author: CHANDLER, Justice, for the court:

text:
    Bernard TAYLOR, Jr. a/k/a Bernard Taylor v. STATE of Mississippi.
    No. 2012-KA-01708-SCT.
    Supreme Court of Mississippi.
    May 1, 2014.

      Office of State Public Defender by Justin T. Cook, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before WALLER, C.J., CHANDLER and KING, JJ.
   CHANDLER, Justice, for the court:

¶ 1. This case arose out of a shooting incident that occurred due to tensions between two rival teenage gangs. Sixteen-year-old Bernard Taylor fired multiple shots into a car containing five people, wounding three of them. He was charged with three counts of aggravated assault, with each count alleging a firearms enhancement under Mississippi Code Section 97-37-37. The trial court denied Taylor’s proposed jury instruction on the lesser-included offense of simple assault. Taylor was granted a self-defense instruction. The jury was not instructed on the firearms enhancement. Taylor was convicted of one count of aggravated assault. At a separate sentencing hearing, Taylor received a twenty-year sentence for aggravated assault and a five-year sentence for a firearms enhancement, to run consecutively.

¶ 2. On appeal, Taylor argues that the district court erred by denying the assault instruction, and that the five-year sentence enhancement should be vacated either under the United States Supreme Court case Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) or, alternatively, under double jeopardy. We find that Taylor’s arguments are without merit and affirm the judgment of the circuit court.

FACTS AND PROCEEDINGS BELOW

¶ 3. On the evening of January 1, 2011, and into the morning of January 2, 2011, Jessie Whitfield and his brother Chris were taking a ride home from a party near the Jackson Medical Mall with their friends Jazmyn, Meyhatta, Latisha, and Raven. Latisha was driving, and Raven was sitting in the front passenger seat. Jessie was sitting by the driver’s side door in the back seat, Jazmyn was beside him in the middle, and his brother Chris was on the passenger side in the back seat with Meyhatta on his lap. As they were about to pull out of the parking lot, they heard gun shots nearby, and Chris got out to see if he could tell where the shots were coming from. Chris got back into the car, and just after he shut the door, a car pulled up beside them with Taylor in the back passenger seat. Jessie told the others in the car, “there go Bernard,” and “they fixing to shoot us. Fixing to shoot.” Taylor started shooting. Jessie, Jazmyn, and Meyhatta were shot. They testified that none of them had a gun in the car that night. Jessie testified that he had seen Taylor inside at the party but did not speak to him.

¶ 4. Diallo Vaughn was in the car with Taylor. He testified that a car pulled up beside them and that they saw a gun. He said at the time he did not know it was Jessie with the gun, and that he did not see anyone else in the car other than Jessie. He testified that the gun was pointing at them, that Taylor shot Jessie because he was trying to protect himself, and that Taylor was not trying to shoot Raven or Meyhatta.

¶ 5. After the shooting, the police and an ambulance were called. Several of the victims identified Taylor as the shooter. He was picked up the next day at school and questioned by Detective Eric Smith and Detective Delars Smith. They took the following statement from him:

I was at the party. The police put me out of the club and I went to the car. I sat in the car and waited until the party was over for my friend. My friend came out of the party. They came and got me.
Another group of guys were together. They were all ready — they were — there were ready to fight my friends. We got in the car. We started leaving out of the parking lot. They pulled up beside us. I looked to the right and seen them and I shot. We drove out of the parking lot after I shot. I am very sorry for what I did and it will never happen again.

¶ 6. Taylor told the officers that he was shooting at boys from a rival gang who were riding in a brown, four-door car. He told the officers that he fired four shots into the back driver side and that he was the only one to shoot into the car. Taylor did not mention that anyone in the other car showed him a gun or shot at him. Detective Smith testified that, at the scene, he saw four bullet-impact sites on the rear driver’s door of the victims’ car.

¶ 7. At trial, Taylor testified on his own behalf. He said that as he was driving away from the party, Diallo told him that someone in the car to their right had a gun, that he ducked down, grabbed his gun, and saw Jessie with a gun pointed at his face. He thought Jessie was about to shoot, so he started shooting.

¶ 8. Felicia Robinson, a Mississippi Crime Laboratory employee, testified that the ten shells found at the scene could be separated into two groups of five, fired from two different weapons. She did not have any information about the crime scene or the location in which the shells were found at the crime scene.

DISCUSSION

I. Whether Taylor was improperly denied a simple-assault, lesser-included-offense instruction at trial.

¶ 9. Taylor first argues that he was improperly denied a jury instruction on the lesser-included offense of simple assault. Taylor argues that the presence of shell casings from multiple guns at the scene supports the theory that he shot negligently under the mistaken belief that nearby gunshots were intended for him. “When jury instructions are challenged on appeal, we do not review them in isolation; rather, “we read them as a whole to determine if the jury wás properly instructed.’ ” Rubenstein v. State, 941 So.2d 735, 787 (Miss.2006) (quoting Goodin v. State, 787 So.2d 639, 657 (Miss.2001)); Milano v. State, 790 So.2d 179, 184 (Miss.2001). “[T]he court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Heidel v. State, 587 So.2d 835, 842 (Miss.1991). A lesser-included-offense instruction must be refused if the circuit court finds that “taking the evidence in the light most favorable to the accused, and considering all reasonable favorable inferences that may be drawn from the evidence in favor of the accused, that no hypothetical jury could find the fact as the accused suggests.” Williams v. State, 53 So.3d 734, 741 (Miss.2010).

¶ 10. To be entitled to a lesser-included-offense instruction, the defendant must point to evidence from which a jury reasonably could find him not guilty of aggravated assault and at the same time find him guilty of simple assault. Ladnier v. State, 878 So.2d 926, 932 (Miss.2004). “Only where the evidence could only justify a conviction of the principal charge should a lesser offense instruction be refused.” Mease v. State, 539 So.2d 1324, 1330 (Miss.1989). “Once a deadly weapon is introduced, the distinction between simple and aggravated assault ... hinges upon whether the injuries were inflicted negligently or intentionally.” Jackson v. State, 684 So.2d 1213, 1230 (Miss.1996).

¶ 11. Taylor’s trial testimony and choice of self-defense argument establish that he intentionally shot Jessie. In denying Taylor’s request for a lesser-included-offense instruction on simple assault, the trial court relied on this Court’s opinion in Ford v. State, 975 So.2d 859 (Miss.2008), in which we held in regard to simple assault:

Because [the defendant] used a deadly weapon, there must be evidence that she acted negligently in causing harm to Gaddy: “A person is guilty of simple assault if he ... negligently causes bodily injury to another with a deadly weapon.” Miss.Code Ann. § 97-3-7(1) (Rev.2006). In the present case, it is undisputed that [the defendant] intentionally stabbed [the victim]. According to her own testimony, [the defendant] stabbed [the victim] with the knife in self-defense ....

Id. at 865 (emphasis added.)

¶ 12. As in Ford, Taylor testified and argued at trial that he intentionally shot at Jessie in self-defense because Jessie had a gun and pointed it at him. He did not argue at trial that he acted negligently under the mistaken belief that undisputed gunshots near the scene were intended for him. Based on the presence of a deadly weapon and Taylor’s concession that he intentionally shot at Jessie, the evidence justified either “a conviction of the principal charge” or acquittal based on a theory of self-defense. The evidence does not demonstrate negligence. Therefore, the trial court did not err by denying the simple-assault instruction.

II. Whether Taylor’s five-year firearms sentencing enhancement should be vacated.

A. Whether the enhancement violates Apprendi v. New Jersey.

¶ 13. Taylor next argues that reversal of his five-year sentence enhancement is mandatory because the enhancement violates the United States Supreme Court’s holding in Apprendi, which states: “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added). The maximum sentence for aggravated assault is twenty years; when combined with the five-year firearms enhancement, Taylor’s twenty-five year sentence is subject to an Appren-di analysis because it exceeds the prescribed statutory maximum for the offense. We find that, because the jury did decide every fact necessary to satisfy the elements of the sentencing enhancement — in particular, Taylor’s use of a firearm — the Apprendi standard is satisfied and reversal of the enhancement is not required.

¶ 14. Taylor attempts to argue that Apprendi requires the actual sentence enhancement itself to be found by the jury. But that is not the law. The trial judge may impose the sentence enhancement once the jury has found all of the facts necessary to satisfy the elements of the sentencing-enhancement statute. Appren-di requires the jury to find not the sentence enhancement itself, but every fact required for the sentence enhancement to be imposed. The jury having found all of the necessary facts, the trial judge has the authority to impose the sentence.

¶ 15. This Court applied Apprendi in Brown v. State, 995 So.2d 698 (Miss.2008). In Brown, the Court vacated a sentence enhancement because reasonable doubt existed as to the question of whether the sale of a controlled substance occurred within 1,500 feet of a church. Id. at 704. The proximity to the church was a required fact for satisfying the elements of the sentencing-enhancement statute. Id. This Court held that “[t]he existence of a church within 1,500 feet of Brown’s crime ... is a fact that he was entitled to have determined by a jury.” Id. at 703 (emphasis added).

¶ 16. Here, unlike in Brown, the jury found all of the facts necessary to satisfy the elements of the sentencing-enhancement statute. In particular, the jury found the fact that Taylor used a firearm. Jury Instruction S-3B read:

The Defendant is charged by indictment in Count Three with Aggravated Assault. If you find from the evidence in this case, beyond a reasonable doubt, that:
1. The Defendant, on or about the 2nd day of January, 2011, in the county aforesaid and within the First Judicial District of Hinds County, Mississippi;
2. Did purposely or knowingly cause serious bodily injury to another, JESSIE WHITFIELD, a human being;
3. By shooting said person with a deadly weapon, a firearm;
then you shall find the Defendant guilty of Aggravated Assault. If the State has failed to prove any one or more of the above elements beyond a reasonable doubt then you shall find the Defendant Not Guilty.

(Emphasis added.) The jury found all of the facts required for the judge to impose the five-year sentence enhancement, and, therefore, this Court is not required to reverse the sentence enhancement under Apprendi.

B. Whether Taylor’s sentence enhancement violates double jeopardy

¶ 17. Finally, Taylor argues that the imposition of the sentence enhancement violates his protection against double jeopardy because it constitutes multiple punishments for the same offense, and the sentencing-enhancement statute requires proof of the same elements as the underlying crimes. The Mississippi Court of Appeals has addressed this issue multiple times, including in Lewis v. State, 112 So.3d 1092 (Miss.Ct.App.2013). Lewis argued that the imposition of separate sentences under Mississippi Code Sections 97-37-5 and 97-37-37(2) violated his double-jeopardy protection against multiple punishments for the same offense. The Court.of Appeals disagreed, finding that “Section 97-37-37(2) merely imposes an elevated sentence for use or display of a firearm during the commission of a felony, and it does not delineate an independent substantive offense.” Id. at 1096. The Court of Appeals was correct in this analysis. The Legislature intended for these two punishments to apply to the same offense, therefore there is no double-jeopardy concern. See Mayers v. State, 42 So.3d. 33 (Miss.Ct.App.2010); Wansley v. State, 114 So.3d 793 (Miss.Ct.App.2013).

CONCLUSION

¶ 18. The trial court properly denied the lesser-included-offense jury instruction. The jury found every fact necessary for the trial court to impose the five-year sentence enhancement. Finally, Taylor’s argument that the sentence enhancement violates double jeopardy fails because it does not constitute a separate punishment for the same offense and is within the sentence allowed by the Legislature for the offense when the aggravated assault and enhancement statutes are read together. The conviction and sentence of the Hinds County Circuit Court are affirmed.

¶ 19. CONVICTION OF AGGRAVATED ASSAULT WITH GUN ENHANCEMENT AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. APPELLANT IS SENTENCED FOR AN ADDITIONAL FIVE (5) YEARS FOR THE GUN ENHANCEMENT AND IS GIVEN CREDIT FOR TIME SERVED. SENTENCES SHALL RUN CONSECUTIVELY.

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

      . “Except to the extent that a greater minimum sentence is otherwise provided by any other provision of law, any person who uses or displays a firearm during the commission of any felony shall, in addition to the punishment provided for such felony, be sentenced to an additional term of imprisonment in the custody of the Department of Corrections of five (5) years, which sentence shall not be reduced or suspended.” Miss.Code Ann. § 97-37-37 (Rev.2006).

      . While this Court's holding in Brown is clear ("[t]he existence of a church within 1,500 feet of Brown's crime ... is a fact that he was entitled to have determined by a jury”)(emphasis added), the opinion in other places states arguably more broadly “[ujnder Ap-prendí, Brown enjoyed a Sixth Amendment right to have the issue of his sentence enhancement submitted to a jury.” Brown, 995 So.2d at 704. We clarify that this language in Brown does not mean that the jury itself must impose the sentence enhancement.


source: Caselaw Access Project

author: RANDOLPH, Presiding Justice,

license: Public Domain

text:
    Brad HARDY a/k/a Brady Hardy v. STATE of Mississippi.
    No. 2012-KA-01970-SCT.
    Supreme Court of Mississippi.
    May 1, 2014.

      Christopher Michael Falgout, Andy Davis, Meridian, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before RANDOLPH, P.J., PIERCE and KING, JJ.
   RANDOLPH, Presiding Justice,

for the Court:

¶ 1. Brad Hardy appeals his conviction in the Circuit Court of Rankin County of two counts of manslaughter by culpable negligence and one count of aggravated boating under the influence of alcohol resulting from a boating collision. He was sentenced to forty-four years, with twenty-six to serve. Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2. Brad Hardy crashed his boat at high speed into two docked boats, up a river embankment, and onto a campsite occupied by adults and children on Memorial Day weekend in 2010. A jury trial was held from October 15, 2012, through October 17, 2012.

¶ 3. The State presented the following pertinent evidence through numerous witnesses and exhibits:

¶4. Virginia Martin testified that, on the day of the fatal collision, she was camping on the Pearl River across from the impact area, a short distance from Dead Man’s Curve. She testified that she “heard a really loud boat coming and turned around.” She saw Hardy’s “small boat going really fast, and [Hardy] was standing up driving it, which is a no-no.... Hardy came around Dead Man’s Curve and just turned ... and hit the bank and went up onto the bank.... He hit some boats, and then hit the bank, went up on the bank, and the boat landed between two trees on the other side of the river.” Martin testified that she saw “hundreds” of boats that weekend, and witnessed no other boat being operated in that manner. She further testified that Hardy “turned in and went straight towards [the campsite] across from us.” She said Hardy never warned the campers by yelling or waiving his arms. Martin said that Hardy did not appear to have “any difficulty whatsoever in operating the boat.” On cross-examination, Martin reaffirmed that Hardy did not have any problems operating the boat. She also testified that she could see from “above his knees up, because he was standing up and holding the steering wheel.” She testified that she overheard a little girl on the bank scream “you killed my daddy.”

¶5. Officer Steven Westerfield of the Department of Wildlife and Fisheries (DWF) testified that, while at Ratliffs Ferry, he received at call at 7:15 p.m. about a boat collision upriver. When he arrived on the scene, he noticed a green boat and a yellow boat. The deceased, Mikael Hardy and Roger Gibson, were in the yellow boat. He testified that the river bank was six feet high. He found Hardy’s blue boat twelve feet inland. On the bank, Westerfield found another victim, William Hulett, bleeding severely. After managing to send Hulett with another officer to get medical assistance, Westerfield identified the defendant as the operator of the blue boat. Westerfield testified that “[t]he throttle position was in the wide open position.” The throttle was “pushed all the way forward as far as it could go ... [i]t was maxed out. It could not go any faster.” Westerfield observed damage to a tree eight feet above the ground level. The boat had reached a height of fourteen feet above water level and was twelve feet inland. Westerfield measured the distances, and the boats, tree, and fatalities were photographed.

¶ 6. Westerfield also found “visible alcoholic beverage containers” in Hardy’s boat. He testified that empty beer cans littered the boat. As Westerfield approached Hardy, he “smell[ed] a strong alcoholic odor coming from [Hardy].” Westerfield requested a field sobriety test, but Hardy refused. Hardy stated that he had returned from getting alcohol, and admitted to consuming six beers. Westerfield then detained Hardy and took him to Ratliffs Ferry to administer a breathalyzer test to Hardy. Hardy blew .09 at 8:39 p.m. Westerfield “observed that [Hardy] had been drinking and that he was impaired.” Westerfield testified that if he witnessed “someone driving the defendant’s boat in a standing position,” he “would cite that subject for reckless operation.” Hardy’s boat “was designed to be operated sitting down.” Westerfield’s report was introduced into evidence. In his report, he had checked “alcohol use,” “careless/reckless” operation, “excessive speed,” and “steering system” as causes of the collision, since Hardy stated that he “lost control of the steering and that the boat took a right turn.” On cross-examination, Westerfield said he presented the case to the grand jury because “there were two fatalities, one man was maimed ... alcohol was involved ... careless, recklessness, excessive speeds.” Sea-Tow was called to remove the boats. He testified that it was not policy to “leave [boats] in the river,” for they had to be removed for “public safety.” The boats were stored at Sportsman’s Marina. Westerfield testified .that he did not know how long the boats were kept, but found out later they were sold. He testified that he “did not give permission nor [did] my department” to sell the boats. Westerfield identified four pictures in evidence that reflected the damage to the steering cable of Hardy’s boat. On redirect, Westerfield testified that the actual cause of the collision was “excessive speed.” He testified that there was no evidence of throttle failure. On the accident report, Westerfied had checked the “over 40 mph” box, the highest speed available on the report. Westerfield testified that he did not cite Hardy for any boating violations because they “have to happen in my presence.”

¶ 7. Teresa Gibson, the wife of the deceased Roger Gibson, testified that she had witnessed Hardy “run over” her husband. Immediately before witnessing her husband’s death, she testified that she “heard [Hardy] coming” and heard “[Hardy] speeding.” After hearing Hardy approaching, she turned toward the river. She witnessed Hardy operating the boat. “I seen him with a can in his hand.” She testified that Hardy was “full throttle” and never slowed down. When Hardy reached the bank, she testified that the boat went airborne “over my head and behind me.... When he landed behind me, it was still full throttle.” Gibson testified that, after Hardy’s boat had landed, Hardy asked “what had he just did.” She testified that her daughter was burned by metal from one of the boats. She testified her husband died instantly. On cross-examination, she repeated that the boat “was full throttle,” and was “still full throttle” when the boat “landed behind [her].” She testified that the boat never slowed down.

¶ 8. Officer Randy Newell testified that Hardy stated “[a]ll we were doing was having fun; I was just trying to spray them and have fun; I didn’t mean to hurt anybody.” Later, Newell heard Hardy make a similar statement while at the University of Mississippi Medical Center. Hardy stated, “All I was doing was trying to spray them; we were just having fun; I didn’t mean to hurt anybody.” Newell testified that all three boats were taken to Sportsman’s Marina. Newell testified that the marina is a gated area, and he did not have any reason to believe the boats would not be secure there.

¶ 9. Luke Estes testified that Hardy’s campsite was on the other side of the river, close enough that “you could holler back and forth.” Estes testified that “[Hulett] was sitting beside me to my right,” and “Teresa [Gibson] was to my left ... children were playing in the water.” Estes heard a boat and saw Hardy coming up the river. Estes testified that he saw Hardy turn and “start[] angling straight toward us.” Hardy “just kept at the same speed, a fast speed.” Hardy “went straight to the camp.” Estes testified that he “thought [Hardy] was going to spray them or something.” Estes testified that “I was looking at him, and he just had this look on his face like nothing was wrong.... I was looking dead at him,” thinking “what’s he doing ... By the time I realized he wasn’t going to turn, he had run over me.” Estes testified that Hardy never yelled and “never let off the boat, never hollered, no motion at all.” Hardy “was just planed out, coming on in.”

¶ 10. Estes also was struck by Hardy’s boat. Afterwards, he saw “a hunk of meat missing” from Hulett’s arm. Estes testified that “you could put your fist in there.” Estes also testified that he saw empty beer cans in Hardy’s boat. After seeing that Mikael and Roger were dead, Estes approached Hardy. Hardy asked Estes “what have I done.” Estes replied “you just run over Roger and your daddy.... You killed both of them, ... that’s probably manslaughter 2.”

¶ 11. Hulett testified that, earlier in the day, Gibson had sprayed water into Hardy’s and Mikael’s boats. Hulett testified that Gibson was on a jet-ski at the time. Gibson had maneuvered the back of the jet-ski toward Hardy’s and Mikael’s boats and “gassed on it and sprayed some water [20-30 gallons] in the boat.” Disgusted, Hardy stated that “he wasn’t never coming back to the river.” Hardy then went downriver, toward Ratliffs Ferry. Later that evening, Hulett was at the campsite with Gibson, Estes, Teresa, and Mikael, along with several children. Hulett heard somebody yell “here he' comes.” Hulett heard the boat and turned to run. He said he “made several steps before [Hardy’s boat] struck me.” Hulett testified that he was a carpenter, but he is no longer able to work as a carpenter because his “left arm is disabled” from the incident. On cross-examination, Hulett testified that, after the boat came to rest, “[t]he motor was racing ... and then the motor said ‘whaam,’ and everything got quiet.” Hardy then looked at Hulett and asked “what happened.”

¶ 12. Officer William Hudson testified that Hardy stated “that he was going to go in and spray them or splash them.”

¶ 13. Jason Register witnessed the tragedy alongside Virginia Martin, across the river. He testified that he “witnessed a guy coming around Dead Man’s Curve at a high rate of speed. He go in front of us and made a sharp right and was heading to the bank. I thought he was pulling up and slowing down, but he never did. He just went up on the bank.” Register testified that he had never seen any boats come around Dead Man’s Curve in that manner before. Register said he witnessed Hardy standing in the boat. Register testified that Hardy never yelled and never made any motions with his arms to signal trouble. Finally, Register testified that Hardy did not appear to have any problems operating the boat.

¶ 14. After the State rested and the trial court overruled Hardy’s motion for a directed verdict, Hardy called several witnesses. Captain Calvin Fulton testified that he first viewed the boat on June 1, 2010. He went to Sea-Tow to view the boat as part of an interview with a reporter for a local TV news report. Fulton described the area where the boat was as a “kind of impound yard.” He testified that he told the reporter in the interview that there was “a possibility that there was a steering malfunction.” Fulton testified that he informed the reporter that “whether that fault was pre-impact or post-impact was yet to be determined.” Fulton testified that there was no response when he tried to turn the steering wheel. Fulton testified that he did not find out that the boats were no longer at Sea-Tow until sometime later. On cross-examination, Fulton testified that the “steering cable is like a straw.... When a straw has a hard impact, it makes a kink.” Fulton then pointed out the “kink” in the steering cables as seen in the picture exhibits. Fulton testified that he teaches “accident reconstruction” classes.

¶ 15. Major Jerry Carter testified about the Boating Accident Report Data (BARD). He testified that the report “indicated a possible steering malfunction.” However, the report listed “alcohol use” and “navigation rules violation” as the two causes of the incident. When asked to explain “navigation rules violation,” Carter testified that it meant speeding and operating the boat in a reckless manner.

¶ 16. Officer Chris Harris testified that the department was “not denying that Sea Tow sold [Hardy’s] boat.” But, Harris testified that he did not give them permission to sell the boat. When asked to clarify, he said that the “boats were sold without the knowledge of the Department of Wildlife and Fisheries.”

¶ 17. The jury found Hardy guilty of two counts of culpable negligence manslaughter and one count of aggravated boating under the influence of alcohol. Hardy was sentenced to eighteen years for each count of manslaughter and eight years for aggravated boating for a total of forty-four years, of which eighteen were suspended, leaving twenty-six years to serve. Hardy appeals those convictions.

ISSUES

¶ 18. Hardy raises numerous points of error, restated as follows:

I.Whether the trial court erred in denying the motion to dismiss for law enforcement misconduct and/or gross negligence.
II. Whether Hardy was denied his constitutional right to a speedy trial.
III. Whether the trial court erred in denying Hardy’s motion in li-mine to exclude evidence of alcohol consumption.
IY. Whether the trial Court erred in granting the State’s motion in limine to exclude the DVD.
V. Whether the trial court erred in denying Hardy’s motion for directed verdict due to a defective indictment.
YI. Whether the trial court erred in refusing Jury Instructions D-l, D-2, D-3, D-5, D-6 and D-ll.
VII. Whether there was sufficient evidence of the elements of culpable negligence manslaughter to convict Hardy.
VIII. Whether Hardy’s right against double jeopardy was violated when he was convicted of both culpable negligence manslaughter and aggravated boating under the influence.
IX. Whether the trial court showed bias and/or prejudice to Hardy.

ANALYSIS

I. Whether the trial court erred in denying the motion to dismiss for law enforcement misconduct and/or gross negligence.

¶ 19. “In reviewing rulings of a trial court regarding matters of evidence, relevancy and discovery violations, the standard of review is abuse of discretion.” Montgomery v. State, 891 So.2d 179, 182 (Miss.2004) (citing Conley v. State, 790 So.2d 773, 782 (Miss.2001)).

¶20. “Pursuant to the Due Process Clause of the Fourteenth Amendment to the United States Constitution, criminal prosecutions must comport with prevailing notions of fundamental fairness.” Freeman v. State, 121 So.3d 888, 895 (Miss.2013) (citing California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984)). “[T]he [Supreme] Court has developed ‘what might loosely be called the area of constitutionally guaranteed access to evidence.’” Trombetta, 467 U.S. at 485, 104 S.Ct. 2528 (internal citation omitted). “[T]his group of constitutional privileges delivers exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system.” Freeman, 121 So.3d at 895 (citing Trombetta, 467 U.S. at 485,104 S.Ct. 2528).

¶ 21. Four years after Trombetta, the Supreme Court clarified the duty and held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988). The Court noted its “unwillingness to read the ‘fundamental fairness’ requirement of the Due Process Clause ... as imposing on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance.” Id.

¶ 22. Just last year in an opinion authored by Justice King, this Court unanimously reaffirmed our standard in spoilation-of-evidence cases. Freeman, 121 So.3d at 895. In order to determine whether the State’s loss of evidence violates the defendant’s due-process rights, the defendant must show that:

(1) the evidence in question must possess an exculpatory value that was apparent before the evidence was destroyed; (2) the evidence must be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means; and (3) the prosecution’s destruction of the evidence must have been in bad faith.

Id.

¶ 23. Hardy argues that the trial court violated due process by not dismissing the case due to the spoilation and/or destruction of Hardy’s boat. Hardy relies on two cases, Brady v. Maryland and Banks v. State, neither of which is applicable. Brady speaks to the suppression of evidence, not spoilation cases. Banks deals with destruction of evidence. No allegation of destruction exists here. Finally, Hardy points to Section 99-49-1(4) of the Mississippi Code, which Hardy argues places an affirmative duty on the State to preserve all evidence in a manslaughter ease.

¶ 24. It is clear that the loss of Hardy’s boat was not due to the State’s action, either by disposing of it in bad faith, or by conscious effort to suppress evidence. Thus, we are left with a failure-to-preserve issue. The Supreme Court has held that “the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” Youngblood, 488 U.S. at 57, 109 S.Ct. 333. “We think that requiring a defendant to show bad faith ... limits the extent of the police’s obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it.” Id. at 58, 109 S.Ct. 333. “We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process.” Id.

¶ 25. Pictures of the steering mechanism preserved visual evidence of a severely kinked steering cable. No evidence was offered that Hardy was unable to locate the boat, only that the boat was no longer at Sportsman’s Marina. The State was ambivalent on Hardy’s claim of steering failure and conceded there was a possibility of steering failure, as reflected in their reports and testimony. The State’s case relied on eyewitness testimony and the investigating officers to establish Hardy’s precollision actions. Ample evidence was presented to the jury that Hardy operated the boat while impaired, while standing, at excessive speed; failed to reduce his speed; failed to warn others; and stated several times that he was only going to splash the victims. Assuming steering failure occurred after he pointed the speeding boat toward the victims does nothing to exonerate Hardy of the litany of actions that created the fatal collision. Assuming a steering failure occurred (not one person witnessed such an event) would not absolve him of his failure to reduce his speed and to provide warning to the victims and others in the immediate vicinity. Unlike Banks, there is not a scintilla of evidence in the case sub judice that the State acted to prevent the defendant from locating the boat. No proof was offered of destruction or suppression of the boat by the State. Therefore, the trial court did not err in denying Hardy’s Motion to Dismiss for Law Enforcement Misconduct and/or Gross Negligence.

II. Whether Hardy was denied his constitutional right to a speedy trial.

¶ 26. Following Barker v. Win-go, this Court considers four factors when a defendant alleges that his or her constitutional right to a speedy trial has been violated: (1) the length of delay; (2) the reason for the delay; (3) whether the defendant asserted his right; and (4) prejudice to the defendant. Ben v. State, 95 So.3d 1236, 1242 (Miss.2012). “None of these four factors is ‘a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial.’ ” Id. “All, rather, are related and must be considered alongside other relevant circumstances.” Id.

¶ 27. We analyze each of the four factors in turn.

i Length of the Delay

¶ 28. “The Sixth Amendment speedy-trial right attaches at the time of formal indictment or information or arrest — whichever occurs first.” Id. “In Mississippi, a delay of more than eight months is considered presumptively prejudicial.” Id.

¶ 29. Here, Hardy was indicted on June 16, 2011. Four hundred eighty-five days passed before trial commenced. As the delay exceeded eight months, this prong weighs against the State.

ii Reason for the Delay
¶ 30. We have stated:
Deliberate attempts to delay the trial in order to hamper the defense are weighed heavily against the State. On the other hand, “[a] more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.”

Id. at 1242-48 (internal citations omitted).

¶ 31. The trial originally was set for February 13, 2012. At a pretrial hearing held on February 6, 2012, the trial court denied Hardy’s motion to dismiss for law enforcement’s misconduct and/or gross negligence. Hardy advised the court of his intent to file an interlocutory appeal. The trial court postponed the scheduled trial to accommodate Hardy’s intended interlocutory appeal. However, Hardy never presented an order, and never filed an interlocutory appeal. Instead, on March 7, 2012, both parties entered an agreed order continuing the trial to August 13, 2012. This delay was prompted by Hardy, and he agreed to the continuance. This fáctor does not weigh against either party, as the only unexplained delay was slightly less than eight months.

¶ 32. On August 13, 2012, the State moved to postpone trial to August 20, 2012, due to a scheduling conflict with one of the State’s witnesses. That same day, the parties entered another agreed order postponing the trial to October 15, 2012. This prong weighs slightly, if at all, against the State.

Hi. Assertion of the Right to a S-peedy Trial

¶ 33. “Ordinarily, a defendant’s failure to assert his right to a speedy trial weighs heavily against him.” Id. at 1244. “Indeed, this Court has ‘repeatedly held that a defendant’s failure to assert his right to a speedy trial must be weighed against him.’ ” Id. (citations omitted).

¶ 34. Here, Hardy filed a motion for speedy trial and a demand for speedy trial on August 9, 2012, three days before the trial date. The trial court did not rule on the motion as trial was already scheduled.

iv. Prejudice to Hardy

¶ 35. We have held:

Prejudice must be assessed in light of the interests that are designed to be protected under the right to a speedy trial. Barker identifies three such interests: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” The last is the most serious. Possible impairment to one’s defense includes the unavailability of witnesses or witnesses’ loss of memory.

Id. at 1245-46 (internal citations omitted).

¶ 36. Hardy argues that the delay caused the loss of his boat. Hardy attributes no other prejudice. This argument seems a bit disingenuous, given that Hardy’s attorney alleged the boat was sold before Hardy’s first trial setting. We discern no prejudice. Therefore, after weighing all of the factors, this issue is without merit.

III. Whether the trial court erred in denying Hardy’s motion in li-mine to exclude evidence of alcohol consumption.

¶ 37. “Determining the relevancy and admissibility of evidence is within the discretion of the trial judge, and we will reverse only in the event that discretion has been abused.” Abrams v. Marlin Firearms Co., 838 So.2d 975, 979 (Miss.2003). Hardy argues that the trial court erred in denying Hardy’s Motion in Limine to exclude evidence of alcohol consumption.

' ¶ 38. Under our rules of evidence, “the blood alcohol content of the defendant goes to the state of the defendant’s intoxication, and this is relevant and probative on the issue of whether the defendant is guilty of criminally culpable negligence.” Whitehurst v. State, 540 So.2d 1319, 1323 (Miss.1989). “Of course, being intoxicated does not create a prima facie case of culpably negligent manslaughter, but being under the influence is certainly a factor if it can be further established that the intoxication proximately contributed both to the establishment of negligence and to the resulting death.” Id.

¶ 39. We find no error in allowing the jury to consider Hardy’s impairment. Hardy admitted to drinking six beers prior to the collision. Empty beer cans were found in his boat. A witness saw him with a beer can in his hand as the boat sped in a direct path toward the victims. Wester-field described Hardy as “impaired” and concluded alcohol was as a contributing factor to the collision. Hardy’s admission of consumption of alcohol is probative of impairment. While Hardy’s blood alcohol content was .09 an hour-and-a-half after crashing into Gibson and Mikael, whether he was impaired at the time of the collision is a jury issue. This Court has long held that such evidence is relevant and highly probative. Abrams v. Marlin Firearms Co., 838 So.2d 975, 979 (Miss.2003); Estate of Hunter v. Gen. Motors Corp., 729 So.2d 1264, 1277 (Miss.1999). The jury was properly instructed that alcohol consumption in and of itself does not constitute culpable negligence, but taken in conjunction with all other factors, it can. As such, this issue is without merit.

IV. Whether the trial court erred in granting the State’s motion in limine to exclude the DVD.

¶ 40. Hardy argues that the trial court committed reversible error by granting the State’s motion in limine to exclude the DVD of a news telecast. Hardy asserts that he should have been allowed to demonstrate that the steering mechanism was broken. Still photos and the officer’s testimony confirmed the steering cable was severely damaged and not operative. The DVD is a tv news report with the reporter describing the scene and collision and interviewing Captain Fulton. The video shows a severely bent and broken steering cable on Hardy’s boat. ■

¶ 41. After extensive argument, the trial judge ruled that Hardy could ask Captain Fulton the “same questions [the reporter] asked him,” but could not play the video to the jury due to its extrinsic nature and hearsay statements. The judge ruled that the video could be used to impeach Fulton if he answered differently at trial. At trial, Fulton’s testimony was consistent with his answers on the DVD. Fulton testified that his “exact words to [the reporter] was there is a possibility there was a steering malfunction.” Fulton testified that the steering cable on Brad’s boat had a “kink” in it, like a straw.

¶ 42. We find no error in the trial court’s decision not to allow the DVD into evidence. “A trial judge enjoys a great deal of discretion as to the. relevancy and admissibility of evidence.” Green v. State, 89 So.3d 543, 549 (Miss.2012). The trial court did not prejudice Hardy’s case since Fulton’s live testimony did not conflict with the statements made during the interview or the photos of the steering cable. Therefore, this issue is without merit.

Y. Whether the trial court erred in denying Hardy’s motion for directed verdict due to a defective indictment.

¶43. “A review of the legal sufficiency of an indictment must be reviewed de novo.” Young v. State, 119 So.3d 309, 313 (Miss.2013). “An indictment must contain (1) the essential elements of the crime charged, (2) sufficient facts to fairly inform the defendant of the charge which he must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense.” Id.

¶44. Hardy argues that the indictments for Counts I and II charged only misdemeanor offenses and failed to allege any conduct by the defendant or overt act. Hardy argues that the indictment in Count III is insufficient because it failed to allege a deadly weapon pursuant to Section 97-3-7(2)(b). See Miss.Code Ann. § 97-3-7(2)(b) (Rev.2006).

¶45. We find no error in the indictments. Hardy was indicted for two counts of culpable-negligence manslaughter pursuant to Section 97-3-47 of the Mississippi Code, and one count of aggravated assault pursuant to Section 97-3-7(2)(a) of the Mississippi Code.

¶ 46. Counts One and Two of the indictment contain the essential elements of culpable-negligence manslaughter and fairly inform the defendant of the charges. Section 97-3-47 defines manslaughter as “every other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in this title, shall be manslaughter.” Miss.Code Ann. § 97-3-47 (Rev.2006). The indictment contains the name of the accused (Hardy), the date of the incident (May 30, 2010), the county (Rankin), the crime charged (manslaughter) and the signature of the foreman. The indictment also states that Hardy unlawfully killed (“unlawfully and feloniously, kill and slay,”) two specific victims, Mikeal Hardy and Roger Gibson, “by culpable negligence ... by negligent operation of a boat.” Thus, the indictment contains the essential elements of felony culpable-negligence manslaughter and fairly informed Hardy of the charges against him to allow him to prepare an adequate defense. See Young v. State, 119 So.3d 309, 313 (Miss.2013); Gatlin v. State, 724 So.2d 359, 366 (Miss.1998).

¶ 47. Likewise, Count Three of the indictment is sufficient. Hardy was indicted on Count Three for aggravated assault pursuant to Section 97-3-7(2)(a). At the time, Section 97-3-7(2) stated “[a] person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.... ” Miss.Code Ann. § 97-3-7(2) (Rev.2006). The indictment stated that Hardy “unlawfully, felo-niously, purposely or knowingly attempted] to cause serious bodily injury to William K. Hulett ... by colliding his boat into ... Hulett under circumstances manifesting extreme indifference to the value of human life.” Thus, like the first two counts, Count Three contains the essential elements of the crime for which Hardy was indicted and fairly informs him of the charge. Section 97-3-7(2)(a) does not require the use of a “deadly weapon” like 97-3-7(2)(b). Thus, Hardy’s argument at trial, that a boat is not a deadly weapon, is irrelevant.

¶ 48. All three counts state the essential elements of the crimes charged; thus, the trial court did not err by denying Hardy’s motion to dismiss.

VI. Whether the trial court erred in refusing Jury Instructions D-l, D-2, D-3, D-5, D-6 and D-ll.

¶ 49. The standard of review for challenges to jury instructions is as follows:

Jury instructions are to be read together and taken as a whole with no one instruction taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case, however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.

Austin v. State, 784 So.2d 186, 192 (Miss.2001) (citations omitted).

¶ 50. Hardy argues that the trial court committed reversible error by refusing instructions D-l, D-2, D-3, D-5, D-6, and D-ll. Hardy argues that, since the boat was a key piece of evidence, the jury should have received jury instructions D-l, D-2, and D-3, which would have allowed the jury to draw inferences against the State for losing the boat, a legal issue which the court rejected in Hardy’s motion to dismiss and for which Hardy failed to sustain his burden. As for D-5, Hardy argues that it is a correct definition of the degree of negligence required in a culpable-negligence case. Finally, Hardy argues that D-6 and D-11 should have been granted in order to properly instruct the jury on how to weigh the presence of alcohol.

¶ 51. The State counters that there is no evidentiary basis for the spoilation instructions (D-l, 2, and 3) since there was no showing of bad faith or intentional destruction of the boat on behalf of the State. As for D-5, the State asserts that the trial court correctly accepted S-8A instead of D-5.

¶ 52. We find no error in the trial court’s denial of Hardy’s proposed instructions. D-l, D-2, and D-3 lack evidentiary foundation for spoilation-of-evidence instructions. Murray v. State, 849 So.2d 1281,1286-87 (Miss.2003); see Johnston v. State, 618 So.2d 90, 92 (Miss.1993) (where “there had been no intentional destruction of the evidence ... [tjhere is therefore no inference that the evidence would have been unfavorable to the State.”). Likewise, the trial court properly denied D-5, as S-8A is a proper instruction on culpable-negligence manslaughter and this Court has held that there is no requirement for a jury instruction distinguishing culpable negligence from civil negligence. Robinson v. State, 571 So.2d 275, 277 (Miss.1990); Gebben v. State, 108 So.3d 956, 968 (Miss.Ct.App.2012). However, this Court has noted that the giving of a comparison instruction “should be encouraged.” Id. Finally, the trial judge did not err by denying D-6 and D-ll, as S-9a, which incorporated D-6 and D-ll, is a correct statement of law which properly instructed the jury’s consideration of alcohol.

VII. Whether there was sufficient evidence of the elements of culpable-negligence manslaughter to convict Hardy.

¶ 53. The standard of review for the legal sufficiency of the evidence is as follows:

this Court will reverse and render only if the facts and inferences “ ‘point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,’ .... ” The evidence will be deemed sufficient if “ ‘having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,’ .... ” The relevant question is whether “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ”
This Court considers the evidence in the light most favorable to the state. The state receives the benefit of all favorable inferences that may reasonably be drawn from the evidence.

Hughes v. State, 983 So.2d 270, 275-76 (Miss.2008) (internal citations omitted). Hardy argues that the steering-cable malfunction was a intervening superseding cause which absolves him of any criminally negligent behavior.

¶ 54. The evidence was sufficient to support Hardy’s convictions. Hardy admitted he operated the boat after drinking approximately six beers. Witnesses described him as “impaired.” Beyond his admissions, several eyewitnesses testified that Hardy’s boat was speeding, and rather than slowing down, Hardy left the throttle in the wide-open position. In short, sufficient uncontradicted evidence demonstrated that Hardy operated the boat in a reckless manner (speeding, failing to reduce speed when approaching a group of persons [adults and children] and operating from a standing position) all while under the influence. Considering the evidence in the light most favorable to the State, we find that reasonable, fair-minded jurors could have found Hardy guilty on all three counts. Goldman v. State, 406 So.2d 816, 819 (Miss.1981); of. Evans v. State, 562 So.2d 91, 94-95 (Miss.1990); Craig v. State, 520 So.2d 487, 488-89 (Miss.1988). Thus, this issue is without merit.

VIII. Whether Hardy’s right against double jeopardy was violated when he was convicted of both culpable-negligence manslaughter and aggravated boating under the influence.

¶ 55. “We apply a de novo standard of review to claims of double jeopardy.” Kelly v. State, 80 So.3d 802, 804 (Miss.2012).

The constitutional protection at issue, commonly known as the double-jeopardy clause, is enforceable against the states through the Fourteenth Amendment. Its protection prohibits, inter alia, multiple punishments for the same offense .... a conviction can withstand double-jeopardy analysis only if each offense contains an element not contained in the other.... If they do not, the two offenses are, for double-jeopardy purposes, considered the same offense, barring prosecution and punishment for both.

Boyd v. State, 977 So.2d 329, 334 (Miss.2008) (internal citations omitted).

¶ 56. Hardy argues that aggravated boating under the influence is a lesser-included offense of culpable-negligence manslaughter. Thus, Hardy argues that double jeopardy prevents him from being convicted and sentenced for the two counts of culpable-negligence manslaughter.

¶ 57. Hardy’s double-jeopardy claim is inapplicable in the case sub judice. Double jeopardy does not arise, as Hardy was convicted of aggravated boating under the influence on the William Hulett indictment, not the Mikael Hardy or Roger Gibson manslaughter indictments. In other words, Hardy was not convicted of both manslaughter and aggravated boating under the influence as to the same victim. Hardy’s conviction for aggravated boating under the influence required proof of a fact, an act against Hulett, which the elements necessary to convict in the two manslaughter charges did not require. Thus, this issue is without merit.

IX. Whether the trial court showed bias and/or prejudice to Hardy.

¶ 58. Hardy directs this Court to two statements from the trial judge over the course of the three-day trial as evidence that the trial judge acted with bias and prejudice. Both statements occurred outside the presence of the jury. Based on a review of the entire trial, we find no evidence of any bias or prejudice on the part of the trial court.

CONCLUSION

¶ 59. We find Hardy’s issues are without merit. We affirm his conviction and sentence.

¶ 60. COUNT I: CONVICTION OF CULPABLE NEGLIGENCE MANSLAUGHTER AND SENTENCE OF EIGHTEEN (18) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF CULPABLE NEGLIGENCE MANSLAUGHTER AND SENTENCE OF EIGHTEEN (18) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT III: CONVICTION OF AGGRAVATED BOATING UNDER THE INFLUENCE OF ALCOHOL AS A LESSER INCLUDED OFFENSE OF AGGRAVATED ASSAULT AND SENTENCE OF EIGHT (8) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IMPOSED IN

COUNT I SHALL RUN CONSECUTIVELY TO SENTENCE IMPOSED IN COUNT II AND SENTENCE IN COUNT II SHALL RUN CONSECUTIVELY TO SENTENCE IMPOSED IN COUNT III. THE LAST EIGHTEEN (18) YEARS IN COUNT I SHALL BE SUSPENDED AND APPELLANT SHALL BE RELEASED AND SERVE FIVE (5) YEARS ON SUPERVISED PROBATION, WITH CONDITIONS. APPELLANT SHALL RECEIVE CREDIT FOR TIME SERVED IN PRETRIAL DETAINMENT. APPELLANT SHALL PAY COURT COSTS, FEES AND ASSESSMENTS OF $2,431.50, A FINE OF $10,000 IN COUNT I, A FINE OF $10,000 IN COUNT II, AND A FINE OF $10,000 IN COUNT III WITHIN TWO (2) YEARS AFTER RELEASE FROM CUSTODY.

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

      . Dead Man's Curve is a sharp curve in the Pearl River (akin to a ninety-degree angle) that is immediately downriver from the campsite involved in the case sub judice.

        . Mikael was the father of the defendant.

      .At the time, the legal limit for operating a boat was .10. The legal limit was amended to .08 on July 1, 2010. Miss.Code Ann. § 59-23-7(l)(c) (Rev.2013).

      . Reflected in the record as the "Sportsmen Mariner.”

      . This is a report required by the United States Coast Guard.

        . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . Banks v. State, 725 So.2d 711 (Miss.1997)

      . Section 99-49-1(4) of the Mississippi Code imposes a duty on the State to preserve evidence that is in the possession of the State. Miss.Code Ann. § 99-49-1(4) (Rev.2007).
      The boat was never moved from Sportsman's Marina. The State was never notified it was being sold. The statute governing its sale does not require notice to the State, only to the registered owner. See Miss.Code Ann. § 85-7-251 (Rev.2011). Thus, Section 99-49-1(4) is not applicable.

      . Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

      . Hardy was detained and transported to a location to take the field sobriety test. He was later released without being charged with a crime.

      . Section 97-3-7 of the Mississippi Code has since been amended. 2014 Miss. Laws WL No. 175 (S.B.2476).

      . Count One is as follows: "Brad Hardy, late of the county aforesaid, on or about the 30th day of May, 2010, in the county aforesaid and within the jurisdiction of this Court did unlawfully and feloniously, kill and slay Mikeal W. Hardy, a human being, by culpable negligence, without authority of law, by the negligent operation of a boat, in violation of Miss.Code Ann. 97-3-47(1972), as amended.”

      .Count Two is as follows: “And based upon a series of acts connected together and constituting parts of a common scheme, and plan, Brad Hardy, late of the county aforesaid, on or about the 30th day of May, 2010, in the county aforesaid and within the jurisdiction of this Court did unlawfully and feloniously, kill and slay Roger P. Gibson, a human being, by culpable negligence, without authority of law, by the negligent operation of a boat, in violation of Miss.Code Ann. 97-3-47(1972), as amended.”

      . Count Three is as follows: "And, based upon a series of acts connected together and constituting parts of a common scheme, and plan, Brad Hardy, late of the county aforesaid, on or about the 30th day of May, 2010, in the county aforesaid and within the jurisdiction of this Court, did unlawfully, felo-niously, purposely or knowingly attempt to cause serious bodily injury to William K. Hu-lett, a human being, by colliding his boat into William K. Hulett under circumstances manifesting extreme indifference to the value of human life, in violation of Mississippi Code Annotated Section 97-3-7(2)(a)(1972), as amended."

      . "The Court instructs the jury that if you find that the State has lost, destroyed, or failed to preserve evidence whose contents or quality are important to the issues in this case, then you should weight the explanation, if any, given for the loss or unavailability of the evidence. If you find that any such explanation is inadequate, then you may draw an inference unfavorable to the State, which in itself may create a reasonable doubt as to the defendant’s guilt.”

      . D-2 is identical to D-l supra.

      . "The Court instructs the jury that if you determine by a preponderance of the evidence that State of Mississippi through it’s [sic] actions or, inactions caused the boai/evidence to become either destroyed, misplaced, or unavailable then you shall infer that the boat/evidence would be unfavorable to the State, and the jury may give to such evidence whatever weight, worth and credibility the jury determines that said evidence is entitled.”

      . "The Court instructs the jury that culpable negligence is negligence of a higher degree than that which in civil cases is held to be gross negligence, and must be a negligence of a degree so gross as to be tantamount to a wanton disregard or utter indifference to the safety of human life and the conscious and wanton or reckless disregard of the probabilities of fatal consequences to others as a result of a willful creation of an unreasonable risk and that this shall be so clearly evidence as to place it beyond every reasonable doubt.”

      . "The Court instructs the jury that one may be negligent while acting lawfully. One may violate the law and yet not be culpably negligent in fact. For driving under the influence of alcohol to be a factor in a case involving culpable negligence it must create an abnormal mental and physical condition which tends to deprive one of the clearness of intellect and control of himself which he would otherwise possess.”

      . "The Court instructs the jury that driving while intoxicated is a crime in and of itself, but does not, by itself, constitute culpable negligence or otherwise make an act of simple negligence into an act of culpable negligence and in order for driving under the influence of alcohol to be a factor involving culpable negligence it must create an abnormal mental and physical condition which tends to deprive one of the clearness of intellect and control of himself which he would otherwise possess."

      . Hopson v. State, 615 So.2d 576, 578-79 (Miss.1993).


author: CHANDLER, Justice, for the Court:

text:
    Ryan Allen ABEYTA a/k/a Ryan A. Abeyta a/k/a Ryan Abeyta v. STATE of Mississippi.
    No. 2013-KA-00495-SCT.
    Supreme Court of Mississippi.
    May 1, 2014.

      Office of State Public Defender by Benjamin Allen Súber, attorney for appellant.
    Office of the Attorney General by Melanie Dotson Thomas, attorney for appellee.
    Before WALLER, C.J., CHANDLER and KING, JJ.
   CHANDLER, Justice, for the Court:

¶ 1. A Harrison County jury convicted Ryan Abeyta of the murder of his mother, and the Circuit Court of Harrison County sentenced him to life in the custody of the Mississippi Department of Corrections. Abeyta appeals, arguing that he was entitled to a jury instruction on heat-of-passion manslaughter, that the evidence of deliberate design was insufficient to support the verdict, and that the trial court abused its discretion by admitting gruesome photographs of the victim. We find that Abeyta’s issues are without merit and affirm the judgment of the trial court.

FACTS

¶ 2. On October 10, 2010, Abeyta, age twenty-nine, was living with his mother, Pamela Santiago, in Gulfport, Mississippi. According to Pamela’s best friend and neighbor, Sheila Ford, Abeyta was a heavy drug and alcohol user who routinely took Santiago’s debit and credit cards to purchase drinks at a nearby bar. Ford testified that she visited Santiago on the morning of October 10. During the visit, Santiago noticed that her debit card was missing. Ford said that Santiago was upset because Abeyta’s unauthorized use of the debit card had been a persistent problem. After Ford left, Abeyta returned home and had a conversation with his mother about the debit card. Then, he brutally beat her and strangled her to death.

¶ 3. A fitness walker discovered Santiago’s body wrapped in a sheet in the woods near the Biloxi River. The forensic pathologist, Dr. Paul McGarry, conducted an autopsy of Santiago. He identified the cause of death as asphyxia from strangulation. He testified that he found evidence of blunt-force trauma to Santiago’s face, neck, and upper chest. She had been struck five to six times in the face, and three to four times in the side and back of the head. Her neck, face, and eyes showed the classic signs of manual strangulation, and her chest bore bruises indicative of being pressed against a surface and strangled. Santiago had defensive wounds.

¶4. A video of Santiago at Walmart showed she was alive at 1:53 p.m. on October 10. Ford testified that, a little after 3:00 p.m. that day, Abeyta came over and he was sweaty and crying. He hugged her, said “I’m sorry,” and asked her for money. At about 6:30 p.m., Ford observed Abeyta and another man outside Abeyta’s residence.

¶ 5. The police searched Santiago’s home. They found drops of dried blood in an office. In other rooms, they found white powder, syringes, marijuana residue, empty alcohol bottles, and sleeping pills. The police developed Abeyta as a suspect, and Detective Kelly Clark called him. He said that a mob from New Mexico had killed his mother and had threatened to kill him next if he did not return their money. He told Clark that he was in Louisiana and would drive back to Mississippi to meet the police. But Abeyta never turned himself in; by tracking his mother’s cell phone, the police located him in Alabama, where he was arrested by a United States Marshal’s task force. Abey-ta was driving his mother’s car.

¶ 6. On October 12, 2011, Detective Jason Gouin interviewed Abeyta after securing his waiver of rights. Initially, Abeyta blamed his mother’s death on a mob from New Mexico. Later, he admitted he had strangled her to death. He stated that he had been shooting cocaine. His mother was sitting behind her desk in her office, and he talked to her about the debit card. He said she was upset because he had taken the card and was drinking so much, and he “lost it” and choked her. Abeyta said that he sat with the body for awhile, then wrapped it in a sheet. He stated that he called a friend who agreed to help him dispose of the body. That evening, he and the friend put Santiago’s body in her car, drove to the woods, and dumped the body.

¶ 7. Abeyta’s trial testimony varied from his statement to Gouin. Abeyta testified that, when he returned home on October 10, his mother asked him about the debit card, and he admitted that he had taken it. He testified that he went to his room and shot cocaine. Later, he was in the living room drinking, and he had a “conversation with the devil” in which he contemplated killing Santiago. He went to his mother’s office and apologized to her for taking the debit card. He testified that then, he blacked out, and when he came to he discovered that he had killed his mother. Abeyta testified that at first he was so distraught he tried to overdose on cocaine, but ultimately he decided to cover up the crime.

¶8. The jury found Abeyta guilty of murder.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED BY DENYING A JURY INSTRUCTION ON HEAT-OF-PASSION MANSLAUGHTER.

¶ 9. Abeyta argues that the trial court erroneously denied his requested jury instruction on the lesser-included offense of heat-of-passion manslaughter. See Miss.Code Ann. § 97-3-19(3) (Rev. 2006) (providing that manslaughter is a lesser-included offense of murder). On review of the denial of a jury instruction, this Court “review[s] the jury instructions as a whole ‘to determine if the jury was properly instructed.’ ” Flowers v. State, 51 So.3d 911 (Miss.2010) (quoting Rubenstein v. State, 941 So.2d 735, 787 (Miss.2006)). “A party has the right to have the jury instructed on all material issues presented by the evidence; generally, an instruction should be granted if it correctly states the law, is supported by the evidence, and is not repetitious.” Pauley v. State, 113 So.3d 557, 564 (Miss.2013). A party is entitled to a jury instruction on a lesser-included offense if the instruction has an evidentiary foundation. Batiste v. State, 121 So.3d 808, 844 (Miss.2013). The trial court must grant a lesser-included-offense instruction unless the trial judge — and ultimately this Court — can say, considering the evidence and all reasonable inferences that can be drawn therefrom in the light most favorable to the accused, that no reasonable jury could find the defendant guilty of the lesser-included offense. Id. (quoting Anderson v. State, 79 So.3d 501, 505 (Miss.2012)).

¶ 10. Mississippi Code Section 97-3-35 provides that “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter.” Miss.Code Ann. § 97-3-35 (Rev.2006). “Heat of passion” is

[a] state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.

Batiste, 121 So.3d at 844 (quoting McCune v. State, 989 So.2d 310, 319 (Miss.2008)). That the accused subjectively experienced passion and anger is not enough to reduce a killing to manslaughter. Rather, the impassioned reaction of the accused must have been reasonable: “the passion felt by the person committing the act should be superinduced by some insult, provocation, or injury, which would naturally and instantly produce, in the minds of ordinarily constituted men, the highest degree of exasperation.” Agnew v. State, 783 So.2d 699, 703 (Miss.2001). “[T]here must be such circumstances as would indicate that a normal mind would be roused to the extent that reason is overthrown and passion usurps the mind destroying judgment.” Id. Additionally, “words alone and disagreements among people are not enough to invoke the passion required for this defense. ‘Mere words, no matter how provocative, are insufficient to reduce an intentional and unjustifiable homicide from murder to manslaughter.’ ” Phillips v. State, 794 So.2d 1034, 1037 (Miss.2001) (quoting Gates v. State, 484 So.2d 1002 (Miss.1986)).

¶ 11. The trial court found that there was no evidentiary basis for Abeyta’s proffered jury instruction on heat-of-passion manslaughter. Abeyta contends that his statement to Gouin, in which he admitted that, when he and his mother were discussing the debit card he “lost it” and choked her, established an evidentiary foundation for a heat-of-passion-manslaughter instruction. Abeyta points to Ford’s testimony that she had advised Santiago to “cut off’ Abeyta financially. Abeyta contends that it reasonably may be inferred from this testimony that Santiago did, indeed, threaten to cut him off, and that this threat constituted reasonable provocation. But the record does not support this inference; Abeyta never said that Santiago threatened to cut him off, and Ford testified that Santiago “coddled” Abeyta and that she had never witnessed Santiago provoke, insult, or injure him. Moreover, because mere words can never constitute reasonable provocation, a threat to cut off an adult child financially does not rise to the level of reasonable provocation sufficient to reduce murder to manslaughter.

¶ 12. Additionally, “[d]enial of a manslaughter instruction is proper where the record is clear that the decedent was [killed] with malice or deliberate design.” Batiste, 121 So.3d at 845 (quoting Simmons v. State, 805 So.2d 452, 474 (Miss.2001)). The pathologist testified that Santiago had been struck five to six times in the face, and three to four times in the side and back of the head, and that she had been strangled for more than one minute before succumbing. Abeyta testified that he had contemplated killing Santiago, then followed through. The evidence was overwhelming that Abeyta killed his mother with deliberate design. We find that Abeyta was not entitled to a heat-of-passion-manslaughter instruction.

¶ 13. Abeyta also argues that his testimony that he expressed remorse immediately after killing Santiago was a sufficient basis for the proffered heat-of-passion-manslaughter instruction. He cites Roberts v. State, 458- So.2d 719, 721 (Miss. 1984), where the defendant was convicted of murder for the shooting death of his wife. After the killing, the defendant was heard to say “I didn’t mean to do it, baby, my baby,” and the Court, in dicta, stated that this expression of remorse was enough to justify a manslaughter instruction. Id. Not only was the Court’s statement dicta, but the Court did not consider whether the statement justified a heat-of-passion-manslaughter instruction rather than a manslaughter instruction on some other theory. We find that Roberts did not entitle Abeyta to a heat-of-passion-manslaughter instruction.

II. WHETHER THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE MURDER CONVICTION.

¶ 14. Abeyta filed a motion for judgment notwithstanding the verdict (JNOV), which was denied by the trial court. “A motion for JNOV challenges the legal sufficiency of the evidence.” Taylor v. State, 110 So.3d 776, 782 (Miss.2013). In ruling on a motion for JNOV, the court considers the credible evidence in the light most favorable to the verdict. Id. After considering the evidence in the light most favorable to the verdict, if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,” we will affirm. Bush v. State, 895 So.2d 836, 843 (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). But if the facts and inferences, so considered, “point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty,” we must reverse and render. Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶ 15. Abeyta was found guilty of deliberate-design murder. Mississippi Code Section 97-3-19(1) provides that “the killing of a human being without the authority of law by any means or in any manner shall be murder ... [w]hen done with deliberate design to effect the death of the person killed....” Miss.Code Ann. § 97-3-19(l)(a) (Rev.2006). Abeyta challenges the sufficiency of the evidence supporting the element of deliberate design. The element of deliberate design “connotes an intent to kill.” Wilson v. State, 936 So.2d 357, 364 (Miss.2006). The term “deliberate” means “a full awareness of what one is doing and generally implies careful and unhurried consideration of the consequences.” Id. The term “design” “means to calculate, plan or contemplate.” Id. A person may form a deliberate design to kill quickly, even moments before the fatal act. Id.

¶ 16. Abeyta recognizes that his trial testimony, in which he admitted to contemplating killing Santiago, established a design to kill. But he argues the evidence was insufficient to prove that he acted deliberately; he contends that his drug abuse before the crime prevented his full awareness of his actions, as shown by testimony that he blacked out during the crime and that, after the crime, he was remorseful and attempted suicide.

¶ 17. We find that the evidence was sufficient to support the element of deliberate design. Abeyta admitted that he had killed Santiago. Dr. McGarry’s testimony that Santiago had been beaten severely and then strangled for more than one minute was strong evidence that Abeyta had formed the deliberate design to kill. Abeyta testified that he had contemplated killing Santiago and then followed through while in a blackout induced by his voluntary ingestion of illegal drugs. We have held that a defendant’s voluntary intoxication is not a defense to murder. Moore v. State, 859 So.2d 379, 385 (Miss.2003) (citing Greenlee v. State, 725 So.2d 816, 822-23 (Miss. 1998)). The rule is that “[i]f a defendant, when sober, is capable of distinguishing between right and wrong, and the defendant voluntarily deprives himself of the ability to distinguish between right and wrong by reason of becoming intoxicated and commits an offense while in that condition, he is criminally responsible for such acts.” Greenlee, 725 So.2d at 823. Therefore, Abeyta’s voluntary ingestion of drugs and alcohol did not negate the element of deliberate design. Considering all the evidence and reasonable inferences in the light most favorable to the verdict, a rational jury could have found Abeyta guilty of deliberate-design murder.

III. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY ADMITTING GRUESOME PHOTOGRAPHS OF THE VICTIM.

¶ 18. The State proffered seven photographs of Santiago’s body taken before the autopsy, along with the testimony of Dr. McGarry that the photographs would aid him in describing Santiago’s injuries to the jury. Abeyta objected to the photographs on the grounds that they were unduly inflammatory and prejudicial, and cumulative of Dr. McGarry’s testimony. The trial court admitted a photograph of Santiago’s bruised face, a close-up photograph of her hands showing defensive wounds, and another close-up photograph of her bruised neck and chest. The State wanted another facial photograph admitted to show the hemorrhaging of the eyes, and the trial court ordered that it be cropped to show just the eyes. The trial court excluded the three other photographs as cumulative of the ones admitted into evidence.

¶ 19. Abeyta argues that the admission of the four photographs was an abuse of discretion. He renews his arguments that the photographs were cumulative of Dr. McGarry’s testimony and inflammatory and prejudicial. The admissibility of photographs is a matter •within the trial court’s sound discretion. Conners v. State, 92 So.3d 676, 686 (Miss.2012). Photographs are admissible as long as they have an evidentiary purpose. Barfield v. State, 22 So.3d 1175, 1181 (Miss.2009). But photographs that are gruesome, lack an evidentiary purpose, and serve only to inflame the passions of the jury should not be admitted. Id. Photographs have evidentiary value when they “(1) aid in describing the circumstances of the killing; (2) describe the location of the body and cause of death; [and] (3) supplement or [clarify] witness testimony.” Id. (quoting McIntosh v. State, 917 So.2d 78, 83 (Miss.2005)).

¶20. The four photographs of Santiago’s body each showed different injuries to different areas of the body. The facial photograph assisted Dr. McGarry in testifying about Santiago’s bruising from blows to the face and head. Dr. McGarry testified that the photograph of the neck and chest showed bruising in a V-pattern, indicating that Abeyta was on top of Santiago when he strangled her. Dr. McGar-ry testified that another photograph showed a defensive wound to one of Santiago’s fingers, and that the photograph of her eyes showed hemorrhaging, a classic sign of strangulation. The trial court was very careful in avoiding the admission of cumulative photographs, and all those admitted had evidentiary value because they supplemented and clarified Dr. McGarry’s testimony and aided in describing the circumstances of the killing. Also, the photographs were highly probative of deliberate design, because they aided Dr. McGarry in describing the number of injuries and the length of time it would have taken for Santiago to die. The trial court’s admission of the photographs was not an abuse of discretion.

CONCLUSION

¶ 21. This Court holds that Abeyta was not entitled to a jury instruction on heat-of-passion manslaughter, the evidence was sufficient to support the verdict, and the trial court did not abuse its discretion by admitting gruesome photographs of the victim. We affirm the judgment of the Circuit Court of Harrison County.

¶ 22. CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. APPELLANT SHALL BE GIVEN CREDIT FOR ANY AND ALL TIME SERVED AS TO THIS CHARGE.


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    SAFECHOICE, INC., Appellant v. The CITY OF McCOMB, Mississippi, Appellee.
    No. 2013-IA-00040-SCT.
    Supreme Court of Mississippi.
    May 1, 2014.
   ORDER

Before the en banc Court is Safechoice,

Inc.’s interlocutory appeal from the December 18, 2012, order of the County Court of Pike County, Mississippi, denying its “Motion for Summary Judgment.” In its petition for interlocutory appeal, Safe-choice presented two issues:

(I) Whether. SafeChoice, a foreign corporation, is able to defend this action filed by McComb and to pursue compulsory counterclaims against McComb, despite not having obtained a Certificate of Authority from the Secretary of State to conduct business in the State of Mississippi?

(II) Whether the Court’s overruling of SafeChoice’s Motion for Summary Judgment and failure to consider Request for Admission Number 4 admitted was proper?

After further review, the record reveals that the county court’s December 18 order did not dismiss Safechoiee’s counterclaims. As there is no order dismissing those claims, issue I is not properly before the Court.

Issue II asks this Court to address a matter of discovery on interlocutory appeal. “This Court has a history of applying strict standards for interlocutory appeals” such that “[r]arely will we entertain an interlocutory appeal regarding a discovery matter.” Blossom v. Blossom, 66 So.3d 124, 126-27 (Miss.2011) (quoting Miss. State Bar v. Attorney L., 511 So.2d 119, 121 (Miss.1987)). After reviewing the record and briefs presented by the parties, and in the absence of addressing issue I, we find that this interlocutory appeal does not warrant consideration of issue II. Accordingly, the interlocutory appeal is dismissed, with costs assessed to Safechoice, Inc.

SO ORDERED.

/s/ Michael K. Randolph

MICHAEL K. RANDOLPH, PRESIDING JUSTICE FOR THE COURT