author: LEE, C.J.,

text:
    Derek Scott PITTMAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01458-COA.
    Court of Appeals of Mississippi.
    Feb. 19, 2013.

      Bobby T. Vance, Batesville, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   LEE, C.J.,

for the Court:

¶ 1. A Marion County Circuit Court jury convicted Derek Scott Pittman of statutory rape in violation of Mississippi Code Annotated section 97-3-65(l)(a) (Supp.2002). Pittman now appeals, arguing (1) the trial court erred by allowing hearsay statements during the testimony of Nurse Tan-ga Stuart; (2) the trial court erred by allowing hearsay statements during the testimony of Officer Adrien Fortenberry; and (8) the verdict is contrary to the sufficiency and weight of the evidence.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 19, 2004, Rebecca entered her daughter’s bedroom and saw her husband, Derek Scott Pittman, having sexual intercourse with their daughter, Emma. Neither Pittman nor Emma saw Rebecca. She backed out of the room and returned to bed. The next morning Rebecca took Emma to the Wesley Medical Center, where Rebecca informed the nurse that she had witnessed her husband having intercourse with Emma. Emma, who was fourteen years old at the time, confirmed that she had been having vaginal intercourse with her father on frequent occasions over the past year.

¶ 3. Emma and Rebecca both spoke to Officer Fortenberry of the Marion County Sheriff’s Department. Emma signed an affidavit attesting to the statutory rape, and Rebecca gave a written statement about her eyewitness account. Some time later, Emma and Rebecca sought to drop the charges against Pittman. The district attorney went forward with the prosecution without the cooperation of Emma or Rebecca.

¶ 4. At trial, the State subpoenaed Emma to testify. When asked about being examined at the Wesley Medical Center, Emma repeatedly stated that she did not remember. She also said she did not remember meeting with Officer Fortenberry or giving him a statement. The assistant district attorney showed Emma her affidavit and asked if she remembered signing it. Emma stated that it looked like her handwriting and her signature, but she did not remember writing it or signing it. Although she responded to questions by stating that she did not remember or did not know, she never contradicted her previous statements that her father had raped her.

¶ 5. When Rebecca testified at trial, she contended that she had taken Emma to the hospital “[t]o see if she [had] been having any sexual intercourse....” Although she remembered speaking to Officer Fortenberry, she repeatedly said that despite attesting to seeing her husband having sexual intercourse with her daughter, she could not “say that [she] saw that.” When the assistant district attorney questioned her again about taking Emma to the hospital, Rebecca said, “I’ve already made those statements. I don’t recall.” Rebecca began to contradict her prior testimony. In an attempt to clarify, the assistant district attorney asked Rebecca if she had gone to work or if she went to the hospital. She stated she had gone to work and then to the hospital, and then declared, “I’m about done.”

¶ 6. Pittman did not testify, nor did he present any evidence. The jury found Pittman guilty of statutory rape. He was sentenced to fifteen years, with seven years to serve in the custody of the Mississippi Department of Corrections, and eight years to serve under the post-release provisions with a five-year supervision period. This appeal followed.

DISCUSSION

I. NURSE STUART’S TESTIMONY

¶ 7. This Court applies “an abuse-of-discretion standard when reviewing claims that the trial judge erred by admitting hearsay.” White v. State, 48 So.3d 454, 456 (¶ 9) (Miss.2010) (citation omitted).

¶ 8. The State called Nurse Tanga Stuart, who examined Emma at the Wesley Medical Center, to testify. In anticipation of the State eliciting testimony regarding the statements Emma and Rebecca had made to Nurse Stuart, the defense objected to the statements as hearsay. The State argued that the statements were admissible because they fell under the medical-records exception of Mississippi Rule of Evidence 803(4). The trial court noted that the statements were admissible under several exceptions, including Mississippi Rules of Evidence 803(2) and 803(3); but it also noted that the statements were admissible because the statements spoke to the “medical condition as to their frame of mind.” When the State sought to have Emma’s medical chart from the examination admitted into evidence, Pittman’s counsel-again objected based on hearsay grounds. The court overruled the objection and admitted the records into evidence.

¶ 9. Pittman contends that the trial court committed reversible error by allowing the hearsay testimony and admitting the medical records into evidence. Pittman asserts that because the declarant of the information is unknown and the information cannot be completely attributed to Emma, the statements are inadmissible.

¶ 10. Rule 803(4) creates an exception to the hearsay rule for “[s]tatements made for the purpose of medical diagnosis or treatment and describing medical history....” Even though the language of the rule mandates that the declarant be the patient, the Mississippi Supreme Court has found that “Rule 803(4) casts its net wider than the patient-physician relationship.” Valmain v. State, 5 So.3d 1079, 1083 (¶ 14) (Miss.2009) (internal quotations omitted). Statements made for the purpose of a medical diagnosis are reliable because “the effectiveness of the treatment depends on the accuracy of the information provided to the doctor, which may be termed a ‘selfish treatment motivation.’” Id. at 1084 (¶ 16) (internal quotations omitted). This veracity does not change when the declarant is the parent of the patient because “parents have the same ‘selfish treatment motivation’ when providing information about their child to a physician for diagnosis or treatment as they would if providing information for their own diagnosis or treatment.” Id. at (¶ 17).

¶ 11. Therefore, whether Emma or her mother gave the statements contained within the medical report is not dispositive. Information obtained from either declarant for the purpose of receiving medical treatment is admissible.

¶ 12. Pittman also contends that the statements were not admissible because they were being used to prove fault. In order for a statement indicating fault to qualify under the exception of Rule 803(4), the statement must meet the two-part test set out in Jones v. State, 606 So.2d 1051 (Miss.1992). “First, the declarant’s motive in making the statement must be consistent with the purposes of promoting treatment; and second, the content of the statement must be such as is reasonably relied on by a physician in treatment.” Id. at 1056. When the victim identifies someone in her household as her abuser, these statements are “reasonably pertinent to treatment and, consequently, reasonably relied upon by physicians in diagnosis and treatment.” Eakes v. State, 665 So.2d 852, 866 (Miss.1995).

¶ 13. Here, both Emma and Rebecca identified Pittman as the perpetrator. Pittman is Emma’s biological father, who lived in the same home with her. Therefore, the statements are “reasonably pertinent to treatment” and “reasonably relied upon ... in diagnosis and treatment.” Id. This issue is without merit.

II. OFFICER FORTENBERRY’S TESTIMONY

¶ 14. Pittman asserts that the trial court erred by admitting hearsay testimony by Officer Fortenberry. Pittman fails to identify which particular statements were hearsay and fails to cite any law in support of his contention. This issue is without merit.

III. SUFFICIENCY AND/OR WEIGHT OF THE EVIDENCE

¶ 15. For the State to prove that Pittman committed statutory rape, it must show that: (1) Pittman was at least seventeen years old; (2) he had sexual intercourse with Emma; (3) Emma was between fourteen and sixteen years old; (4) Emma was thirty-six or more months younger than Pittman; and (5) Pittman was not Emma’s husband. Miss.Code Ann. § 97 — 8—65(l)(a).

A. Sufficiency of the Evidence

¶ 16. When the defendant moves for a judgment notwithstanding the verdict, he is challenging the sufficiency of the evidence and asking “the court to hold, as a matter of law, that the verdict may not stand.” Tait v. State, 669 So.2d 85, 88 (Miss.1996) (citing May v. State, 460 So.2d 778, 780-81 (Miss.1984)). The trial court then “must consider all of the evidence— not just the evidence which supports the State’s case — in the light most favorable to the State.” May, 460 So.2d at 781. “[T]his 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 [jurors] could not have found beyond a reasonable doubt that the defendant was guilty[.]” Hughes v. State, 983 So.2d 270, 275-76 (¶ 10) (Miss.2008) (quoting Brown v. State, 965 So.2d 1023, 1030 (¶ 25) (Miss.2007) (quotation marks omitted)).

¶ 17. Emma stated to Nurse Stuart that she had been having intercourse with her father on numerous occasions for about a year. Additionally, Rebecca informed Nurse Stuart and Officer Fortenberry that she had witnessed her husband having intercourse with Emma. At the time of the report, Pittman was thirty-two years old and more than thirty-six months older than Emma, who was fourteen. And Pittman is not Emma’s spouse, as he is her father. From the evidence presented, reasonable jurors could have found beyond a reasonable doubt that Pittman was guilty of statutory rape. This issue is without merit.

B. Weight of the Evidence

¶ 18. In reviewing a verdict when an objection has been raised to the weight of the evidence, this Court views the evidence in the light most favorable to the verdict, and it “will only disturb [the] verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). If the weight of the evidence fails to meet that high threshold, then the verdict is not against the weight of the evidence. See id. “[T]he power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Amiker v. Drugs for Less Inc., 796 So.2d 942, 947 (¶ 18) (Miss.2000).

¶ 19. Pittman asserts that the verdict is contrary to the weight of the evidence because there was no medical evidence of a sexual assault. Nurse Stuart testified that there were no abrasions, marks, or bruises or any evidence of vaginal tears that may have indicated rape. Additionally, no DNA evidence was produced from the rape kit. However, the jury was also presented evidence that could account for the lack of DNA evidence. According to the medical records, Emma stated Pittman “did not ejaculate last night as he was interrupted during the act.”

¶ 20. Although the medical evidence presented may have been minimal, the jury heard the statements Emma and Rebecca gave to Nurse Stuart and Officer Fortenberry. They heard Nurse Stuart testify that Emma told her that her father had been having intercourse with her on numerous occasions for about a year and that Rebecca had given an eyewitness account of the rape.

¶ 21. Viewing the evidence in the light most favorable to the verdict, it cannot be said that allowing the guilty verdict to stand would be “an unconscionable injustice.” This issue is without merit.

¶ 22. THE JUDGMENT OF THE MARION COUNTY CIRCUIT COURT OF CONVICTION OF STATUTORY RAPE AND SENTENCE OF FIFTEEN YEARS, WITH SEVEN YEARS TO SERVE, EIGHT YEARS SUSPENDED, AND EIGHT YEARS OF POST-RELEASE SUPERVISION, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., NOT PARTICIPATING.

      . The names of the mother and the victim have been changed to protect their identities.


source: Caselaw Access Project

author: LEE, C.J., CARLTON, J.,

license: Public Domain

text:
    Geno HARRELL, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KM-01299-COA.
    Court of Appeals of Mississippi.
    Feb. 26, 2013.

      Roberta Lynn Haughton, West Point, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, Roy E. Carpenter, City attorney, for appellee.
    Before LEE, C.J., BARNES and FAIR, JJ.
   LEE, C.J.,

for the Court:

¶ 1. After being detained for an investigative stop by Sergeant Shawn Word, Geno Harrell became irate, refusing to give Sergeant Word his name and social security number and refusing to follow Sergeant Word’s instructions. Sergeant Word issued Harrell an arrest citation for disorderly conduct and refusing to obey the commands of a law-enforcement officer. Harrell now appeals, arguing (1) the trial court erred when it refused to suppress the evidence of disorderly conduct and failure to obey law-enforcement commands; and (2) the trial court erred when it denied Harrell’s motion for a new trial and for acquittal.

FACTS AND PROCEDURAL HISTORY

¶ 2. On August 2, 2010, the Starkville chief of police called the police station and requested someone investigate a man walking two pit bulls near Louisville Street. The chief of police noted that the man did not seem to have control over the dogs, which posed a potential danger to a pedestrian in the area.

¶ 3. Sergeant Word responded to the call. When he reached Harrell, Sergeant Word rolled down his window and attempted to make conversation with Harrell. Harrell responded but did not stop walking. Sergeant Word called to Harrell to “hold on” so he could get Harrell’s name and social security number to complete the paperwork regarding the call. Harrell became irate and demanded Sergeant Word’s name and badge number. Sergeant Word exited his car and again attempted to explain the need for Harrell’s information. Sergeant Word informed Harrell multiple times, if he would give his name and social security number, he could be “out of [there] in 20, 30 seconds.” As Harrell became more agitated, so did the dogs. Sergeant Word instructed Harrell to sit on the grass because the dogs were calmer when Harrell was seated. Harrell refused to remain seated. Eventually, animal control arrived, and Harrell gave his information to Sergeant Word. Sergeant Word issued Harrell an arrest citation for disorderly conduct and failure to obey the command of a law-enforcement officer.

¶ 4. The Starkville Municipal Court found Harrell guilty of disorderly conduct and failure to obey the command of a law-enforcement officer and fined him $500. Harrell appealed to the Oktibbeha County Circuit Court. After a trial de novo, Harrell was found guilty of the same charges and fined $250. This appeal followed.

STANDARD OF REVIEW

¶ 5. An unlawful-seizure claim is analyzed under a mixed standard of review. Trejo v. State, 76 So.3d 702, 706 (¶ 8) (Miss.Ct.App.2010). To determine if probable cause exists, this Court conducts a de novo review. Id. But this de novo review is limited to the trial court’s “decision based on historical facts reviewed under the substantial evidence and clearly erroneous standards.” Id. (citations omitted). When addressing the suppression of the evidence obtained from the unlawful seizure, the trial court’s findings of fact will only be disturbed on appeal if the trial judge “applied an incorrect legal standard, committed manifest error, or made a decision contrary to the overwhelming weight of the evidence.” Clair v. State, 845 So.2d 733, 734-35 (¶ 4) (Miss.Ct.App.2003).

DISCUSSION

¶ 6. Harrell contends that the investigative stop was an illegal seizure and that any evidence as a result of the stop should have been suppressed. Since we find this issue is dispositive, we will not address Harrell’s motion for a new trial or acquittal.

¶ 7. The Fourth Amendment to the United States Constitution and Article 3, Section 23 of the Mississippi Constitution protects people from “unreasonable searches and seizures.” A seizure occurs “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

¶ 8. The Mississippi Supreme Court has divided “[p]olice activity in preventing crime, detecting violations, making identifications, and ... apprehending criminals” into three types of action: (1) voluntary conversations, (2) investigative stops and temporary detentions, and (3) arrests. Singletary v. State, 318 So.2d 873, 876 (Miss.1975). Here, Sergeant Word performed an investigative stop. For an investigative stop to be lawful under the Fourth Amendment, the stop must be brief, and “the officer[] [must] have ‘reasonable suspicion, grounded in specific and articulable facts’ that allows the officer[] to conclude the suspect is wanted in connection with criminal behavior.” Eaddy v. State, 63 So.3d 1209, 1213 (¶ 14) (Miss.2011) (quoting Walker v. State, 881 So.2d 820, 826 (¶ 10) (Miss.2004)). Articulated another way, the officer must have a reasonable suspicion “that criminal activity may be afoot.” Terry, 392 U.S. at 30, 88 S.Ct. 1868; see also United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); Rainer v. State, 944 So.2d 115, 118 (¶ 6) (Miss.Ct.App.2006).

¶ 9. The State never contends that criminal activity was “afoot.” Neither the chief of police, who made the call, nor Sergeant Word, who responded to the call, stated he had any reasonable suspicion that Harrell was involved in any type of criminal behavior. Instead, the State argues the standard is not the “reasonable suspicion of criminal behavior” standard articulated in Terry, Trejo, Eaddy, and numerous other federal and state cases. The State asserts, “[I]t is enough if there is reasonable articulable suspicion of a potential hazard that is able to, or likely could, expose others to harm or injury.” (Emphasis added). However, the State fails to cite any supporting authority for this potential-hazard standard.

¶ 10. At trial, testimony was given regarding certain city ordinances demanding specific requirements to own pit bulls. However, no testimony was given that Harrell was in violation of any of these ordinances. Even assuming Harrell was violating a city ordinance by walking his pit bulls on leashes, Sergeant Word testified that he observed the dogs and determined that the dogs were not vicious. This occurred prior to stopping Harrell. When Sergeant Word stopped Harrell to obtain his name and social security number, he did not have reasonable suspicion that any crime — even disobeying a city ordinance — had occurred or was about to occur. Harrell’s Fourth Amendment rights were violated “because [Sergeant Word] lacked any reasonable suspicion to believe [Harrell] was engaged or had engaged in criminal conduct.” Brown, 443 U.S. at 53, 99 S.Ct. 2637.

¶ 11. If the officer did not have reasonable suspicion to perform the investigatory stop, “then evidence obtained during the investigatory stop ... is deemed fruit of the poisonous tree and is inadmissable.” Reynolds v. City of Water Valley, 75 So.3d 597, 600 (¶ 9) (Miss.Ct.App.2011) (citing Haddox v. State, 636 So.2d 1229, 1233 (Miss.1994)). Since Sergeant Word did not possess the requisite reasonable suspicion that Harrell was engaged or had engaged in criminal conduct, Harrell’s statements and actions after the unlawful stop are fruit of the poisonous tree and are, therefore, inadmissible.

¶ 12. The trial court committed manifest error when it refused to suppress the evidence of Harrell’s disorderly conduct and failure to obey law-enforcement commands. The arrest for disorderly conduct and failure to obey a law-enforcement officer would not have occurred absent the unlawful seizure. Therefore, the judgment of the trial court is reversed and rendered.

¶ 13. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CIRCUIT COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIBBEHA COUNTY.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS AND FAIR, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J„ DISSENTS WITH SEPARATE WRITTEN OPINION. JAMES, J., NOT PARTICIPATING.

CARLTON, J.,

dissenting:

¶ 14. I respectfully dissent from the majority’s opinion and would affirm Harrell’s judgment of conviction. The majority concludes that Harrell’s statements and actions should have been suppressed as fruits of an unlawful stop. The majority also provides that no criminal activity supported the officer’s investigative stop. I disagree with both of these contentions. Police power extends beyond investigating criminal activity and embraces the protection of lives, health, and property of the city. See Patterson v. Kentucky, 97 U.S. 501, 504, 24 L.Ed. 1115 (1878). The majority overlooks the community-caretaker function of local law enforcement to protect the safety of the public, and the question for review here is “whether a reasonable person, given the totality of the circumstances, would believe the individual is in need of help or that the safety of the public is endangered.” Trejo v. State, 76 So.3d 684, 689 (¶ 14) (Miss.2011) (citations and quotation marks omitted).

¶ 15. In this case, the officer responded to a call regarding a potential danger of pit bulls near Louisville Street. The officer acknowledged that Harrell appeared to lack control over the pit bulls, and that the pit bulls posed a potential danger to pedestrians. Not only does the record reflect evidence of a potential danger to public safety supporting the investigative stop, but the record also shows a violation of a city ordinance. Harrell was clearly and objectively involved in a violation of a city ordinance adopted to ensure the safety of citizens exposed to pit bulls in public places within the city. As such, Harrell was not just stopped for being a potential hazard to public safety but also for violating an ordinance intended to protect the public. See Walker v. State, 881 So.2d 820, 826 (¶ 10) (Miss.2004) (“The local policeman is ... in a very real sense a guardian of the public peace[,] and he has a duty in the course of his work to be alert for suspicious circumstances, and, provided that he acts within constitutional limits, to investigate whenever such circumstances indicate to him that he should do so.”); Moore v. City of Louisville, 716 So.2d 1136, 1137 (¶ 7) (Miss.Ct.App.1998) (“The governing authorities of municipalities shall have power to make all needful police regulations necessary for the preservation of good order and peace of the municipality. Neither can there be any dispute over a municipality’s authority to enforce its ordinances.” (internal citation omitted)).

¶ 16. In this case, the city ordinance defining how pit bulls are to be controlled in public places reflects the duty and express authority of the police to enforce this ordinance. In addition to the express authority and duty to enforce the ordinance, I respectfully submit that, even if the ordinance did not exist, the trial court’s judgment should be affirmed since the facts of this case reflect an effective balance of the seizure and the advancement of the public interest in the preservation of public safety. Law enforcement possesses the paramount duty to preserve public safety, and the use of private property is subject to the police’s duty to preserve public safety. The United States Supreme Court has upheld police regulations necessitated by conditions of a civil society, which were enacted in good faith and had a direct connection with protection of life, health, and property. Patterson, 97 U.S. at 506, 24 L.Ed. 1115.

¶ 17. A sufficient basis existed in this ease to support a lawful investigatory stop and the admission of the evidence at trial. Based on the foregoing, I respectfully dissent from the majority’s opinion.

      . See also Cady v. Dombrowski, 413 U.S. 433, 436-48, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) (recognizing a community-caretaker function, distinct from the detection, investigation, or acquisition of evidence, justifying police contact and stops); Floyd v. City of Crystal Springs, 749 So.2d 110, 114-19 (¶¶ 13-33) (Miss.1999) (acknowledging the community-caretaker function of local law enforcement).

      . See Eaddy v. State, 63 So.3d 1209, 1213 (¶ 14) (Miss.2011).

      . See also Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 447-55, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990) (sobriety checkpoints valid and effectively balanced degree of seizure with police interest advanced); The owner of a known vicious dog possesses a duty to control the animal. See Mongeon v. A & V Enters., Inc., 733 So.2d 170, 171-73 (¶¶ 5-12) (Miss.1997); Poy v. Grayson, 273 So.2d 491, 493-95 (Miss.1973); Phillips v. Garner, 106 Miss. 828, 828, 64 So. 735, 736 (1914).

      . See Cady, 413 U.S. at 436-48, 93 S.Ct. 2523; Floyd, 749 So.2d at 114-19 (¶¶ 13-33); Moore, 716 So.2d at 1137 (¶ 7).

      . See generally State v. J.J. Newman Lumber Co., 102 Miss. 802, 802, 59 So. 923, 926 (1912); Moore v. State, 48 Miss. 147, 147 (Miss.1873).


author: ROBERTS, J.,

text:
    Glenn A. WESTBROOK a/k/a Glenn Westbrook a/k/a Glenn Anthony Westbrook a/k/a Glen Westbrook a/k/a Glenn Westbrooke, Appellant, v. STATE of Mississippi, Appellee.
    No. 2011-KA-00728-COA.
    Court of Appeals of Mississippi.
    March 5, 2013.

      W. Daniel Hinchcliff, Leslie S. Lee, Jackson, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. In the Warren County Circuit Court, a jury convicted Glenn Westbrook of Count I, child molestation, and Count II, enticing a child to engage in sexual activity. He was sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections (MDOC) for Count I. Westbrook was also sentenced to serve twenty years in the custody of the MDOC for Count II. The circuit court suspended three years of Westbrook’s sentence in Count I, leaving twelve years to serve, and also suspended five years of Westbrook’s sentence in Count II, leaving fifteen years to serve. His sentences were ordered to be served consecutively for a total of twenty-seven years in custody of the MDOC. Westbrook also received fines on both counts. Westbrook filed a motion for a judgment notwithstanding the verdict (JNOV) and a motion for a new trial. The circuit court overruled both motions, and Westbrook executed this appeal.

FACTS AND PROCEDURAL HISTORY

¶ 2. Westbrook was indicted on one count of molestation and one count of enticement of a child for sexual purposes. On December 5, 2005, Westbrook pled guilty to one count of enticement of a child for sexual purposes in exchange for the molestation count to be dropped. After filing a motion for post-conviction relief, Westbrook’s guilty plea was later set aside due to a defect in the first indictment. Westbrook was re-indicted on the same charges on January 28, 2010. He entered a plea of not guilty, and a jury trial was held April 4-6, 2011.

¶ 3. The circuit court heard numerous pretrial motions on February 18, 2011. Among the pretrial motions filed, West-brook filed a motion in limine seeking the suppression of testimony offered by two of his nephews. Their testimony would be regarding allegations of prior sexual abuse inflicted upon them by Westbrook between thirty and forty years ago. The circuit court overruled this motion finding that, with sufficient limiting instructions after each nephew’s testimony and a limiting written jury instruction, the evidence was more probative than prejudicial under Mississippi Rule of Evidence 408.

¶ 4. At Westbrook’s trial, the State presented the testimony of several witnesses. John Smith, the victim, was the first to testify. Smith testified that when he was around the age of twelve, he lived in the same apartment complex as Westbrook, and the two became friends. Westbrook would take Smith out to get meals, to go to the movies, and to buy him clothes. West-brook even opened a bank account for Smith. They also spent time together in both Westbrook’s and Smith’s apartments. Smith testified that while they were spending time together, Westbrook would rub his hands on Smith’s penis and bottom, but Westbrook never put his hands down Smith’s pants or underwear. Smith also testified that it made him uncomfortable when Westbrook would kiss him on the cheek. When Smith was fifteen years old, he moved to Arkansas to live with his father after his mother became concerned with his relationship with Westbrook. His parents instructed him not to have any contact with Westbrook. A letter was presented to Smith at trial, and according to him, he received the letter from West-brook. The letter included a poker chip and a prepaid calling card. According to Smith, the poker chip was a gift/souvenir from the many times they went to Ameris-tar Casino together. The calling card was supposed to be used only to call West-brook. The letter was addressed to “Buddy-Roo,” which Smith confirmed was a nickname given to him by Westbrook. It also stated that Westbrook was interested in coming to Arkansas to visit Smith and that he “would have no problem finding [Smith]” because he was a former police officer. The letter also stated: “I [am] sure we can find a way to meet somewhere. Maybe go for some pizza and then to my hotel to visit for a while.” Smith also testified that on several occasions he caught Westbrook masturbating in the bathroom right after Westbrook had been rubbing on Smith’s privates.

¶ 5. In addition to Smith’s testimony, Smith’s mother and their neighbor also testified that many of Westbrook’s actions toward Smith made them uncomfortable. To them, Westbrook’s behavior and actions, while making them wary, did not initially indicate molestation. As time went on, they became concerned something more inappropriate, such as molestation, was, in fact, going on between Smith and Westbrook. Some of these actions included: buying matching clothes, setting up a bank account in Smith’s name, helping Smith skip school and taking him to the casino instead, telling Smith he loved him, and at least one instance of kissing Smith on the mouth as witnessed by the neighbor. The State also presented an audio recording of a phone call between Westbrook and an unidentified woman in which he expresses his anger and frustration that the phone card he sent Smith was used on phone calls to other people instead of phone calls to him. He again makes reference to being able to find Smith due to his past as a police officer.

¶ 6. Two of Westbrook’s nephews also provided testimony for the State. Over Westbrook’s objection, George Ettinger, Jr., and Wayne Westbrook both described in extremely vivid detail allegations of molestation they were subjected to as young children at the hands of Westbrook. Westbrook was never arrested or indicted on any of these allegations. After Ettinger’s and Wayne’s testimonies, the circuit judge admonished the jury with a limiting instruction not to use the testimony to infer that Westbrook acted in conformity with his previous acts; thus, making him guilty of the current crime. Instead, the jury was to consider the testimony “only for the limited purpose of showing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, or accident.”

¶ 7. When the State rested its case-in-chief, Westbrook moved for a directed verdict arguing that the State failed to meet the elements of the crimes charged. The circuit judge denied the motion. West-brook then presented the testimony of Margaret Pagan, his roommate of over seventeen years. She testified that West-brook’s relationship with Smith was one of a father figure and that she had never seen any inappropriate interactions between Westbrook and Smith. Betty Brent, Beechwood Park Apartments manager, also testified on behalf of Westbrook. She testified that she personally had never witnessed any inappropriate contact between Westbrook and Smith and that she saw both of them on a regular basis. Lastly, Kenneth Neff, a resident of Beechwood Park, testified that he saw West-brook take more of a father figure role over Smith, and he had never personally observed Westbrook inappropriately touch Smith.

¶ 8. The jury found Westbrook guilty on Count I and Count II. A sentencing hearing was held on April 22, 2011. On Count I, Westbrook was sentenced to fifteen years in the custody of the MDOC with twelve years to serve, three years suspended, and three years of post-release supervision (PRS). He was also ordered to pay a $5,000 fine. On Count II, West-brook was sentenced to twenty years in the custody of the MDOC with fifteen years to serve, five years suspended, and five years of PRS. He was also ordered to pay a $50,000 fine. The sentences were ordered to run consecutively to one another. He received credit for time served in custody. Westbrook was also required to register as a sex offender and to have no contact with Smith or Smith’s family.

¶ 9. On April 13, 2011, Westbrook filed a JNOV motion and, in the alternative, a motion for a new trial. The circuit court overruled the motions on April 20, 2011. Based on the circuit court’s decision, West-brook executed the current appeal and raises the following two issues:

I. Whether the [circuit] court erred in finding sufficient evidence to support a guilty verdict [as] to the crime of enticement[.]
II. Whether the [circuit] court erred in admitting evidence of prior alleged incidents of rape and abuse purportedly committed by [Westbrook] on his nephews[.]

STANDARD OF REVIEW

¶ 10. In his first issue, West-brook argues that the circuit court erred in overruling his motions for a directed verdict and JNOV. Both motions are a challenge to the sufficiency of the evidence supporting his conviction of enticement of a child for sexual purposes. When reviewing the circuit court’s decision in overruling motions for a directed verdict and JNOV, “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that 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.” ’ Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005)(quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). Further, this Court is to view “the evidence in the light most favorable to the prosecution” to determine if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (citations omitted).

¶ 11. Westbrook’s second issue involves whether the circuit court erred in admitting testimony of prior sexual acts against children. The standard of review for the admission of evidence is the abuse-of-discretion standard, but “the circuit court must exercise its discretion within the boundaries of the Mississippi Rules of Evidence.” Smith v. State, 96 So.3d 33, 39 (¶ 20) (Miss.Ct.App.2012) (citing Shaw v. State, 938 So.2d 853, 857 (¶ 9) (Miss.Ct.App.2005)).

ANALYSIS

I. Sufficiency of the Evidence

¶ 12. Westbrook was indicted for a violation of Mississippi Code Annotated section 97-5-33(6) (Supp.2012), which provides: “No person shall, by any means ..., knowingly entice, induce, persuade, seduce, solicit, advise, coerce, or order a child to meet with the defendant or any other person for the purpose of engaging in sexually explicit conduct.” In his first issue, Westbrook argues that there was insufficient evidence to find him guilty of the crime of enticement of a child for sexual purposes because there was no evidence that he made a specific attempt to set a date, time, or place to meet Smith for sexual activity. According to Westbrook, simply alluding to a possible future meeting in a letter does not satisfy the elements of the crime.

¶ 13. We disagree with West-brook’s insistence that to prove child exploitation there must be a definitive or specific meeting place set. Section 97-5-33(6) does not require that an actual, confirmed meeting place be set or actually take place. Nor does the supreme court’s decision in Shaffer v. State, 72 So.3d 1070 (Miss.2011). Rather, the pertinent inquiry in this case is whether there was an attempt to exploit a child. As our supreme court explained in Shaffer, because “[solicitation is sufficient to violate” section 97-5-33(6), the statute is violated and the crime of exploitation is complete when one attempts to exploit a child. Shaffer, 72 So.3d at 1072 (¶¶ 4-5).

¶ 14. In the current case, the jury was instructed that it only should find Westbrook guilty if the State proved that he did “1. willfully, knowingly, unlawfully and feloniously; 2.[e]ntice, induce, persuade, seduce, solicit, advise, coerce, or order, or attempt the same; 3. [Smith], a child under the age of eighteen ... years; 4. to meet with [Westbrook], for the purpose of engaging in sexually explicit conduct.” Evidence was presented to the jury that Westbrook sent Smith a letter indicating his desire to set up a meeting in Jacksonville for them to “maybe go for some pizza and then to [Westbrook’s] hotel to visit for a while.” A reasonable jury could have concluded that, while an overt request for sexual activity was not made, a request by a middle aged man to “visit” with an underage boy in a hotel room, against his parents’ wishes, satisfactorily met the elements of the crime charged. The questions of whether Westbrook intended to exploit the child and whether he aimed to meet to engage in sexually explicit conduct with Smith were “question[s] of fact to be gleaned by the jury.” Shanklin v. State, 290 So.2d 625, 627 (Miss.1974). In assessing Westbrook’s intent, the jury was free to consider his acts, expressions, and declarations. The jury was also privy to Mississippi Rule of Evidence 404(b) evidence from two of Westbrook’s previous molestation victims, which the circuit judge admitted as evidence of Westbrook’s underlying intent. Viewing the evidence in a light most favorable to the State, we do not find that the circuit judge erred in denying Westbrook’s JNOV motion challenging the sufficiency of the evidence to convict him of the crime of child exploitation.

¶ 15. This issue is without merit.

II. Admission of Evidence

¶ 16. Westbrook next takes issue with the admission of testimony of Ettinger and Wayne, his nephews, regarding sexual abuse he inflicted upon them. Prior to trial, Westbrook filed a motion in limine to exclude their testimony because the alleged sexual abuse was thirty to forty years prior to the current charge and that the alleged sexual abuse did not resemble the current charge. Westbrook further argued that the evidence did not survive the Mississippi Rule of Evidence 403 filter to be allowed in under Mississippi Rule of Evidence 404(b). The circuit court denied Westbrook’s motion in limine. Applying the Rule 403 filter, the circuit court found that the evidence was prejudicial, but when dealing with sexual crimes against children, there is more leeway in admitting this type of evidence. It also found that the probative value of the evidence substantially outweighed any unfair prejudice or confusion of the issues for the jury. The circuit court additionally found that a limiting instruction would further prevent any unfair prejudice or confusion on the part of the jury.

¶ 17. Westbrook makes an identical argument on appeal as to why the testimony of Ettinger and Wayne should have been excluded at trial. According to West-brook, the allegations of past sexual abuse are extremely remote in time. He also alleges that it is not enough for the crime to be similar, but “[t]here must be significant similarity in the method and manner that the crimes are committed, and not just a similar crime[.]” Westbrook claims the similarities were not present in this case. However, based upon Mississippi precedent, we do not find that the circuit court abused its discretion in allowing the testimony of Ettinger and Wayne although the allegations were remote in time and not identical to the current allegations.

¶ 18. In a similar case, Gore v. State, 37 So.3d 1178, 1187 (¶ 20) (Miss.2010), the Mississippi Supreme Court held that evidence of past allegations of sexual abuse, even though remote, is admissible to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In Gore, John Gore was charged with gratifying his lust or indulging his depraved licentious sexual desires,” on May 11, 2007, by “ ‘intentionally handling], touch[ing] or rub[bing,] with his hands or any part of his body or any member thereof,’ his twenty-one-month-old granddaughter[.]” Id. at 1180 (¶ 1). The State presented testimony from Gore’s adult daughter regarding his sexual molestation of her at the age of twelve, when he would make her sleep naked in the bed with him and touch her inappropriately. Id. at 1188-84 (¶ 14). In addition, Gore made his daughter sit on his lap while both were naked and look at child pornography. Id. at 1184 (¶ 14). Gore also required both his son and daughter to be naked at home and accompany him to a nudist camp. Id. The molestation of his granddaughter occurred approximately seven years after the sexual abuses of his own children. Id. at 1187 n. 17. The circuit court determined that the challenged testimony was permissible under Rule 404(b) and that the probative value of the evidence was not substantially outweighed by the prejudicial effect. Gore, 37 So.3d at 1187 (¶ 21). Also, the circuit court provided a limiting instruction to the jury that the evidence should not be considered to prove that Gore acted in conformity with his past behavior. Id. The supreme court reaffirmed its holding in Derouen v. State, 994 So.2d 748 (Miss.2008), that evidence of prior sexual acts may be admissible if it is for the purpose of showing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, especially when coupled with a limiting instruction given to the jury. Gore, 37 So.3d at 1187 (¶ 20). The supreme court quoted an Alabama Supreme Court case on the issue of remoteness: “[w]here the competency of evidence is doubtful because of remoteness, the better practice is to admit the evidence, leaving it to the jury to determine its credibility and weight[.]” Id. at 1187 (¶ 19) (quoting Ex Parte Register, 680 So.2d 225, 228 (Ala.1994)).

¶ 19. More recently in Young v. State, 106 So.3d 775, 779-81 (¶¶ 17-18) (Miss. 2012) (rehearing denied), the supreme court, reaffirming its holding in Gore, found that the circuit court properly admitted the testimony from John Young’s half-sister about sexual abuse inflicted upon her by Young over twenty years previously. The supreme court stated that the testimony was permissible to show that Young’s motive was a “ ‘seemingly uncontrollable desire to partake in pedophilic sexual activities with young and developing female juveniles’ and that both assaults were part of a ‘common plan, scheme, or system’ that involved Young taking advantage of family relationships to engage in sexual activities with prepubescent girls.” Id. at *4 (¶ 17). The supreme court ultimately found that this Court was correct in finding that the testimony was admissible, “[bjecause this evidence was properly admitted under Rule 404(b), filtered through Rule 403, and accompanied by an appropriately-drafted limiting or cautionary instruction to the jury[.]” Young, 106 So.3d at 780 (¶ 18) (citations and quotation marks omitted).

¶ 20. In the present case, Ettinger and Wayne described in vivid detail the sexual abuses. Ettinger testified that Westbrook molested him numerous times from the ages of five to nine or ten by luring him to the garage or a back room of the home. Westbrook also attempted to have anal sex with Ettinger and have Et-tinger perform oral sex on him. When asked if he had any doubt about “what [Westbrook] wants sexually!,]” Ettinger responded: “Young boys.” Wayne testified that Westbrook molested and raped him on numerous occasions while he was four to five years old. According to Wayne, Westbrook would intimidate him into keeping quiet by telling Wayne he was a police officer. Wayne testified that there was “[absolutely no doubt that [Westbrook was] a child molester and a rapist.” After both Ettinger and Wayne testified, the circuit judge gave the jury the following limiting instruction: “[T]he acts testified to by [Ettinger or Wayne] are related to charges about which the defendant is not presently on trial, and they are to be considered by you only for the limited purposes of showing proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, or accident.” (Emphasis added). The jury also received a written jury instruction stating:

[T]he acts testified to by [Wayne] and Ettinger are acts relating to charges for which [Westbrook] is not presently on trial and are to be considered only for the limited purpose of showing proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. You cannot and must not simply infer that the defendant acted in conformity with his previous acts and that he is therefore guilty of the charge for which he is presently on trial.

According to the State, the purpose of offering the testimony from Ettinger and Wayne was to show Westbrook’s “pedo-philic activity with young and developing males” and the use of intimidation to keep his victims silent. The circuit court followed Mississippi precedent found in Derouen and Gore by admitting evidence of prior sexual acts for a limited purpose under Rule 404(b) after a Rule 403 determination that the probative value was not substantially outweighed by the danger of unfair prejudice to Westbrook and by providing appropriate limiting instructions to the jury about the limited purpose for which it could use the prior-sexual-acts testimony. As such, we cannot find that the circuit court abused its discretion in allowing such evidence in at trial.

¶ 21. This issue is without merit.

¶ 22. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, MOLESTATION, AND SENTENCE OF FIFTEEN YEARS WITH TWELVE YEARS TO SERVE, THREE YEARS SUSPENDED, AND THREE YEARS OF POST-RELEASE SUPERVISION, AND FINE OF $5,000, AND CONVICTION OF COUNT II, ENTICEMENT OF A CHILD FOR SEXUAL PURPOSES, AND SENTENCE OF TWENTY YEARS WITH FIFTEEN YEARS TO SERVE, FIVE YEARS SUSPENDED, AND FIVE YEARS OF POST-RELEASE SUPERVISION, AND FINE OF $50,000, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH THE SENTENCES TO RUN CONSECUTIVELY TO ONE ANOTHER, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

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

      . Due to the age of the victim at the time of the crimes, we refer to him in this opinion using a pseudonym.


author: IRVING, P.J.,

text:
    Nevin WHETSTONE a/k/a Nevin K. Whetstone a/k/a Nevin Kerr Whetstone, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-01276-COA.
    Court of Appeals of Mississippi.
    March 19, 2013.

      Nevin Whetstone, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On December 14, 1984, Nevin Whetstone pleaded guilty to capital murder. Following his plea, the Lee County Circuit Court sentenced him to life imprisonment in the custody of the Mississippi Department of Corrections. On June 14, 2011, Whetstone filed a motion for post-conviction relief (PCR), which the circuit court dismissed. Feeling aggrieved, Whetstone appeals and argues that his plea was involuntary and that the indictment, charging him with capital murder, was defective.

¶ 2. We hold that the circuit court correctly found that Whetstone’s PCR motion was both time-barred and successive-writ barred. Therefore, we affirm the circuit court’s dismissal of Whetstone’s PCR motion.

FACTS

¶ 3. On February 9, 1984, a Lee County grand jury indicted Whetstone for capital murder pursuant to Mississippi Code Annotated section 97-3-19(2)(e) (Rev.2006). Whetstone initially denied any connection to the crime. He later confessed that he and the victim had argued on the night of the murder and that he had hit her to protect himself from her advances. On December 14, 1984, Whetstone pleaded guilty to capital murder. The circuit court accepted Whetstone’s plea as knowing and voluntary.

¶ 4. On October 3, 1996, Whetstone filed his first PCR motion, in which he alleged that his indictment was defective and his counsel was ineffective. The circuit court dismissed this PCR motion, and the Mississippi Supreme Court affirmed the circuit court’s dismissal. On June 14, 2011, Whetstone filed the present PCR motion, alleging that his indictment was defective and that his guilty plea was involuntary. The circuit court dismissed the motion as time-barred, pursuant to Mississippi Code Annotated section 99-39-5(2)(b) (Supp. 2012), and procedurally barred as a successive writ, pursuant to Mississippi Code Annotated section 99-39-23(6) (Supp.2012).

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 6. An appellate court will not reverse the circuit court’s dismissal of a PCR motion absent a finding that the decision was clearly erroneous. Jackson v. State, 67 So.3d 725, 730 (¶ 16) (Miss.2011). Questions of law, however, are reviewed de novo. Id.

1. Procedural Bars

a. Time-Bar

¶ 7. The circuit court correctly found that Whetstone’s motion was time-barred. Section 99-39-5(2)(b) requires PCR motions in capital cases to be filed “within one (1) year after conviction.” Here, Whetstone pleaded guilty to capital murder. Therefore, he had one year from December 14, 1984, the date of the entry of conviction, to file a PCR motion. Whetstone filed this PCR motion on June 14, 2011 — twenty-seven years after the limitations period had expired. Consequently, Whetstone’s PCR motion is time-barred.

b. Successive Writ

¶ 8. The circuit court also correctly found that Whetstone’s motion was procedurally barred as a successive writ. Section 99-39-23(6) provides that the dismissal or denial of a PCR motion is final and bars a second or subsequent motion. Section 99-39-23(6) also lists five instances when a subsequent PCR motion would be exempt from the procedural bar. Those instances are: (1) issues with the defendant’s supervening mental illness prior to the execution of a death sentence, (2) an intervening decision of the United States Supreme Court or of the Mississippi Supreme Court that would require a different outcome or sentence, (3) the existence of practically conclusive evidence, not reasonably discoverable at the time of trial, that would have caused a different result in the conviction or sentence if it were available at trial, (4) the defendant’s “sentence has expired or his probation, parole[,] or conditional release has been unlawfully revoked,” and (5) the PCR movant “has filed a prior petition and has requested DNA testing[,] ... provided the [movant] asserts new or different grounds for relief related to DNA testing not previously presented or the availability of more advanced DNA technology.” Miss.Code Ann. § 99-39-23(6).

¶ 9. As previously stated, on October 3, 1996, Whetstone filed his initial PCR motion, which the circuit court dismissed. Whetstone filed his second PCR motion on June 14, 2011. Therefore, he carried the burden of proving, by a preponderance of the evidence, that he satisfied at least one of the exceptions in section 99-39-23(6) in order to survive the procedural bar. Miss. Code Ann. § 99-39-23(7) (Supp.2012). Whetstone failed to carry this burden, as he failed to produce any evidence that would satisfy any of the exceptions listed in section 99-39-23(6). Additionally, our review of the record reveals no evidence that would satisfy the exceptions. Accordingly, Whetstone’s PCR motion is procedurally barred as a successive writ.

2. Involuntary Guilty Plea

¶ 10. Procedural bars notwithstanding, Whetstone’s claims are without merit. Whetstone argues that his guilty plea was involuntary because he did not sign a guilty-plea petition, and the circuit court failed to follow the guidelines of Rule 8.04 of the Uniform Rules of Circuit and County Court. When a PCR movant challenges the validity of his guilty plea, he carries the burden to prove that his plea was invalid. Hannah v. State, 943 So.2d 20, 25 (¶ 11) (Miss.2006). Whetstone has failed to demonstrate that his plea was invalid. While the record does not contain a guilty-plea petition, there is no rule that requires a defendant to sign a guilty-plea petition before the court can accept his guilty plea. Thus, the absence of a guilty-plea petition does not automatically invalidate the plea. Moreover, the record does not contain a guilty-plea transcript, and Whetstone has failed to submit any affidavits to support his contentions. Whetstone does not allege that he was induced or coerced into pleading guilty, and, without a transcript or affidavits to support his contention, we must presume that Whetstone’s guilty plea was valid. See id. Accordingly, this issue is without merit.

3. Defective Indictment

¶ 11. Whetstone alleges that his indictment was defective because it did not contain “a plain, concise[,] and definite written statement of the essential facts constituting the offense charged”; it “failed to state ‘without the authority of law by any means or in any manner, done with or without design to effect death’ it did not have a sworn affidavit from the grand jury foreman attached; and it did not have a capias issued or executed. It is well established that a valid guilty plea waives all technical and non-jurisdictional defects or insufficiencies in the indictment except the failure to charge an essential element of the crime and lack of subject-matter jurisdiction. See Joiner v. State, 61 So.3d 156, 158-59 (¶ 7) (Miss.2011). Therefore, Whetstone waived all of the indictment’s non-jurisdictional defects when he pleaded guilty to the crime.

¶ 12. Whetstone also contends that the indictment was defective because it failed to set out the facts to support the allegation of rape as the underlying felony to the capital-murder charge. However, our supreme court has previously stated that naming the underlying felony in the capital-murder indictment is sufficient to place the defendant on notice of the charges against him, unless the underlying felony is burglary. See Stevens v. State, 808 So.2d 908, 920 (¶ 38) (Miss.2002). Here, the indictment stated that Whetstone “wilfully, unlawfully, feloniously[,] and with malice aforethought [killed and murdered the victim] ... while he ... was engaged in the commission of the crime of rape.... ” Because Whetstone’s indictment named the underlying felony, which was not burglary, we find that Whetstone’s indictment was sufficient to provide him reasonable notice of the charges against him. This issue is without merit.

¶ 13. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

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

      . The supreme court's opinion was not designated for publication.


text:
    Stanley McGLASTEN a/k/a Stanley McGlaston a/k/a Catman, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00070-COA.
    Court of Appeals of Mississippi.
    March 19, 2013.

      George T. Holmes, Jackson, Hunter Nolan Aikens, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
   IRVING, P.J.,

for the Court:

¶ 1. On August 24, 2011, a jury found Stanley McGlasten guilty of uttering a forgery. The Jasper County Circuit Court sentenced McGlasten to six years under the supervision and control of the Mississippi Department of Corrections, with five years to serve, one year suspended, and one year of post-release supervision. The trial court denied McGlasten’s motion for a judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial. McGlasten appeals and argues that the prosecution did not prove beyond a reasonable doubt that he committed the offense. He also argues that the verdict is against the overwhelming weight of the evidence.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Fontrell “Chris” Hughes worked for Steve Aycock at Pit Stop Mufflers in Bay Springs, Mississippi, for a short time in June 2010. During the time Hughes worked for Aycock, Aycock would sometimes leave Hughes alone at the shop. Hughes testified at trial that when Aycock would leave, Hughes would either sit outside the shop or walk to the nearby Piggly Wiggly grocery store. Aycock testified that he always paid Hughes in cash, which Hughes admitted at trial. Hughes testified that he had never had a driver’s license, just an old picture ID from Laurel, Mississippi.

¶ 4. McGlasten, a self-employed mechanic, occasionally took vehicles to Aycock’s muffler shop and saw Hughes working there a few times, even though he did not know Hughes by name. McGlasten testified that Hughes approached him in the Piggly Wiggly parking lot and offered him fifty dollars to cash a payroll check because Hughes did not have the appropriate identification to cash the check. After McGlasten agreed to do so, Hughes went back to the muffler shop, and returned to the parking lot with a payroll check made out to McGlasten. McGlasten testified that the check and Aycock’s signature looked legitimate. McGlasten endorsed the check, cashed it, and gave the cash to Hughes. Hughes, in turn, gave McGlasten fifty dollars. McGlasten testified that he had been in Hughes’s position before, not having an ID and needing others to cash a check for him.

¶ 5. Aycock found a cancelled check written to McGlasten for $502.25 that he did not authorize. Aycock notified the police, and a few days later, McGlasten went to Pit Stop Mufflers to tell Aycock his version of what happened. McGlasten was arrested and charged with uttering a forgery.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

I. Procedural Bar

¶ 7. A sufficiency-of-the-evidence challenge can be raised in a motion for a directed verdict, made at the end of the prosecution’s case or at the close of all evidence; in a request for a peremptory instruction; or in a motion for a JNOV. Higgins v. State, 725 So.2d 220, 224 (¶ 22) (Miss.1998). “When a criminal defendant files an unsuccessful motion for a directed verdict, then presents his own evidence, and later files a motion for [a JNOV], that motion for [a] JNOV preserves the defendant’s challenge of the sufficiency of [the] evidence.” Jordan v. State, 936 So.2d 368, 372 (¶ 19) (Miss.Ct.App.2005) (citing Odem v. State, 881 So.2d 940, 950 (¶ 34) (Miss.Ct.App.2004)). Here, McGlasten made an unsuccessful motion for a directed verdict at the close of the prosecution’s case, and later filed a motion for a JNOV. Therefore, contrary to the State’s contention that this issue is procedurally barred, we find that McGlasten properly preserved this issue for appeal.

II. Sufficiency of the Evidence

¶ 8. An appellate court will not reverse a jury’s verdict if any rational trier of fact could have found that every element of the offense existed beyond a reasonable doubt. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). The “inquiry does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt,” only that all elements existed beyond a reasonable doubt. Id. (internal quotations omitted) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The evidence must be considered in the light most favorable to the prosecution. Id. When reviewing challenges based on the sufficiency of the evidence, “[t]he prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence.” Cates v. State, 823 So.2d 1229, 1232 (¶ 10) (Miss.Ct.App.2002) (quoting McClain v. State, 625 So.2d 774, 778 (Miss.1993)). However, facts and inferences considered in a sufficiency-of-the-evidence challenge that “point in favor of the defendant on an element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty” justify the reversal and rendering of the verdict. Bush, 895 So.2d at 843 (¶ 16) (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶ 9. In Nelson v. State, 32 So.3d 534, 537 (¶ 6) (Miss.Ct.App.2009), we established that:

in order to sustain a conviction of uttering a forgery, the State must have proved beyond a reasonable doubt (1) that the defendant published or uttered as true (2) a forged, altered or counterfeit instrument, (3) knowing the instrument to be forged, altered or counterfeited, (4) with intent to defraud.

(quoting Duhart v. State, 927 So.2d 768, 775 (¶ 15) (Miss.Ct.App.2006)). McGlasten argues that the prosecution did not prove the knowledge and intent elements beyond a reasonable doubt. He further asserts that there is a reasonable inference that he genuinely thought the check was legitimate and only wanted to help Hughes.

¶ 10. While there is no direct evidence of McGlasten’s guilty knowledge and intent, the State presented sufficient evidence from which the jury could infer that McGlasten possessed requisite guilty knowledge and intent. Aycock testified that he did not write the check to McGlas-ten, nor did he authorize anyone else to write the check. McGlasten admitted that he took the check to Piggly Wiggly, endorsed the check, and cashed the check. The only evidence that McGlasten offers to rebut the evidence of his guilty knowledge and criminal intent is his testimony that he empathized with Hughes’s situation and McGlasten’s statement that he voluntarily went to the muffler shop to talk to Aycock after hearing that the check was stolen. This evidence hardly points in favor of McGlasten’s lack of guilty knowledge and criminal intent with the “sufficient force” required by Bush. McGlasten is asking us to give him the benefit of the doubt without offering credible evidence that contradicts the verdict. This issue is without merit.

III. Weight of the Evidence

¶ 11. When examining a weight-of-the-evidence challenge, appellate courts will disturb the jury’s verdict only if “convinced that the verdict is ‘so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice.’ ” Williams v. State, 923 So.2d 990, 994 (¶ 15) (Miss.2006) (quoting Bush, 895 So.2d at 844 (¶ 18)). “[T]he power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Bush, 895 So.2d at 844 (¶ 18) (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (¶ 18) (Miss.2000)).

¶ 12. This is not an exceptional case of the evidence weighing so heavily against the verdict that it would be unconscionable to affirm. The only evidence that we have is McGlasten’s word that he genuinely thought that Hughes’s request was innocent and legitimate, and that he took the initiative to let Aycock know what happened. The fact that McGlasten may have once been in the situation that Hughes portrayed himself to be in does not negate the knowledge or intent elements of uttering a forgery. Also, McGlasten’s going to Aycock on his own might suggest that he did not know that the check was forged; however, the jury did not believe that he was innocent of wrongdoing. McGlasten’s explanations do not constitute an exceptional case in which the evidence weighs heavily against the guilty verdict. This issue is without merit.

¶ 13. THE JUDGMENT OF THE JASPER COUNTY CIRCUIT COURT OF CONVICTION OF UTTERING A FORGERY AND SENTENCE OF SIX YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS TO SERVE, ONE YEAR SUSPENDED, AND ONE YEAR OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JASPER COUNTY.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., NOT PARTICIPATING.


author: STUART, Justice.

text:
    BRADEN FURNITURE COMPANY, INC. v. UNION STATE BANK.
    1110943.
    Supreme Court of Alabama.
    Oct. 19, 2012.

      Ronald R. Brunson, Henry I Frohsin, James F. Barger, Jr., and J. Elliott Walt-hall of Frohsin & Barger, LLC, Birmingham, for appellant.
    Michael R. Lunsford of Porterfield, Harper, Mills, Motlow & Ireland, P.A., Birmingham, for appellee.
    H. Hampton Boles, W. Clark Watson, and John D. Pickering of Balch & Bing-ham, LLP, Birmingham, for amicus curiae Alabama Bankers Association, in support of the appellee.
   STUART, Justice.

Braden Furniture Company, Inc., appeals a summary judgment for Union State Bank. We affirm.

Facts and Procedural History

According to Braden Furniture, between 2008 and 2010, Bonnie Manning, an assistant bookkeeper for Braden Furniture, accessed Braden Furniture’s accounting program and created over 200 unauthorized checks, totaling over $470,000, that she then deposited in her account at Union State Bank. The majority of the checks did not identify a payee, i.e., the payee on the check was left blank. Braden Furniture sued Union State Bank, RBC Bank, and Manpower, Inc., alleging against Union State Bank claims of common-law negligence and wantonness and violations of §§ 7-3-404(d), 7-3-405(b), and 7-3-406, Ala.Code 1975. Union State Bank moved for a summary judgment. The trial court entered a summary judgment for Union State Bank, stating, in pertinent part:

“It is undisputed that there is no customer relationship existing between [Union State Bank] and [Braden Furniture]. Even if a relationship could have existed between Braden Furniture and Union State Bank, the Court finds that [Braden Furniture’s] claims for common law negligence and common law wantonness are displaced by Alabama’s Uniform Commercial Code. Cagle’s, Inc. v. Valley Nat’l Bank, 153 F.Supp.2d 1288, 1297-98 (M.D.Ala.2001); C & N Contractors, Inc. v. Community Bancshares, Inc., 646 So.2d 1357, 1362 (Ala.1994). With regard to [Braden Furniture’s] claims under the Alabama Uniform Commercial Code, [Braden Furniture] amended [its] complaint to make claims pursuant to Alabama Code § 7-3-404, § 7-3-405, § 7-3-406.... Based on the allegations in the complaint and the undisputed evidence presented to this court, the court finds that the Alabama Uniform Commercial Code sections cited by Braden Furniture are inapplicable to this case. In addition, some of the Code sections cited by [Bra-den Furniture] have been held to be defenses, and not causes of action.”

Standard of Review

Our standard of review of a summary judgment is well settled:

“ ‘The standard of review applicable to a summary judgment is the same as the standard for granting the motion.... ’ McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992).
“ ‘A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(8), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present “substantial evidence” creating a genuine issue of material fact — “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’
“Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).”

Pritchett v. ICN Med. Alliance, Inc., 938 So.2d 933, 935 (Ala.2006).

Discussion

This case requires this Court to determine whether provisions in the Alabama Uniform Commercial Code (“the UCC”) displace common-law claims of negligence and wantonness when a drawer seeks to recover from a depository bank the loss of payment for unauthorized checks.

The UCC is found in the Ala.Code 1975, §§ 7-1-101 through 7-11-108. Section 7-1-103, Ala.Code 1975, states the purposes of the UCC:

“(a) This title must be liberally construed and applied to promote its underlying purposes and policies, which are:
“(1) To simplify, clarify, and modernize the law governing commercial transactions;
“(2) To permit continued expansion of commercial practices through custom, usage, and agreement of the parties; and
“(3) To make uniform the law among the various jurisdictions.
“(b) Unless displaced by the particular provisions of this title, the principles of law and equity ... supplement its provisions.”

Braden Furniture contends that the trial court erred in holding that the provisions of the UCC displaced its common-law claims of negligence and wantonness because, it says, allowing its common-law claims to proceed does not “create rights, duties and liabilities inconsistent” with the UCC. See AmSouth Bank v. Tice, 923 So.2d 1060, 1066 (Ala.2005)(reeognizing that “common-law claims are displaced or preempted if allowing the common-law claims would ‘create rights, duties and liabilities inconsistent with those set forth in the [Florida UCC]’”). Specifically, Bra-den Furniture maintains that because the provisions of the UCC do not address the duty and responsibility a depository/collecting bank owes a non-customer drawer when the depository/collecting bank accepts an unauthorized check and then presents it for collection to the drawer’s bank, common-law claims of negligence and wantonness are not displaced by provisions of the UCC.

In C & N Contractors, Inc. v. Community Bancshares, Inc., 646 So.2d 1357 (Ala.1994), a business sued the depository bank of one of its employees. The employee had been fraudulently endorsing company checks and either cashing or depositing them at her bank. The business alleged that the employee’s bank had acted negligently and wantonly in accepting the forged checks. This Court considered whether former § 7-3-405(l)(c), Ala.Code 1975, displaced common-law claims of negligence and wantonness. We concluded that we could not decide the issue because the business presented no authority for its contention that the common-law claims were not displaced by provisions in the UCC. We further opined that under the facts of the case § 7-8^405(1) “appeared] to displace an action for common law negligence and wantonness, and [the business had] cited no authority to establish that it does not displace their claims ....” 646 So.2d at 1362.

In Cagle’s, Inc. v. Valley National Bank, 153 F.Supp.2d 1288 (M.D.Ala.2001), the Alabama federal district court held that the provisions of the UCC displaced a business’s claims of negligence and gross negligence against an employee’s bank that accepted forged business checks for deposit into the employee’s account. The court held that the business’s common-law claims were displaced by the provisions of the UCC because allowing the business to pursue common-law negligence claims “potentially would allow for [the depository bank] to be held liable for allegedly negligent acts, which [were] insufficient to establish liability under the Alabama UCC, which provides a subjective, good faith defense ....”

Thus, C & N Contractors and Cagle’s stand for the proposition that the provisions of the UCC do not displace common-law claims unless dependence on the common-law claims thwarts the purposes of the UCC. Additionally, although the common-law claims may not necessarily be displaced by the provisions of the UCC, when the common-law claims are inconsistent with the remedies and defenses in the UCC, the provisions of the UCC prevail.

We can glean some guidance from this Court’s analysis in AmSouth Bank v. Tice, in which we considered whether provisions of the Florida UCC displaced Alabama common-law claims of negligence and wantonness. In Tice, a bank customer sued his bank, alleging negligence and wantonness based on the bank’s payment of “stale checks” and the bank’s alleged wrongful dishonor of properly payable checks. Initially, we noted that common-law principles supplemented the Florida UCC unless a particular UCC provision or provisions displaced the common-law claims. We further observed:

“Even if the applicable Florida UCC sections do not expressly preempt the common-law negligence and wantonness claims asserted by [the bank customer], those common-law claims are displaced or preempted if allowing the common-law claims would ‘create rights, duties and liabilities inconsistent’ with those set forth in [provisions of the Florida UCC].”

923 So.2d at 1066. We concluded that the customer’s common-law claims of negligence and wantonness were encompassed in provisions of the Florida UCC, see § 674.402, Fla. Stat. Ann. (West 1993) (providing a bank’s liability to a customer for wrongful dishonor), and § 674.404, Fla. Stat. Ann. (West 1993) (providing that a bank is not obliged to pay a check more than six months old). Accordingly, we concluded that the customer’s common-law claims were displaced by the provisions of the Florida UCC because “[a]llowing [the customer] to recover under common-law theories ... would constitute an unwarranted infringement upon the statutory scheme set forth in the UCC and would, for obvious reasons, create rights, duties, and liabilities inconsistent with the UCC.” 923 So.2d at 1067.

In this case, Braden Furniture alleged in its complaint that Union State Bank acted negligently and wantonly by accepting the unauthorized checks. To establish its common-law negligence claim, Braden Furniture must establish that Union State Bank owed it a duty, that Union State Bank breached that duty, and that Braden Furniture was injured as a proximate cause of that breach. Tice, supra. To establish its common-law wantonness claim, Braden Furniture must establish that, with reckless indifference to the consequences, Union State Bank consciously or intentionally did some wrongful act or omitted some known duty and that that act or omission injured Braden Furniture. Tice, supra.

The provisions of the UCC addressing the transaction at issue here are found in the article entitled “Bank Deposits and Collections,” see § 7-4-101 et seq., Ala. Code 1975. Specifically, the UCC sets forth provisions addressing the collection of items by depository and collecting banks, see § 7-4-201 et seq.; the collection of items by payor banks, see § 7-4-301 et seq.; and the relationship between a payor bank and its customer, see § 7-4-401 et seq. Because the UCC does not set forth express provisions regarding the relationship between depository and collecting banks and non-customers of such banks, we must determine whether allowing Braden Furniture’s common-law claims to proceed would “‘create rights, duties and liabilities inconsistent’ ” with the statutory scheme adopted in the UCC.

In this case, Braden Furniture was the drawer of the checks, see § 7-3-103(3), Ala.Code 1975. Braden Furniture’s bank, RBC Bank, was the drawee or “payor bank,” see § 7-3-103(2) and § 7-4-105(3). Union State Bank, which accepted the checks for payment, is the depository bank or collecting bank, see § 7-4-105(2) and (5).

The UCC provides a method to allocate liability among the drawee bank, the depository bank, and the drawers in the event of negotiation of an improperly payable item. Under the UCC, a drawee bank is strictly liable to a drawer for paying improperly payable items. Section 7-4-401(a), Ala.Code 1975, provides:

“A bank may charge against the account of a customer an item that is properly payable from that account .... An item is properly payable if it is authorized by the customer and is in accordance with any agreement between the customer and the bank.”

Hence, if a drawee bank debits a drawer’s account for an improperly payable item, the drawee bank is obligated to recredit the drawer’s account immediately unless the drawer fails to report the unauthorized payment within 180 days or one year depending upon the circumstances, see § 7-4-406(d), (e), and (f), Ala.Code 1975. The statutory scheme further provides that the drawee bank can then seek recourse from the depository/collecting bank that presented the improperly payable item for payment, pursuant to § 7-4-208, Ala.Code 1975, which provides “presentment warranties.” Thus, when addressing the remedy for the negotiation of an improperly payable item, the drafters of the UCC concluded that a drawer’s proper remedy is against its own bank for wrongful payment. Accordingly, to allow a drawer of an improperly paid item to proceed with common-law negligence and wantonness claims against the depository/collecting bank thwarts the purposes of the UCC by creating a right of recourse for the drawer not contemplated by the UCC and by imposing duties and liabilities upon the depository bank not contemplated by and inconsistent with the UCC’s allocation of loss.

Here, Braden Furniture’s common-law claims are based upon Union State Bank’s alleged acceptance of unauthorized checks and Union State Bank’s presentment of those improperly payable checks to Braden Furniture’s bank for payment. Because the UCC provides that transactions such as these are governed by the relationship between the drawee bank and its customer, and between the drawee bank and the depository/collecting bank, to allow Braden Furniture’s common-law claims of negligence and wantonness to proceed would “ ‘create rights, duties and liabilities inconsistent’ ” with those set forth in the UCC. Tice, 923 So.2d at 1066. Braden Furniture has an adequate remedy under the UCC’s scheme for the allocation of loss. Therefore, its common-law claims are displaced by the allocation-of-loss provisions of the UCC. Accordingly, the trial court did not err in entering a summary judgment for Union State Bank in this regard.

Braden Furniture further contends that the trial court erred in entering a summary judgment for Union State Bank on its UCC claims. In its second amended complaint, Braden Furniture alleged violations of § 7-3 — 404(d), § 7 — 8—405(b), and § 7-3-406, Ala.Code 1975. In its brief to this Court, Braden Furniture’s arguments with regard to this issue are fragmented and disjointed and do not contain the legal and factual analysis necessary to comply with Rule 28(a)(10), Ala. R.App. P.

“Rule 28(a)(10) requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party’s position. If they do not, the arguments are waived. Moore v. Prudential Residential Servs. Ltd. P’ship, 849 So.2d 914, 923 (Ala.2002); Arrington v. Mathis, 929 So.2d 468, 470 n. 2 (Ala.Civ.App.2005); Hamm v. State, 913 So.2d 460, 486 (Ala.Crim.App.2002). ‘This is so, because “ ‘it is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undeli-neated general propositions not supported by sufficient authority or argument.’ ” Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 9 (Ala.2007) (quoting Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003), quoting in turn Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994)).”

White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008).

Because Braden Furniture does not make cogent legal and factual arguments justifying reversal of the summary judgment, we affirm the summary judgment in favor of Union State Bank on its claims alleging violations of the UCC as set out in the second amended complaint.

Conclusion

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

MALONE, C.J., and SHAW and WISE, JJ., concur.

PARKER, J., concurs in the result.

      . Former § 7-3-405(1), Ala.Code 1975, provided the “fictitious payee rule” and generally precluded the liability of a drawee bank to a drawer, see § 7-4-401, and the liability of a collecting bank/payor bank, see § 7-4-207. The "fictitious payee rule” is now codified at § 7-3-404.

      . Section 7-3-103(3), Ala.Code 1975, defines a "drawer” as "a person who signs or is identified in a draft as a person ordering payment.”

      . Section 7-3-103(2), Ala.Code 1975, defines a "drawee” as "a person ordered in a draft to make payment.”

      . Section 7-4-105(3), Ala.Code 1975, defines a "payor bank” as a "bank that is the drawee of a draft.”

      . A "depository bank” is defined as "the first bank to take an item even though it is also the payor bank, unless the item is presented for immediate payment over the counter.” § 7-4-105(2), Ala.Code 1975'. A "collecting bank” is "a bank handling an item for collection except the payor bank.” § 7-4-105(5), Ala. Code 1975.


author: WOODALL, Justice. BOLIN, Justice

text:
    Ex parte PHENIX CITY BOARD OF EDUCATION. (In re The Lisle Company, Inc. v. Phenix City Board of Education et al.).
    1111303.
    Supreme Court of Alabama.
    Oct. 19, 2012.
    Sydney S. Smith of Smith & Smith, P.C., Phenix City, for petitioner.
    Richard M. Kemmer III and Christopher L. Meacham of Meacham & Earley, P.C., Phenix City; and James R. McKoon, Jr., of McKoon & Gamble, P.C., Phenix City, for respondent.
   WOODALL, Justice.

The Phenix City Board of Education (“the Board”) seeks mandamus relief from the Russell Circuit Court’s denial of the Board’s motion to dismiss or, in the alternative, for a summary judgment on claims brought against it by The Lisle Company, Inc. (“Lisle”). Because the Board is immune from suit pursuant to § 14, Ala. Const.1901, we grant the Board’s petition and issue the writ.

In October 2007, Lisle contracted with the Board to construct a facility known as “The New Central High Freshman Academy.” Controversies arose between Lisle and the Board during construction. According to the Board, Lisle refused to cure to the Board’s satisfaction defects identified by the project architect. In June 2010, the Board notified Lisle that the contract was being terminated. The Board also made a demand on Berkley Regional Insurance Company, which was acting as surety for Lisle, for completion of the work. The Board argues that negotiations for completion of the work continue, but that, as of the filing of this petition, the Board has not fully accepted the work on the project. The Board also alleges that the parties have not reached an agreement as to whether the Board owes Lisle money or whether Lisle owes the Board money. Lisle, however, contends that it “performed the contract properly and that the Board has failed and refused to pay amounts remaining ... [under] the contract.” Lisle’s brief, at iv.

In June 2011, Lisle sued the Board and the project architect, alleging claims of breach of contract and quantum meruit. The Board moved the circuit court to dismiss the claims against it or, in the alternative, to enter a summary judgment in the Board’s favor, arguing that the Board is a State agency and, therefore, is entitled to immunity pursuant to § 14, Ala. Const. 1901. After a hearing, the circuit court denied the Board’s motion. The Board has petitioned this Court for mandamus relief from that order.

This Court recently stated:

“Section 14, Ala. Const.1901, provides ‘[t]hat the State of Alabama shall never be made a defendant in any court of law or equity.’ It is well settled in Alabama that ‘[l]ocal school boards are agencies of the State, not of the local governmental units they serve, and they are entitled to the same absolute immunity as other agencies of the State.’ ”

Ex parte Montgomery County Bd. of Educ., 88 So.3d 837, 841 (Ala.2012) (quoting Ex parte Bessemer Bd. of Educ., 68 So.3d 782, 789 (Ala.2011)). This Court has also stated that, “[l]ike county school boards, [city boards of education] are agencies of the state, empowered to administer public education within the cities,” Enterprise City Bd. of Educ. v. Miller, 348 So.2d 782, 783 (Ala.1977), and that “city boards of education [are] immune from civil actions.” Ex parte Phenix City Bd. of Educ., 67 So.3d 56, 59 (Ala.2011) (citing Miller).

Lisle concedes that the Board is a State agency and that it is immune from suit on tort claims and claims of breach of an implied contract. However, Lisle argues that § 14 immunity does not, and should not, apply to the express contractual obligations vcluntarily undertaken by the Board in this case. However, our caselaw supports no such distinction.

“It is well established that the State and its agencies have absolute immunity from suit, not simply immunity from certain claims. That is the plain meaning of § 14 (‘the State of Alabama shall never be made a defendant in any court’). See also Mitchell v. Davis, 598 So.2d 801, 806 (Ala.1992) (‘The State and its agencies have absolute immunity from suit in any court under [§ 14].’).... For actions against the State or one of its agencies, there are no exceptions....”

Alabama Dep’t of Corr. v. Montgomery Cnty. Comm’n, 11 So.3d 189, 194 (Ala.2008).

As an agency of the State, the Board has a clear legal right under § 14 to absolute immunity from suit. Therefore, we grant the Board’s petition and instruct the circuit court to dismiss the claims against the Board.

PETITION GRANTED; WRIT ISSUED.

MALONE, C. J., and MURDOCK and MAIN, JJ., concur.

BOLIN, J., concurs specially.

BOLIN, Justice

(concurring specially).

I concur fully with the main opinion. I write specially to quote from the Phenix City Board of Education’s reply brief as to what should be the denouement of this mandamus relief, as well as future similar proceedings involving sovereign immunity under § 14, Ala. Const.1901:

“To defeat the prohibition of § 14, the State official, and not the State agency (emphasis added [in reply brief]), must be the named defendant and the facts of the litigation must fit into one of the recognized ‘exceptions.’ If those requirements are not met, the trial court has no subject matter jurisdiction. Because it does not have subject matter jurisdiction, the trial court cannot allow amendments to add the State official as a named defendant. Ex parte Alabama Department of Transportation, 6 So.3d 1126 (Ala.2008) ...; [Ex parte Alabama Department of Transportation, 978 So.2d 17 (Ala.2007)].”

(Petitioner’s reply brief, pp. 10-11.)

Such is the path plaintiffs must take to scale the “ ‘almost invincible’ ” “ ‘wall’ of [sovereign] immunity” and imbue a trial court with the subject-matter jurisdiction necessary to determine whether an action against the State of Alabama or one of its agencies falls within one of the six categories of actions not prohibited by Art. I, § 14, Ala. Const.1901. Board of Sch. Comm’rs of Mobile Cnty. v. Weaver, 99 So.3d 1210, 1217 (Ala.2012) (quoting Alabama State Docks v. Saxon, 631 So.2d 943, 946 (Ala.1994)).