a man had been holding a gun to his head. He had also stated that the female struck his arm with a baseball bat and broke his arm in two places. He fired one shot from his pistol as the intruders left his home. In her former testimony, Sherry Franks had testified that when she jumped out of bed, she was confronted by a young black male with a gun. She also stated that she saw a female wearing a white turban and holding a baseball bat.

¶5. On February 18, 2011, the State filed a motion for continuance, or, in the alternative, a motion for the introduction of Joshua Glenn’s earlier testimony. Fulks’s coindictee Joshua Glenn had testified at Fulks’s first trial and previously had entered a guilty plea to a charge of accessory after the fact. He was sentenced to a term of five years in the custody of the MDOC. At some point after his sentencing, Glenn’s probation was transferred to Texas. Claiming that Glenn was a necessary and material witness, the State requested that the court either grant a continuance or admit Glenn’s earlier testimony pursuant to Mississippi Rule of Evidence 804 (unavailability of witness). The State contended that, if Glenn were to testify, he would state that he and Fulks had ridden in a vehicle with several others to the Frankses’ home in the middle of the night, that all of the occupants of the vehicle had gotten out of the car and walked to the Frankses’ door, that one of the occupants had possessed a firearm, and that Fulks had kicked in the door to the Frankses’ home. Glenn also would have testified that he never had entered the home.

¶ 6. In April 2011, Fulks filed a motion for recusal of Judge James T. Kitchens Jr. Judge Kitchens had presided at the first trial and was set to preside at Fulks’s second trial. In this motion, Fulks asserted that, in light of Judge Kitchens’s comments from the 2009 bond hearing, he could not be fair or impartial if he presided over Fulks’s second trial. The motion contained excerpts from the 2009 bond-hearing transcript, which included the judge’s remarks on the reversal of the first trial.

¶ 7. The trial court ultimately denied the motion, explaining that the court’s remarks were not directed toward Fulks or his counsel. In its order, the court stated the following:

The Court was instead commenting on its concern that the appellate court might not have received the complete record of proceedings in the trial court since the main reason for the reversal and remand was the trial court’s failure to grant a continuance based on discovery issues though three continuances had already been granted and trial counsel had received full discovery.

¶ 8. The court dealt with the Frankses’ testimony and Glenn’s testimony at the preliminary hearing on May 23, 2011. With regard to the Frankses’ testimony, Dr. Adam Smith, Sherry Franks’s physician from Columbus, testified that Billy Joe Franks was in his eighties when he died. He also testified that Sherry Franks, then seventy-two, had suffered a stroke in February 2009, and had trouble with her memory and her ability to think rationally. Teresa Spencer, Sherry Franks’s daughter, also testified that her mother had memory loss, and that, in her opinion, her mother would not be able to handle the stress of a new trial. Fulks presented testimony from his investigator, Irvin Bradley, who stated that Sherry Franks was ambulatory and able to respond to questions. Fulks also argued that Billy Joe Franks’s testimony should be excluded, because his prior defense counsel did not have the opportunity to properly develop the cross-examination of Franks. The court found that both Billy Joe Franks and Sherry Franks were unavailable for purposes of Mississippi Rule of Evidence 804, and that they had been subject to thorough cross-examination, thereby ruling their testimony admissible for trial. See M.R.E. 804(b)(1).

¶ 9. The final phase of the hearing concerned Joshua Glenn’s statement from Fulks’s first trial and a second statement that he had made after the trial. The hearing revealed that the first written statement was taken in November 2006, and it was provided in discovery in February 2007. Carrie Jourdan, a public defender and the attorney for Fulks in his first trial, testified that the first trial was continued several times because Glenn had changed his statement during trial. The court ultimately admitted both of Glenn’s statements into evidence.

¶ 10. After the preliminary hearing, the court began voir dire of the jury. During voir dire, the State commented on how Glenn had pleaded guilty to accessory after the fact and had received a suspended sentence. No objection was made to the prosecutor’s remarks.

¶ 11. The trial commenced on May 24, 2011, with Billy Joe Franks’s doctor as the first witness. The State produced Glenn as a witness and introduced the former testimony of the Frankses into evidence. The State also introduced the former testimony of Fulks into evidence. All the former testimony was read to the jury from the first trial’s transcript.

¶ 12. Glenn explained to the jury that he was on probation after pleading guilty to accessory after the fact to the armed-robbery charge. Glenn stated that, in July 2005, Fulks was living with him on Ben Morgan Drive. On July 18, 2005, Glenn and Fulks went to Demetric Lowe’s apartment in Cypress Park in Glenn’s father’s car. At that time, Lowe was present and Glenn’s girlfriend was on her way. Glenn stated that a woman named Leah Lafayette called his phone and asked for Fulks. Some time later, Lafayette arrived in a black Altima with two other women— Katherine Williams and Allegra Young. Glenn and Fulks got into the car with the three women, and they dropped off Williams’s baby on their way to Young’s grandmother’s home. Glenn stated that Young was waving a gun in the air.

¶ 13. Glenn testified that they pulled up to the house and that everyone got out of the car. According to Glenn, Fulks kicked in the door. Glenn said that he froze when the others ran into the Frankses’ home, but then he ran into the woods. After he came out of the dark, congested, wooded area, he saw the three women with Fulks running from the side of the house. Lafayette apparently was carrying some sort of electrical device. Glenn drove them away from the crime scene, and Lafayette told him to pull over right after they left so that she could drive. The group then returned to Cypress Park Apartments. Glenn and Fulks went back to Glenn’s home.

¶ 14. Glenn stated that, the day following the robbery, he was afraid to tell law enforcement officials what had happened. He further explained that he had lied to police in his first statement because Fulks had told him to say that he and Fulks had remained in the car during the robbery. Glenn’s revised statement was taken in September 2006. In the revised statement, Glenn said that Fulks had accompanied the women into the Frankses’ home. On cross-examination, Fulks’s attorney thoroughly questioned Glenn on his two different versions of the facts in his separate statements. He further questioned Glenn about his reason for changing his story to state that he and Fulks had not remained in the car. In doing so, he addressed the fact that Glenn had changed his story after he was allowed to plead guilty to accessory after the fact and received five years’ probation.

¶ 15. The State then put on the prior trial testimony of Sherry Franks, with Kim Hood, an employee of the district attorney, reading the part of Sherry Franks from the first trial’s transcript. Jonathan Buckner, also an employee of the District Attorney, read the previous testimony of Billy Joe Franks.

¶ 16. The State then proceeded to admit the previous testimony of Fulks. The defense objected, claiming it was given no notice that Fulks’s testimony would be used in the second trial. Ultimately, the court ruled that the evidence was admissible. Fulks’s testimony revealed that, at the invitation of Glenn, he had accompanied Glenn and the three women to the Frankses’ home. He stated that the women had gone inside while he and Glenn had remained in the vehicle. Fulks claimed that he did not want to be a part of anything that was going on and that he and Glenn were dropped off at his girlfriend’s apartment. His earlier testimony also revealed that, on the evening after the incident, two detectives had questioned Glenn. Fulks stated that he had turned himself in at that time because, “if they’re looking for [Glenn], they’re going to be looking for me because we was in the car.”

¶ 17. At the close of the State’s case-in-chief, Fulks’s motion for mistrial was denied, as was his motion for a directed verdict. After being advised concerning his right to testify, Fulks chose not to testify. The defense presented two witnesses to refute Fulks’s charges. Ultimately, the jury found Fulks guilty on the charge of armed robbery and not guilty on the charge of aggravated assault. On June 15, 2011, Fulks filed his motion for judgment notwithstanding the verdict (JNOV) and a new trial. Judge Kitchens denied this motion on June 17, 2011. Fulks filed this appeal.

ANALYSIS

I. THE TRIAL JUDGE DID NOT ABUSE HIS JUDICIAL DISCRETION IN ALLOWING THE STATE TO INTRODUCE FULKS’S PRIOR TESTIMONY.

¶ 18. Fulks claims that the trial judge erred in allowing the State to introduce Fulks’s testimony from his previous trial. At the second trial, Fulks’s prior testimony was read into evidence from the transcript of his first trial. Fulks says that his testimony is inadmissible because it was not disclosed during discovery and was coerced by the State.

¶ 19. This Court consistently has held that “[t]he relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused.” Johnston v. State, 567 So.2d 237, 238 (Miss.1990). In ruling on Fulks’s prior testimony, the judge stated that, in the first trial, he “had given [Fulks] time to make that decision, and he made the decision to testify.” The judge also ruled that Fulks’s prior testimony was admissible as a statement by a party-opponent.

¶20. Mississippi Rule of Evidence 801(d)(2) states the following:

2) Admission by Party-Opponent. The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant’s authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).

M.R.E. 801(d)(2). In analyzing the law and facts of this case, Fulks’s statement was admissible under Mississippi Rule of Evidence 801(d)(2) because the statement offered against him was “[Fulks’s] own statement, in either an individual or a representative capacity.” M.R.E. 801(d)(2). “The fact that the defendant does not take the stand at the second trial does not prevent the use of his testimony given at the former trial, if it would otherwise be admissible.” Edmonds v. United States, 273 F.2d 108, 113 (D.C.Cir.1959).

¶ 21. Fulks also argues that his statement was not an admission but, rather, a statement wrongfully compelled by the State. We disagree. “[F]ormer testimony, voluntarily given in a criminal trial, may be introduced in a subsequent trial upon remand or where the first trial ended in a mistrial.” Reed v. State, 523 So.2d 62, 67 (Miss.1988) (citations omitted). At the first trial, Glenn willingly took the stand. Fulks was then informed of his right to remain silent and chose instead to testify. Fulks voluntarily took the stand, stating that he did not take part in the robbery at all, but instead remained inside the vehicle with Glenn. His testimony was not compelled by the State.

¶22. We have held that a defendant’s testimony at a former trial that constitutes an admission under the laws of evidence may be presented in a later trial of the defendant. Stringer v. State, 491 So.2d 837, 841 (Miss.1986). Fulks’s statement was “an admission, as that concept is understood in our law of evidence.” Id. As such, that testimony “may be presented as evidence at a subsequent trial of that same defendant.” Id. Therefore, we find that the judge did not abuse his discretion in allowing Fulks’s former testimony into evidence.

II. THE TRIAL JUDGE DID NOT COMMIT MANIFEST ERROR IN DENYING FULKS’S MOTION FOR RECUSAL.

¶ 23. Fulks claims that Judge Kitchens should have recused himself based on comments that he made during the course of the second trial. In his motion for recusal, Fulks included the following statements from the judge: “This — that—this opinion may very well be subject to a judicial performance complaint against the Supreme Court on that ground”; “That information was not supplied to the Supreme Court, and this case was reversed on a reason that was, in fact, false”; and “But, yeah, this is — that’s the only reason this case was reversed, and you have seen the continuance orders where I continued it a number of times because the co-defendant was given as a witness against Mr. Fulks.” In his order denying Fulks’s motion for recusal, Judge Kitchens stated that the court’s remarks were not directed at Fulks or his counsel. He clarified that the court instead was commenting on its concern that the Supreme Court may not have received the entire record from the first trial on appeal. Judge Kitchens further explained that he was commenting on the discovery issues from the first trial.

¶ 24. “The standard of review to which this Court is bound on the issue of recusal is manifest error.” Scott v. State, 8 So.3d 855, 859 (Miss.2008) (citations omitted). This Court provided a detailed explanation of the standard for judicial recusal in Dodson v. Singing River Hospital System, 839 So.2d 530, 582-83 (Miss.2003):

The rule concerning disqualification of a judge in effect at the trial of this case was Canon 3, subdivision C, of the Code of Judicial Conduct. It states, “ ‘A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned....”’ In conjunction with this canon, we have held consistently that the objective “ ‘reasonable person knowing all of the circumstances’ ” is the proper standard by which we determine if a judge should have recused himself.

Dodson, 839 So.2d at 532-33 (citations omitted). Therefore, “[i]t is clear that the standard for recusal is a reasonable person knowing all the circumstances. It is also clear that judges are presumed to be qualified and unbiased.” Id. at 533.

¶ 25. The record does not produce a reasonable doubt as to the judge’s impartiality. Judge Kitchens presided over both trials. At the first trial, Fulks was found guilty of armed robbery and aggravated assault. At the close of the second trial, the jury returned a verdict of guilty of armed robbery but found Fulks was not guilty of aggravated assault. During the trial, Judge Kitchens granted several motions in favor of Fulks, including two motions for continuances. He also granted Fulks’s request for additional time for his closing argument.

¶ 26. This Court explained in Scott that: The judge, while properly acting as gatekeeper, was the trier of fact as to admissibility of the evidence; however, the trial judge was not the ultimate trier of fact. The jury rendered the verdict based on substantial evidence, including [the defendant’s] testimony. The presumption of impartiality remains with nothing to rebut it. The standard of manifest error is not met, and there is no showing that the trial judge’s failure to recuse herself had any effect on the jury’s deliberations or verdict....

Scott, 8 So.3d at 860. Fulks claims that Judge Kitchens was preoccupied with the Supreme Court’s reversal of the first verdict and was determined to obtain a conviction in the second trial. Similar to the jury in Scott, Fulks’s jury was not aware of Judge Kitchens’s remarks from the pretrial hearing, at which the alleged prejudicial comments were made. Further, Fulks was acquitted of the second charge of aggravated assault in the second trial. Therefore, we find Fulks’s argument regarding his conviction to be without merit.

¶ 27. “This Court entrusts our judges with great discretion. Our trial judges are confronted daily with evidence that would tend to make defendants appear more culpable than not. We presume that our trial judges are aptly equipped to handle these issues and apply the law without fear of undue prejudice.” Scott, 8 So.3d at 860 (citation omitted). We find that the judge did not commit manifest error and that Fulks did not overcome the presumption of impartiality.

III. THE TRIAL COURT DID NOT ERR IN ALLOWING THE PROSECUTOR TO INFORM THE JURY THAT JOSHUA GLENN HAD ENTERED A PLEA OF GUILTY TO A CHARGE OF AIDING AND ABETTING AFTER THE FACT.

¶ 28. Fulks argues that plain error resulted from the prosecutor’s comments to the jury regarding Glenn. During voir dire of the jury, the prosecutor stated that Glenn had entered a plea of guilty to accessory after the fact to armed robbery and assault, that he had received probation, and that he would testify at trial. Fulks made no objection to any of these remarks. In addition, on cross-examination, Fulks’s attorney sought to impeach Glenn with this information. He also addressed Glenn’s plea in his closing argument. He specifically attacked Glenn’s credibility and his motive for testifying against Fulks.

¶ 29. Fulks argues that, although no objection was entered, the trial court should have recognized plain error. He refers to the Court’s analysis in Randall v. State, 806 So.2d 185 (Miss.2001), to support his reasoning. However, the Court in Randall dealt with the issue of two defendants who were jointly indicted for the same offense but were separately tried. In Randall, the Court was concerned that the jury’s knowledge that the codefendant had been tried and convicted for the same charge as the defendant inhibited the jury from being objective. Id. at 194. That is not the issue in this case. Glenn was never tried by a jury. Rather, the present case is analogous to the Court of Appeals’ recent decision, Williams v. State, 81 So.3d 1165 (Miss.Ct.App.2011). In Williams, the trial court allowed into evidence the fact that the accessories after the fact had entered guilty pleas. Id. at 1170. The Court of Appeals held that this did not amount to plain error:

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

Id. The court ultimately concluded that the “issue [was] procedurally barred because it was not raised below and does not rise to the level of plain error. Williams’s code-fendants were available for questioning, they testified about their involvement in the crime, and their factual basis for their pleas was different....” Id. at 1171.

¶ 30. “However, if there is a finding of plain error, a reviewing court may consider the issue regardless of the procedural bar. A review under the plain error doctrine is necessary when a party’s fundamental rights are affected, and the error results in a manifest miscarriage of justice.” McGee v. State, 953 So.2d 211, 215 (Miss.2007). The finding of plain error requires the trial court to deviate from a legal rule, that error be obvious, and that the error be prejudicial. Id. (citations omitted). The record reflects no plain error. Judge Kitchens did not deviate from a legal rule nor did the testimony prejudice the outcome of the trial. Therefore, the trial court did not err in allowing the prosecutor to comment on Glenn’s plea and sentence.

IV. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN RULING THAT SHERRY FRANKS WAS “UNAVAILABLE” FOR TRIAL.

¶ 31. The trial court, at the request of the State, declared victim Sherry Franks “unavailable” for trial. Fulks argues that the trial court erred when it allowed the State to admit Franks’s former testimony into evidence.

¶ 32. “The foremost requirement of the former testimony exception to the hearsay rule is that the witness or declar-ant be unavailable.” Parker v. State, 514 So.2d 767, 773 (Miss.1986). Further, “[t]he party offering the former testimony bears the burden of proving the unavailability of the witness, and the determination of unavailability is a judicial exercise reviewable on appeal only for abuse of discretion.” De La Beckwith v. State, 707 So.2d 547, 586 (Miss.1997).

¶ 33. Mississippi Rule of Evidence 804(a)(4) states that a witness may be declared unavailable when a witness “[i]s unable to be present to testify at the hearing because of death or then existing physical or mental illness or infirmity....” M.R.E. 804(a)(4). During the pretrial-motions hearing, the State produced a medical witness and a caregiver to illustrate Franks’s mental impairments and loss of memory. Judge Kitchens heard from Dr. Adam Smith, who testified that Sherry Franks was seventy-two years old and had suffered a stroke in February 2009. Dr. Smith specifically stated that Franks suffered trouble with her memory and her cognitive ability. When asked about Franks’s mental abilities, Dr. Smith replied that, “[t]he stroke, as I’ve said, has effected [sic] her memory and her ability, you know, to think clearly in certain situations.” The State also presented testimony from Teresa Spencer, Franks’s daughter, who testified that her mother had suffered a stroke and would often “get things confused.” Spencer stated that, in her opinion, her mother would not be able to handle the stress of another trial. Fulks rebutted this testimony with Investigator Irvin Bradley, who stated that, when he spoke to Franks, she was able to respond to questions.

¶ 34. After hearing the testimony from Dr. Smith, Teresa Spencer, and Investigator Bradley, Judge Kitchens determined that Franks was unavailable pursuant to Mississippi Rule 804. The judge relied on the Court’s decision in Earl v. State, 672 So.2d 1240 (Miss.1996), in his ruling. The Court in Earl faced the issue of whether a witness, who was unable to attend the trial due to a doctor’s appointment, had an “existing physical illness” and could be declared “unavailable” for purposes of Mississippi Rule of Evidence 804(a)(4), when there was no medical witness or affidavit to support the claim. Id. at 1241. While the judge in Earl allowed similar testimony into evidence without medical testimony, Judge Kitchens heard medical testimony and stated that it was not an issue in the present case.

¶ 35. It is uncontested that Sherry Franks had suffered a stroke. The judge based his ruling on the testimony from Franks’s doctor, along with testimony from her daughter, Teresa Spencer, explaining how the stroke had affected Franks’s memory and ability to think clearly. Therefore, the judge did not abuse his judicial discretion in finding that the State had met its burden of proof for Franks’s “existing physical or mental infirmity.” M.R.E.804.

CONCLUSION

¶ 36. We find that Judge Kitchens did not abuse his discretion in allowing into evidence the earlier testimony of Fulks and Sherry Franks. We also find that the trial court did not err in denying Fulks’s motion for recusal. We find that the court did not err in allowing the prosecutor to comment on Glenn’s plea and sentencing. Therefore, we affirm Fulks’s conviction and sentence.

¶ 37. AFFIRMED.

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

KITCHENS, Justice,

concurring in result only:

¶ 88. While I agree that it was not error for the trial court to allow Fulks’s testimony from his first trial to be adduced by the State during its case-in-chief during the instant trial, I do not subscribe to the majority’s analysis in that regard. I also agree that there is no reversible error on the recusal issue, but in reaching this conclusion, the majority tends to confuse the appellate standard of review. For these reasons, I concur in result only and offer the reasoning which led me to conclude that the defendant’s testimony from the first trial was admissible in the second.

¶ 39. On appeal, Fulks argues that his previous testimony was inadmissible because he was neither listed as a witness to be called by the State nor was the transcript of his testimony listed as an exhibit by the State. He also argues that his statement was self-serving, and therefore was not an admission of a party opponent which would render it admissible under Mississippi Rule of Evidence 801(d)(2)(A). The majority does not address the potential discovery violation by the State, so I respectfully offer the following analysis of that issue.

¶40. Fulks first argues that his prior testimony was inadmissible because it was not disclosed by the State during pretrial discovery. He contends that he should have been listed as a witness to be called by the State and that the State’s failure so to list him resulted in a trial by ambush. However, when informed, during the trial, of the State’s intention to present his testimony from the first trial, Fulks did not ask for a continuance. “When a prosecutor reveals evidence on the eve of trial that should have been disclosed earlier, ... the only effective remedy is a continuance.” Fulks v. State, 18 So.3d 803, 805 (Miss. 2009). A defendant who claims surprise because of undisclosed evidence must request a continuance to review the evidence and determine whether it is prejudicial. McCullough v. State, 750 So.2d 1212, 1217 (Miss.1999). “Should the defendant fail to request a continuance, he has waived the issue.” Id. Fulks objected to the admission of the testimony, but he failed to request a continuance following the trial court’s overruling his objection. Accordingly, the issue is proeedurally barred.

¶ 41. Fulks also argues that his statement was wrongfully compelled by the State. He claims that the belated change of Joshua Glenn’s testimony in the first trial compelled him to testify in his defense. At the first trial, Glenn took the witness stand as a State’s witness. Fulks objected to Glenn’s being allowed to testify for the prosecution, claiming surprise and trial by ambush due to the untimely disclosure by the State of the complete change in substance of Glenn’s testimony. When that objection was overruled, he requested a continuance, which also was denied. After the State had rested, Fulks took the stand in his own behalf, after being informed by the trial court that he had a right not to testify. Although Fulks now claims that his testimony during the first trial was involuntarily given, the record of that trial does not show his having made that contention at the time, nor does it lend any support to his present contention. To the contrary, there is every indication that Fulks made an informed and voluntary decision to testify during his first trial.

¶ 42. “[F]ormer testimony, voluntarily given in a criminal trial, may be introduced in a later trial upon remand.” Reed v. State, 523 So.2d 62, 67 (Miss.1988) (citations omitted). This Court has held that the transcript of testimony given in a trial that resulted in a mistrial was admissible in a subsequent trial of the same case “either as part of the State’s case in chief or rebuttal, as an admission of the defendant.” Arrington v. State, 411 So.2d 779, 780 (Miss.1982). See also McMasters v. State, 83 Miss. 1, 35 So. 302 (Miss.1903) (“It is well-settled law in this state that, where a defendant chooses to take the witness stand and testify in his own behalf, in any court, his statement upon that occasion can be used against him upon any future trial of the cause.”) In Stringer v. State, 491 So.2d 837, 841 (Miss.1986), this Court, in analyzing whether a defendant’s prior testimony from a trial in which he was a witness and not a party was admissible, stated that “Arrington and Mackmas-ters [sic] correctly hold that so much of a defendant’s testimony at a former trial which constitutes an admission ... may be presented as evidence at a subsequent trial of that same defendant.” Fulks voluntarily took the stand, after being warned of his right not to do so. His testimony was not compelled by the State, even though Fulks and/or his attorney may have believed that Glenn’s testimony for the prosecution had made it desirable or even expedient for Fulks to try to refute it by his own testimony.

¶ 43. Finally, Fulks contends that his statement was self-serving, not an admission, and so was inadmissible against him under this Court’s holding in Stringer, 491 So.2d at 841. There, the Court held that “the trial court committed reversible error when it received into evidence portions of the prior testimony of ... Stringer which could not fairly be characterized as admissions .... ” Id. The State claims that Fulks’s testimony at the first trial was an admission. An admission is a “statement ] by a party ... of the existence of a fact which is relevant to the cause of his adversary.” Black’s Law Dictionary 44 (5th ed.1979). Fulks testified at the first trial that he was in the car in front of the Franks house. Both he and Glenn testified that Glenn remained outside of the house. The Frankses testified that a male definitely was in the house when they were attacked. Fulks’s statement that he and Glenn had remained in the car, combined with Glenn’s statement that he had stayed in the car while Fulks went in the house and the Frankses’ testimony that a man had been in the house, led to the inference argued by the prosecutor that the only male who could have been in the house, other than Mr. Franks, was Tomarcus Fulks. Therefore, according to the State, Fulks’s statement was “an admission as that concept is understood in our law of evidence^]” Stringer, 491 So.2d at 841. As such, that testimony “may be presented as evidence at a subsequent trial of that same defendant.” Id.

¶ 44. Fulks contends that the statement was self-serving, as he was professing his innocence. The only part of his testimony which allows an incriminating inference is his statement that both he and Glenn were in the car in front of the Franks house, and they both remained in the vehicle. In Stringer, this Court held that only prior testimony that fits within the definition of an admission may be used as evidence against the accused in a subsequent trial. Stringer, 491 So.2d at 841. Therefore, according to Fulks, the part of his testimony that did not constitute an admission was inadmissible against him. Again, to preserve the issue for appeal, Fulks was obligated to object, and, if his objection was unsuccessful, to request a continuance. McCullough 750 So.2d at 1217 (Miss.1999). “Should the defendant fail to request a continuance, he has waived the issue.” Id. Because Fulks failed to request a continuance at that juncture, the issue is procedurally barred, even though parts of his testimony that cannot be classified as admissions were admitted into evidence.

¶ 45. As for Fulks’s claim that the trial judge should have recused himself, the majority holds that “[t]he record does not produce a reasonable doubt as to the judge’s impartiality.” Maj. Op. 25. Accusing the justices of this Court of judicial misconduct based on our appellate review and unanimous reversal of Fulks’s first case should raise at least some doubt about the judge’s impartiality in the retrial of the same case. But, that is not the standard we employ on appeal. “When a judge is not disqualified under the constitutional or statutory provisions the decision is left up to each individual judge and is subject to review only in a case of manifest abuse of discretion.” Jones v. State, 841 So.2d 115, 135 (Miss.2003) (citing Buchanan v. Buchanan, 587 So.2d 892, 895 (Miss.1991)). Judges are presumed to be impartial, and in determining whether an appellant has overcome the presumption of impartiality, “the reviewing court must consider the trial as a whole and examine every ruling to determine if those rulings were prejudicial to the complaining party.” Jones, 841 So.2d at 135 (citing Hunter v. State, 684 So.2d 625, 630-31 (Miss.1996)). Fulks claims that the trial judge had an interest in the outcome based on his comments during a pretrial hearing. See Miss. Const. art. 6, § 165 (“No judge of any court shall preside on the trial of any cause, ... where he may be interested in the same.... ”); Miss.Code of Judicial Conduct Canon 3(C)(1)(c) (same); Miss. Code Ann. § 9-1-11 (Rev.2002) (same). However, he does not point to any of the trial judge’s rulings that were prejudicial and could be said to have been motivated by this alleged bias. Without identifying some particular prejudice, Fulks cannot overcome the presumption of impartiality, and we cannot find that the trial court committed manifest error by denying Fulks’s motion for recusal.

KING, J., JOINS THIS OPINION. WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR AND COLEMAN, JJ„ JOIN THIS OPINION IN PART.

      . The trial court in the second trial read aloud from the transcript of the first trial in which the same judge had informed Fulks of his right not to testify, and Fulks had made the decision, while attended by counsel, to waive that right.


author: KING, Justice,

text:
    Christopher K. TAYLOR a/k/a Christopher Taylor a/k/a Chris Taylor a/k/a Chain v. STATE of Mississippi.
    No. 2011-KA-01911-SCT.
    Supreme Court of Mississippi.
    April 11, 2013.

      Office of Indigent Appeals by George T. Holmes, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before RANDOLPH, P.J., PIERCE and KING, JJ.
   KING, Justice,

for the Court:

¶ 1. Christopher Taylor was convicted in the Circuit Court of DeSoto County of one count of burglary and one count of larceny. Aggrieved, Taylor appeals his conviction and sentence, raising three issues:

I.Whether the trial court erred by allowing the State’s impeachment evidence.
II. Whether the evidence was legally sufficient to support his convictions.
III. Whether the verdict was against the overwhelming weight of the evidence.

The Court finds no error and affirms Taylor’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2. On the afternoon of January 24, 2011, Isaac and Anita Wallace’s home in Hernando, Mississippi was burglarized. Anita reported the following items missing from her home: a flat-screen television, a laptop, her husband’s jewelry, a jar of change, and a clear backpack which contained a pair of clippers and two flat irons. According to Anita, the items were worth more than $3,000.

¶ 3. Detective Semche Pieh of the Her-nando Police Department investigated the case. According to Detective Pieh, the assailant broke a window and entered the home through the kitchen. Detective Pieh observed muddy footprints inside the home, and he noticed a trail of footprints which led from the kitchen window to another home behind the Wallaces’ residence. The home belonged to the Thornton family. Detective Pieh visited the home and informed Mr. Thornton of the burglary and the footprints leading to his home. Mr. Thornton denied having any knowledge of the burglary and suggested Detective Pieh return later to interview his grandson, Derrick Alexander, who was not home at the time.

¶ 4. Detective Pieh later interviewed Alexander. Alexander told the detective that his friend, Christopher Taylor, had visited his home the day of the burglary. The two were supposed to hang out, but Taylor left after Alexander took too long to get dressed. Detective Pieh testified that Alexander gave him conflicting times Taylor was at his home-once saying Taylor was there between 12:00 p.m. and 12:30 p.m., and later saying Taylor was there between 2:00 p.m. and 4:00 p.m.

¶ 5. After speaking with Alexander, Detective Pieh attempted to locate Taylor, who lived with his grandparents. Taylor was out of town with his grandmother, but Detective Pieh was able to speak with Taylor’s grandfather. Taylor’s grandfather denied having any knowledge of the crime. The grandfather allowed Detective Pieh to search their home, and the detective specifically asked to see Taylor’s shoes. The grandfather told the detective that Taylor had taken a pair of shoes with him. Before leaving, Detective Pieh requested the grandfather tell Taylor to contact him upon his return.

¶ 6. On a tip, Detective Pieh learned some of the stolen items — the clear backpack, two flat irons, and hair clippers— were at the home of Taylor’s girlfriend, Kamesha Todd. Detective Pieh visited Todd, and she allowed him to search her apartment. He recovered Anita’s hair clippers. As the State’s witness, Todd testified that Taylor gave her a clear backpack, which contained hair clippers and two flat irons. Allegedly, Mrs. Thornton, Alexander’s grandmother, warned Todd that the items were stolen. Upon learning this, Todd asked Taylor to remove the items from her home. According to Todd, Taylor said that Alexander had committed the burglary, and Taylor denied any participation in the burglary. During her direct examination, Todd denied telling the detective that Taylor was present during the burglary. She also denied saying that Taylor had thrown away a pair of shoes “he hit the lick in.” The State impeached Todd with her statement. Afterward, Todd admitted telling the detective that Taylor had thrown his shoes away, but she denied mentioning anything about the footprints found outside of the Wallaces’ home.

¶ 7. The State recalled Detective Pieh to impeach Todd’s testimony. According to the detective, Todd had said that Taylor admitted being at the Wallaces’ home during the burglary. But Todd said Taylor did not commit the burglary; she claimed Taylor was there only to help dispose of the stolen items. The detective also learned from Todd that, after Taylor heard about the footprints, he disposed of his shoes.

¶ 8. Detective Pieh was contacted by Sherry Dale, Taylor’s mother. She was concerned about her youngest son, Chad, who was approached by police regarding stolen items. Dale testified for the State. Dale stated that Chad had a laptop in his possession which she had not purchased. When Dale questioned Taylor about the laptop, he stated that he had received it from Todd. Dale then asked Taylor to remove the laptop from her home, and he did. Detective Pieh did not recover the laptop in his investigation.

¶ 9. Taylor also testified at trial. Taylor contacted Detective Pieh after returning to Hernando. Detective Pieh interviewed Taylor at the police station, and Taylor signed a waiver of his Miranda rights. Detective Pieh informed Taylor that Alexander had implicated him in the burglary of the Wallaces’ residence. Taylor was stunned and denied any knowledge of the burglary.

¶ 10. At trial, Taylor denied burglarizing the Wallaces’ home and testified that Alexander actually had committed the burglary. According to Taylor, he had received stolen property from Alexander — a clear backpack, two flat irons, hair clippers, and a laptop. Because the police had been to Alexander’s home earlier that day, Taylor stated that Alexander had asked him to “hold” the items. To protect Alexander, who was his friend at the time, Taylor did not reveal Alexander’s participation in the burglary during his interview with Detective Pieh. Taylor felt betrayed after learning that Alexander had implicated him in the crime. When asked where the stolen items were, Taylor testified that he had returned the laptop to Alexander and had thrown the other items in a dumpster.

¶ 11. On November 15, 2011, Taylor was convicted of one count of burglary and one count of larceny. On count one (burglary), he was sentenced to fifteen years in the custody of the Mississippi Department of Corrections (MDOC), with three years to serve and twelve years of post-release supervision, with five years reporting. On count two (larceny), he was sentenced to ten years in the custody of the MDOC, with three years to serve and seven years of post-release supervision, with five years reporting. The trial court ordered those sentences to run concurrently. The trial court also ordered Taylor to pay a $1,000 fine, court costs, $100 to the Mississippi Crime Victim’s Compensation Fund, and $2,650 in restitution.

¶ 12. Thereafter, Taylor filed a motion for a judgment notwithstanding the verdict (JNOV) and a motion for a new trial. The trial court denied both motions. Taylor timely filed his notice of appeal with this Court.

ANALYSIS

I. Impeachment Evidence

¶ 13. Taylor argues that the State was allowed to offer unsworn, out-of-court statements attributed to Todd through Detective Pieh’s testimony, -without proving that Todd was a hostile witness. Taylor contends that the statements were extremely damaging because they contained the only evidence connecting him to the scene of the crime. Taylor also complains that the trial court failed to offer a limiting instruction to the jury. The State argues that the prior inconsistent statement was used properly to impeach Todd. But the State’s argument, which cites caselaw regarding the State’s impeachment of a defense witness, is of no assistance here.

¶ 14. In order to impeach its own witness with a prior inconsistent statement, a party must prove it was surprised by the witness’s testimony or that the witness is hostile. Wilkins v. State, 603 So.2d 309, 322 (Miss.1992). A prior inconsistent statement may be admitted for impeachment purposes only; it cannot be admitted as substantive evidence. Id.

¶ 15. Taylor does not challenge the State’s impeachment of Todd; he challenges only the evidence elicited through Detective Pieh’s testimony. As previously mentioned, Todd said Taylor denied committing the burglary and Todd denied saying that Taylor had thrown away his shoes. The State impeached Todd with a prior inconsistent statement given to Detective Pieh. After this, Todd admitted telling the detective Taylor had thrown his shoes away, but she denied mentioning the footprints found outside the Wallaces’ home. The defense did not object to Todd’s testimony and, on cross-examination, proceeded to question and elicit testimony from Todd regarding the statement.

¶ 16. After Todd’s testimony, the State recalled Detective Pieh and questioned him regarding the substance of Todd’s statement. The defense objected to Detective Pieh’s testimony on the grounds of leading and “improper questioning concerning impeachment of the State’s own witness.” The trial court sustained as to leading but overruled the improper-impeachment objection. Thereafter, the detective testified that Todd said: (1) Taylor had admitted being at the Wallaces’ home during the burglary, (2) Taylor did not actually break into the home, but he was there to help Alexander dispose of the stolen items, and (3) Taylor had disposed of his shoes after learning police had found footprints outside the home.

¶ 17. The record clearly shows that the State was allowed to impeach Todd, its own witness, without proving (1) that it was surprised by her testimony, or (2) that she was a hostile witness. But Taylor failed to object to the State’s impeachment of Todd at trial, which waives the argument for appellate review. Bove v. State, 185 Miss. 547, 188 So. 557, 558 (Miss.1939). Taylor also has failed to raise a plain-error claim on appeal. Alternatively, the Court, on its own volition, may recognize this as plain error. The Court declines to do so and determines the issue has been waived for appellate review.

¶ 18. Defense counsel objected to Detective Pieh’s testimony regarding Todd’s statement, and the trial court overruled the objection. This was error. But, at that point, the damage had been done. Todd had admitted making the statements during her direct examination; the defense had failed to object to this testimony and to a request a limiting jury instruction. Thus, any error the trial court committed by overruling the objection to Detective Pieh’s testimony regarding Todd’s statement is harmless. This issue is without merit.

II. Legal Sufficiency

¶ 19. Taylor challenges the legal sufficiency of the evidence. A motion for JNOV challenges the legal sufficiency of the evidence. Knight v. State, 72 So.3d 1056, 1063 (¶ 24) (Miss.2011). When ruling on a motion for JNOV, the trial court must view all credible evidence consistent with the defendant’s guilt in the light most favorable to the State. Id. The Court will not disturb the trial court’s ruling if “the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction[,]’ ” and reversal is required. Id. (quoting Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005)). Thus, the Court must determine whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

A. Burglary

¶ 20. Taylor was charged with two crimes — burglary and larceny. Regarding burglary, Mississippi Code Section 97-17-23(1) provides that:

Every 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 by commitment to the custody of the Department of Corrections for not less than three (3) years nor more than twenty-five (25) years.

Miss.Code Ann. § 97-17-23(1) (Rev.2006). Taylor claims that he had received stolen goods from Alexander, and he did not burglarize the Wallaces’ home. Taylor contends his possession of the stolen goods is insufficient evidence of burglary. Taylor states the impeachment evidence is the only evidence which places him at the scene of the crime and, since it was admitted improperly, it cannot be used as substantive evidence of his guilt.

¶ 21. Taylor also claims this case is based on circumstantial evidence, and the evidence does not satisfy the circumstantial-evidence test. The Court finds that Taylor’s conviction is based upon more than circumstantial evidence. However, we address Taylor’s claim. Under the circumstantial-evidence test, the Court must consider the following:

1. The temporal proximity of the possession to the crime to be inferred;
2. The number or percentage of the fruits of the crime possessed;
3. The nature of the possession in terms of whether there is an attempt at concealment or any other evidence of guilty knowledge;
4. Whether an explanation is given and whether that explanation is plausible or demonstrably false.

Shields v. State, 702 So.2d 380, 383 (Miss.1997).

¶ 22. Taylor claims the evidence is insufficient because he never concealed his possession of the items, and he provided an explanation for his possession. We disagree. Based on Todd’s testimony, there is evidence that Taylor possessed fruits of the burglary the same day it occurred. Taylor admitted possession of the laptop, hair clippers, and two flat irons. But based on Dale’s testimony, Taylor concealed the true origin of the laptop given to her younger son. Although Taylor claims he is guilty only of receiving stolen property, Todd’s-testimony raises an inference of guilt as to burglary. It is within the jury’s province to determine the credibility of the witnesses. Knight, 72 So.3d at 1064 (¶ 32). Based on the evidence, a reasonable juror could have determined that Taylor burglarized the home.

¶ 23. Viewing the evidence in the light most favorable to the State, a rational juror could have found the State had proved the essential elements of burglary beyond a reasonable doubt.

B. Larceny

¶ 24. Grand larceny is “taking and carrying away, feloniously, the personal property of another, of the value of Five Hundred Dollars ($500.00) or more.... ” Miss.Code Ann. § 97-17-41(1) (Rev.2006). Taylor argues that the State failed to prove he had stolen the items and, if anything, he is guilty of receiving stolen property. But, “[u]nder Mississippi law, possession of recently stolen property is a circumstance which may be considered by the jury and from which, in the absence of a reasonable explanation, the jury may infer guilt.” See Seales v. State, 90 So.3d 37, 42 (¶ 25) (Miss.2012). As previously stated, there was sufficient evidence for the jury to determine that Taylor committed burglary beyond a reasonable doubt. This was a jury question, and the jury resolved any conflicts in the evidence in favor of Taylor’s guilt. See id. at 41^3 (¶¶ 20-30).

¶ 25. Taylor also argues that the State failed to prove the fair-market value of the items he had received. We disagree. Testimony established that Taylor had at least four of the stolen items in his possession: the laptop, hair clippers, and two flat irons. Anita testified to the approximate. cost of these items: the laptop cost $400, the hair clippers cost $60, and the two flat irons were $100 each. The value of the items equaled $660, more than the statute’s $500 requirement. Thus, the Court finds that the State met this element of the offense.

¶ 26. Viewing the evidence in the light most favorable to the State, any rational trier of fact could have found that the State had proved the essential elements of larceny beyond a reasonable doubt. Accordingly, the Court finds the trial court did not err by denying Taylor’s motion for JNOY.

III. Weight of the Evidence

¶ 27. Taylor also argues that the verdict is against the overwhelming weight of the evidence. Specifically, Taylor maintains that the impeachment evidence is insufficient to support the guilty verdict.

¶ 28. A motion for a new trial challenges the weight of the evidence. Knight, 72 So.3d at 1064 (¶31). The Court will not disturb the trial court’s denial of a motion for a new trial unless “[the verdict] is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. (quoting Bush, 895 So.2d at 844 (¶ 18)).

¶ 29. Taylor denied burglarizing the Wallaces’ home, and Todd continually stated that Taylor had nothing to do with the burglary. But Todd’s impeachment testimony called the credibility of both Taylor and Todd into question. Taylor failed to object to the State’s impeachment of Todd and failed to request a limiting instruction. It is within the jury’s province to determine the weight and credibility to give to the evidence, resolving all conflicts in the evidence. Knight, 72 So.3d at 1064 (¶ 32). Viewing the evidence in the light most favorable to the verdict, the jury resolved any conflicts in the evidence in favor of Taylor’s conviction. The Court finds that the verdict is not against the overwhelming weight of the evidence, and we cannot present any reason to call the jury’s judgment into question. Accordingly, the trial court did not err by denying Taylor’s motion for a new trial.

CONCLUSION

¶ 30. Taylor failed to object to the State’s impeachment evidence during Todd’s direct examination, and Taylor failed to request a limiting instruction. Thus, any error the trial court committed by overruling the objection to Detective Pieh’s testimony regarding Todd’s statement is harmless.

¶ 31. Viewing the evidence in the light most favorable to the State, sufficient evidence exists upon which a jury could have found beyond a reasonable doubt that Taylor burglarized the Wallaces’ home and committed larceny therein. Because the evidence was legally sufficient to support Taylor’s conviction, the trial court did not err by denying Taylor’s motion for a JNOV.

¶ 32. The jury is charged with determining the weight and credibility to give to the evidence, resolving all conflicts in the evidence. Viewing the evidence in the light most favorable to the verdict, the jury resolved any conflicts in the evidence in favor of Taylor’s conviction, and we find no reason to disturb the jury’s verdict. Thus, the trial court did not err by denying Taylor’s motion for a new trial.

¶ 33. Based on the foregoing, the Court affirms Taylor’s conviction and sentence.

¶ 34. COUNT I: CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THREE (3) YEARS INCARCERATION, CREDIT FOR TWENTY-ONE (21) DAYS TIME SERVED, AND TWELVE (12) YEARS POST-RELEASE SUPERVISION WITH FIVE (5) YEARS REPORTING, AFFIRMED. COUNT II: CONVICTION OF GRAND LARCENY AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THREE (3) YEARS INCARCERATION, CREDIT FOR TWENTY-ONE (21) DAYS TIME SERVED, AND SEVEN (7) YEARS POST-RELEASE SUPERVISION WITH FIVE (5) YEARS REPORTING, AFFIRMED. APPELLANT SHALL PAY A FINE OF $1,000, COURT COSTS, $100 TO THE MISSISSIPPI CRIME VICTIM COMPENSATION FUND AND $2,650.00 IN RESTITUTION, WITH CONDITIONS. SENTENCES SHALL RUN CONCURRENTLY.

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

      . Mr. and Mrs. Thornton’s first names are absent from the record.

      . The detective had taken photographs of and sketched the footprints found outside the Wal-laces' home. He used the photographs and sketches to compare to Alexander’s and Taylor’s shoes. Alexander’s shoes did not match the footprints exactly, but they were similar. Taylor’s shoes were not a match.

      . The tipster’s identity is not revealed in the record. Detective Pieh testified that Anita advised him to discuss the burglary with a local business owner. The business owner introduced the detective to an employee, who provided the information.

      . Todd claimed she and Taylor were just friends at the time of the incident. The two now have a child together. However, testimony is inconsistent regarding whether the two were dating at the time of trial. Todd claimed that she and Taylor were engaged. But Taylor stated that they were on bad terms and not speaking. Taylor even insinuated that Todd had a grudge against him.

      . Anita later identified the clippers as hers, which she recognized by a cord she recently had replaced.

      . According to Todd, Mrs. Thornton said her neighbor's home was burglarized, and the items came from Mrs. Thornton's home.

      . When Detective Pieh visited Todd, the flat irons were no longer at her apartment.

      . Previously, the Court has stated that "hit a lick” is colloquialism for robbery. Davis v. State, 40 So.3d 525, 527 (¶ 6) n. 6 (Miss.2010). Today, the Court notes this phrase can be used in any instance where a person receives a substantial sum of money or goods, whether obtained legally or illegally. For example, you can "hit a lick” at the casino by winning a large sum of money. Thus, "hit a lick” does not always refer to criminal activity-

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Todd and Taylor testified regarding how and when Taylor visited Alexander’s home the day of the burglary. According to Taylor, Todd dropped him off at his grandmother’s home that morning. Taylor’s grandmother lives near Alexander’s home. Taylor said he spent the day "walking and chilling” in the neighborhood. Todd got off work around 4:00 p.m. After work, Todd picked Taylor up from a friend’s house, they returned to Todd’s apartment, and Taylor later borrowed Todd’s car to visit Alexander. Taylor stated this was the only time he had visited Alexander that day. Todd testified to similar events. However, she stated that Taylor had borrowed her car to go to his grandmother’s house. When he returned, he had a clear backpack which contained two flat irons.

      . In its brief, the State cites a case relied upon by the trial court — Tate v. State, 20 So.3d 623, 635 (Miss.2009). In Tate, the Court held that the trial court did not err in allowing the prosecutor to cross-examine the defendant's wife regarding a prior inconsistent statement. Tate is distinguishable. Here, the State was allowed to impeach its own witness with a prior inconsistent statement without showing that it was surprised by Todd’s testimony or that Todd was a hostile witness.

      . The defense raised one objection to the form of a question, but the defense did not raise a substantive objection to the State’s impeachment of Todd.

      .The Court has stated that:
      A defendant who fails to make a contemporaneous objection must rely on plain error to raise the assignment on appeal. This Court applies the plain error rule only when a defendant’s substantive rights are affected.

        Morgan v. State, 793 So.2d 615, 616 (¶ 6) (Miss.2001).

      . The Court of Appeals has reversed a case recognizing as plain error the State's failure to lay the proper foundation to impeach its own witness. See King v. State, 994 So.2d 890 (Miss.Ct.App.2008).

      . Failure to request a limiting instruction waives the issue on appeal. Russell v. State, 607 So.2d 1107, 1117 (Miss.1992).