author: BARNES, J., for the Court.

text:
    Scotty B. LYLES, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-KA-00993-COA.
    Court of Appeals of Mississippi.
    May 19, 2009.

      George T. Holmes, Jackson, Brenda Jackson Patterson, Stephanie L. Mallette, attorneys for appellant.

      Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   BARNES, J., for the Court.

¶ 1. Scotty B. Lyles appeals the judgment of the Oktibbeha County Circuit Court which convicted him of violating Mississippi Code Annotated section 97-19-55 (Rev.2000) for obtaining merchandise of a total value of $100 or more under false pretenses by knowingly and intentionally writing a bad check. After the indictment was amended to reflect Lyles’s status as a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev.2000), he was sentenced to serve a term of life imprisonment in the Mississippi Department of Corrections without eligibility for parole or probation. Finding no reversible error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶2. On December 23, 2005, Lyles purchased $105.79 of liquor from the Stark-ville Discount Liquor Store. To pay for his purchase, he presented a check dated December 23, 2008, to the store clerk, Gerald Richardson. Prior to accepting the check, Richardson required Lyles to write on the check his telephone number, driver’s license number, and his social security number. Richardson then took the cheek and printed “Starkville Discount Liquor Store” on the payee line at Lyles’s request. Lyles filled in the numerical amount of the purchase, but he did not fill in the written amount in the space below. Lyles also signed his name on the memo line rather than on the drawer line. Richardson accepted the check and gave Lyles the liquor. The check presented by Lyles was later returned “Account Closed.” According to store policy, Richardson was required to pay for the merchandise out of his own pocket after the check was returned, and the check was later forwarded to the district attorney’s bad check unit. Lyles was later found guilty at a jury trial. At the sentencing hearing to determine Lyles’s status as habitual offender, the circuit court found beyond a reasonable doubt that Lyles was a habitual offender under section 99-19-83 and, accordingly, sentenced him to life imprisonment without eligibility for parole or probation in the custody of the Mississippi Department of Corrections. Lyles filed a motion for a judgment notwithstanding the verdict and/or a new trial and a motion to reconsider the sentence, both of which were denied by the circuit court.

¶ 3. On appeal, Lyles raises five issues: (1) that the evidence was insufficient to find him guilty of false pretense, (2) that he was denied a fair trial by the introduction into evidence of over $7,000 in bad checks not charged in the indictment, (3) that the indictment was fatally defective for failing to allege the property was procured with intent to cheat, (4) that life imprisonment without eligibility for parole is disproportionate to the crime of writing a check on a closed account, and (5) that the circuit court erred in failing to instruct the jury on the elements of the indicted charge.

DISCUSSION

I. Whether the evidence was sufficient to find Lyles guilty of fraudulent intent.

¶ 4. The standard of review for the legal sufficiency of evidence is well settled:

We must, with respect to each element of the offense, consider all of the evidence — not just the evidence which supports the case for the prosecution — in the light most favorable to the verdict. The credible evidence which is consistent with the guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. We may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

Thorson v. State, 895 So.2d 85, 98(¶ 17) (Miss.2004) (quoting Sheffield v. State, 749 So.2d 128, 125(¶ 9) (Miss.1999)).

¶ 5. Lyles was charged with knowingly and intentionally writing a bad check under section 97-19-55 which states that:

It shall be unlawful for any person with fraudulent intent:
(a) To make, draw, issue, utter or deliver any check, draft or order for the payment of money drawn on any bank, corporation, firm, or person, knowing at the time of making, drawing, issuing, uttering or delivering said check, draft or order that the maker or drawer has not sufficient funds in or on deposit with such bank, corporation, firm, or person for the payment of such check, draft or order in full, and all other checks, drafts or orders upon such funds then outstanding;
(b) To close an account without leaving sufficient funds to cover all outstanding checks written on such account.

¶ 6. Lyles contends that his conviction should be reversed because he did not violate the statute due to his lack of knowledge that his funds were insufficient to cover the check. He also contends that his conviction should be reversed because the check that he wrote was dated December 23, 2008, thereby making the check a future obligation to pay on the same day three years after he obtained the merchandise.

¶ 7. Regarding Lyles’s first contention, the prosecution presented the testimony of Sammy Slaughter, an employee of Am-South Bank in Starkville, Mississippi. Slaughter’s testimony securely established that from the beginning of Lyles’s account, Lyles received regular monthly account statements regarding his account balance and transactions. Slaughter further testified that AmSouth closed Lyles’s account on September 9, 2005, due to over $7,000 of returned checks, and that a few days after this closure, Lyles would have received an account closure notification in the mail thereby indicating that Lyles did, in fact, know of his negative balance and account closure prior to writing the check at issue.

¶ 8. The Mississippi Supreme Court stated in Brown v. State, 829 So.2d 93, 103(¶ 22) (Miss.2002) (citation omitted) that “[i]f there is in the record substantial evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions, the verdict of guilty is thus placed beyond our authority to disturb.” Moreover, the supreme court recognized in Moore v. State, 996 So.2d 756, 760(¶ 12) (Miss.2008) that “[t]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Further, the Court accepts “as true all of the evidence that is favorable to the State, including all reasonable inferences that may be drawn therefrom, and ... disregard[s] evidence favorable to [the defendant].” Id. at 760-61 (¶ 12) (quoting Anderson v. State, 904 So.2d 973, 977 (¶ 8) (Miss.2004)).

¶ 9. In light of Brown and Moore, it is apparent that the jurors at Lyles’s trial accepted Slaughter’s testimony as true and properly inferred that Lyles did have knowledge that his account was closed when he wrote the bad check to the liquor store. We find that Slaughter’s uncontro-verted testimony was legally sufficient to establish that Lyles knew his account had a negative balance and had been closed for almost four months prior to his writing the check to Starkville Discount Liquor Store.

¶ 10. As to his second contention regarding his alleged future obligation to pay, Lyles relies on Henderson v. State, 534 So.2d 554 (Miss.1988) for the proposition that because his check was dated for December 23, 2008, a date three years in the future, the check was issued as a future obligation rather than for present value. This proposition is insufficient to reverse Lyles’s conviction as Henderson is easily distinguishable from the case at bar.

¶ 11. In Henderson, the defendant was convicted under section 97-19-55 of the Mississippi Code Annotated for writing a bad check. The court reversed her conviction on the ground that the statute first requires that when the maker writes the check, “she has to know at the time that she ... ‘has not sufficient funds in or on deposit with such bank[.]’ ” Henderson, 534 So.2d at 556. (emphasis added). The court reasoned that even though the check was “written on and dated for October 4, by agreement it was not to be presented for payment until October 28.” Id. Further, the court explained that “[h]ad the parties contemplated cashing the check on October 4, there would not have been insufficient funds. At most, however, Mrs. Henderson obligated herself that when the check would be presented on October 28, there would be sufficient funds on deposit on that date.” Id. Accordingly, the court concluded that it was “obvious” that Henderson did not violate section 97-19-55 because the check was written with an express agreement that it would not be cashed until October 28; thus, it represented “a future obligation as to payment of the check not contemplated by the statute.” Id.

¶ 12. By contrast, the questions raised in Henderson are completely absent from the case at hand. In Henderson, the check was exchanged for an option contract, which may not fall under the “money, services, or any article of value” portion of the statute. Here, Lyles wrote the bad check in exchange for liquor, which is clearly an article of value as contemplated by the statute. What is more, there was never any express or implied agreement between Lyles and the store clerk or owner as to the date of the check, when it was to be cashed, or when Lyles’s obligation to pay would come to fruition. Not only did Lyles lack sufficient funds to cover the check, but the check was also written on an account that was closed more than three months prior to issuance. Logically, it would be impossible for the check to ever be honored since the account was closed and had been closed for quite some time before the check was written. Moreover, there is no evidence to show that the post-dating of the check from a closed account is anything other than fraud by Lyles. For these reasons, we conclude the evidence was legally sufficient to show Lyles’s knowledge of his closed account, as well as an exchange for present value rather than for a future obligation. Accordingly, Lyles was properly found guilty of fraudulent intent as contemplated by section 97-19-55 of the Mississippi Code Annotated. This issue is without merit.

II. Whether the introduction of Lyles’s bank records into evidence was necessary to show knowledge and intent, and the probative value was not substantially outweighed by the possibility of unfair prejudice.

¶ 13. “The standard of review regarding the admission or exclusion of evidence is abuse of discretion.” Mason v. State, 971 So.2d 618, 620(¶ 11) (Miss.Ct.App.2007) (citation omitted). “Absent an abuse of that discretion, the trial court’s decision will not be disturbed on appeal.” Id.

¶ 14. For the reasons set forth below, we conclude that the trial court did not abuse its discretion by allowing Lyles’s bank records to be admitted into evidence pursuant to Rules 403 and 404(b) of the Mississippi Rules of Evidence. Lyles relies on Elmore v. State, 510 So.2d 127 (Miss.1987) for the proposition that evidence of unrelated crimes should not be allowed into evidence against the defendant at trial. In Elmore, the defendant was charged with sexual crimes against his stepdaughter, V.E. Id. at 128. The trial court allowed the prosecution to introduce testimony that indicated that Elmore had committed crimes against other members of the family (aside from V.E.) that were sexual in nature. Id. at 129. Because these crimes did not fall under any of the exceptions to the rule, the supreme court reversed the defendant’s conviction on the ground that the jury was improperly diverted from the issue of whether the defendant committed the one instance of sexual battery with which he was charged. Id. at 131.

¶ 15. While Rule 404(b) of the Mississippi Rules of Evidence states that other crimes are inadmissible to prove the “character of a person in order to show that he acted in conformity therewith,” the rule does allow the introduction of past crimes for the purpose of “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” The State aptly relies on Riley v. State, 254 Miss. 86, 180 So.2d 321 (1965), for the proposition that the evidence was properly admitted to show knowledge and intent rather than conformity with prior bad acts. The defendant in Riley had been caught and prosecuted under Mississippi’s “Peeping Tom” law. Id. at 89, 180 So.2d at 322. The defendant contended that he was unaware of his actions and offered evidence in support of his contentions. Id. at 92, 180 So.2d at 324. To rebut this claim, the prosecution introduced other instances of the defendant’s “peeping.” Id. at 90, 180 So.2d at 323. The court explained that:

Evidence of the conduct of the accused on other occasions, though disconnected from the offense on trial, is frequently admitted in cases of conspiracy, uttering forged instruments and counterfeit coin, and receiving stolen goods, — not, however, for the purpose of inducing the jury to believe the accused [is] guilty of the crime for which he is on trial, because he had committed another similar crime, but for the purpose of excluding him from setting up the defense that he did the act innocently and without knowledge of [his] guilt.

Id. at 96, 180 So.2d at 326 (citing Raines v. State, 81 Miss. 489, 497, 33 So. 19, 20-21 (1902)). Additionally, in Carter v. State, 953 So.2d 224, 229(¶ 11) (Miss.2007), the Mississippi Supreme Court stated that “[i]n admitting evidence of [the defendant’s] prior felony convictions for the limited purposes of showing intent, the circuit court determined that ‘in this particular case, ... the intent of [the defendant] is greatly an issue.’ ” Id. Moreover, “the circuit court analyzed the evidence under [Mississippi Rule of Evidence] 403 and found that it was ‘extremely probative of [the defendant’s] intent, a necessary element, and that outweighs the prejudicial effect in this case.’ ” Id.

¶ 16. According to Riley and Carter, it is clear that as long as the trial judge engages in a Rule 403 balancing test regarding the evidence to be admitted, such evidence of prior bad acts is admissible to show knowledge and intent if the probative value outweighs the potential prejudicial effect of the evidence. A close reading of the trial transcript indicates that the circuit judge did, in fact, engage in a Rule 403 balancing test and properly admitted the bank statements for the purpose of showing knowledge of the account’s closure and Lyles’s intent to commit the crime of false pretenses, both of which are elements under section 97-19-55. Slaughter testified that these bank statements would have been mailed to Lyles according to bank policy, thereby making him aware that there was no money in his account and that the account was subsequently closed due to lack of funds. Specifically, the statements showed that from April to July 2005, small deposits and withdrawals were being made on the account; then, during the July billing cycle, Lyles began to make large withdrawals with no corresponding deposits resulting in a negative balance of more than $1,000. By the time the account was closed in September, the deficit on Lyles’s account was more than $7,000. By introducing these pertinent bank statements, the State showed that this was not an instance of innocent mathematical errors that overextended Lyles’s account, but rather that Lyles knew that there were insufficient funds in his account to pay any additional checks.

¶ 17. As a consequence, the admittance of the bank statements properly fell under Rule 404(b) of the Mississippi Rules of Evidence exceptions of knowledge and intent. Additionally, under Rule 403, the evidence was not overly prejudicial since the bank record did not include any information regarding other indictments; it was accompanied by a limiting instruction, and the prosecutor did not emphasize any other bounced checks. We conclude that the circuit court did not abuse its discretion in admitting the bank records since the bank records had little prejudicial effect and were admitted to prove knowledge and intent. This issue is without merit.

III. Whether the indictment was proper in its wording and not fatally defective.

¶ 18. The legal sufficiency of an indictment is an issue of law; accordingly, our review is de novo. Tran v. State, 962 So.2d 1237, 1240(¶ 12) (Miss.2007). In Gilmer v. State, 955 So.2d 829, 836-37(¶24) (Miss.2007) (citations omitted), the Mississippi Supreme Court explained that:

An indictment must contain (1) the essential elements of the offense charged, (2) sufficient facts to fairly inform the defendant of the charge against 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.

In sum, “[a]n indictment must specifically reference the elements of a charged offense so that it informs a defendant of the charges against him and the possible defenses to the charged offense.” Clark v. State, 923 So.2d 256, 257(¶ 3) (Miss.Ct.App.2006) (citation omitted). “The ultimate test, when considering the validity of an indictment on appeal, is whether the defendant was prejudiced in the preparation of his defense.” Fuqua v. State, 938 So.2d 277, 281(¶ 11) (Miss.Ct.App.2006) (quoting Medina v. State, 688 So.2d 727, 730 (Miss.1996)).

¶ 19. Lyles contends that the indictment with which he was charged is fatally defective for its failure to use the words “intent to cheat” or “intent to defraud.” The statute under which Lyles was indicted, section 97-19-55, makes it “unlawful for any person with fraudulent intent ... [t]o make, draw, issue, utter or deliver any check ... knowing at the time ... that the maker or drawer has not sufficient funds in or on deposit ... for the payment of such check ... in full, and all other checks ... upon such funds then outstanding!.]” The indictment charged that Lyles “unlawfully, wilfully and feloniously” obtained merchandise by presenting a check, knowing at the time of issue that he did not have an account at the bank. The indictment also charged that Lyles did, “by virtue of said false and fraudulent representations, cheat and defraud” Richardson, the bank, and the liquor store.

¶ 20. Lyles relies on McBride v. State, 141 Miss. 186, 104 So. 454 (1925) for the proposition that “intent to defraud” must be specifically included in the indictment. The supreme court in McBride stated that “[t]he statute does not make it a crime to draw bad checks. The crime therein defined is the drawing, uttering, or delivering of bad checks, orders, or drafts with the intent to defraud.” Id. at 190-91, 104 So. at 455. The court further stated that “[i]t is true that the indictment charged that the drawing of the check by appellant was done unlawfully and feloniously. But that is not sufficient.” Id. The court concluded that it was the purpose of the Legislature to “prevent the drawing, uttering, or delivering of fraudulent checks and drafts!;] [thus,] the indictment was fatally defective in that it did not charge that the check in question was drawn by [the] appellant with the intent to defraud.” Id. (emphasis added).

¶ 21. Contrary to Lyles’s position, the indictment does sufficiently allege an intent to cheat or defraud. While the word “intent” is not specifically used in Lyles’s indictment, it does contain the term “wil-fully.” The indictment in McBride only included the words “unlawfully and felo-niously” without mention of willfulness, intent, or fraudulent representation. Black’s Law Dictionary 1630 (8th ed.2004), defines willful as “[v]oluntary and intentional, but not necessarily malicious.” (Emphasis added). In Moore v. State, 676 So.2d 244, 246 (Miss.1996), the terms “willfully,” “knowingly,” and “intentionally” were considered by our own supreme court to be interchangable. “Moreover, “wilful’ means nothing more than doing an act intentionally.” Id. (citation omitted). “The charge that one wilfully did an act is to charge he intended doing such act.” Dorroh v. State, 229 Miss. 315, 321, 90 So.2d 653, 655 (1956). The indictment also charged that Lyles, through “false and fraudulent representations, cheat[ed] and defraud[ed]” the victims. “Fraudulent representation,” also termed “misrepresentation,” is defined as an “act of making a false or misleading assertion about something, usually with the intent to deceive” and with the intent that the party will “detrimentally rely on it.” Black’s Law Dictionary 1022 (8th ed.2004).

¶22. The purpose of the indictment was to afford Lyles “notice and a reasonable description of the charges” in order to help him prepare a defense. Spicer v. State, 921 So.2d 292, 319(¶ 58) (Miss.2006) (citing Williams v. State, 445 So.2d 798, 804 (Miss.1984)). “Therefore, an indictment is only required to have a clear and concise statement of the elements of the crime the defendant is charged with.” Id. Although the indictment did not expressly contain the phrase “intent to defraud,” we find that the language was sufficient to furnish Lyles notice of the charge against him as it charged willfulness, “fraudulent representations,” and the “defrauding]” of Richardson. Further, Lyles has not identified any prejudice in the presentation of his defense resulting from the wording in the indictment. Thus, this assignment of error is without merit.

IV. Whether life imprisonment is constitutionally disproportionate for Lyles’s conviction as a habitual offender.

¶ 23. “It is well settled in this State that the imposition of [a] sentence in a criminal proceeding is within the sole discretion of the trial judge, and that [the appellate court] will not reverse a sentence where it is within the limits prescribed by statute.” Corley v. State, 536 So.2d 1314, 1319 (Miss.1988) (citing Johnson v. State, 461 So.2d 1288, 1292 (Miss.1984)). For the reasons set forth below, we find no reversible error in the sentencing of Lyles by the circuit court; therefore, we affirm Lyles’s sentence.

¶ 24. Lyles was sentenced to life imprisonment without the eligibility for parole or probation under Mississippi’s habitual offender statute after being convicted of issuing a check with fraudulent intent. He argues that the crime for which he was convicted, writing a bad check for a little over $100, is disproportionate to the sentence he received. The habitual offender law, Mississippi Code Annotated section 99-19-83, states that:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

After Lyles was found guilty, the circuit court judge held a sentencing and proportionality hearing in which Lyles was sentenced to life imprisonment without eligibility for parole or probation. The circuit court based Lyles’s sentence on his prior criminal history, which consisted of thirteen felonies, spanning from theft to burglary to robbery. The circuit court judge commented:

This gentleman [Lyles] has the most felony convictions out of any one that I have dealt with, as either a trial lawyer or as a prosecutor or as a trial judge since I’ve been back home. And during my time on the Supreme Court when I was a law clerk, I don’t remember any one having that many felonies.

The majority of the offenses took place in Cook County, Illinois, where Lyles was convicted, at least once, of robbery. It is well settled that robbery is a crime of violence for the purposes of Mississippi’s habitual-offender statute. Magee v. State, 542 So.2d 228, 236 (Miss.1989).

¶ 25. In McGruder v. Puckett, 954 F.2d 313, 314 (5th Cir.1992), a federal habeas appeal, the defendant was charged with burglary of an automobile, specifically for stealing twenty cases of beer from a delivery truck. He was sentenced under the Mississippi habitual-offender law to life in prison without the hope of parole. The defendant appealed to the Mississippi Supreme Court which examined his five prior felony charges and found that the sentence was not unconstitutionally disproportionate. Id. The United States Court of Appeals for the Fifth Circuit later denied McGruder’s petition for habeas corpus, finding his five prior felonies to be sufficient grounds to sentence him under the habitual-offender statute. Id. at 316-17. In this case, we have not five, but thirteen, prior felony convictions.

¶ 26. Under the habitual-offender statute, the imposed sentence “refleet[s] the seriousness of [the] most recent offense, not as it stands alone, but in the light of [a defendant’s] prior offenses.” Id. at 316. At the sentencing hearing, the circuit court judge acknowledged that in light of the present offense, this would seem to be a “very hard sentence.” However, the judge also observed that:

[W]hen the Court considers Mr. Lyles’s life work and more importantly, his life’s criminal work, the Court finds that this sentence is not disproportionate because of Mr. Lyles’s apparently seeming inability to conform his behavior to the requirements that ... society expects of him.

We agree. In Rummel v. Estelle, 445 U.S. 263, 265-66, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), the defendant, who had previously been convicted and sentenced to prison for two separate felonies, was convicted of a third felony, obtaining $120.75 by false pretenses, and received a mandatory life sentence pursuant to Texas’s recidivist statute. The two prior felonies were also property theft related — “a fraudulent use of a credit card to obtain [eighty dollars’] worth of goods or services, and passing a forged check in the amount of $28.36.” Id. The United States Supreme Court found that Rummel’s life sentence was not disproportionate, stating that the purpose of the habitual-offender statutes is to deal “in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.” Id. at 276, 100 S.Ct. 1133.

¶ 27. Thus, as Lyles has been convicted of thirteen prior felonies, at least one of which was violent, we conclude that Lyles’s sentence of life imprisonment without eligibility for parole or probation is not unconstitutionally disproportionate to the offense for which he was convicted as a habitual offender. This issue is without merit.

V. Whether the instruction given to the jury was correct and contained all elements of the indicted charge.

¶ 28. The Mississippi Supreme Court has stated that “[instructing the jury on every element of the charged crime is so basic to our system of justice that it should be enforced by reversal in every case where inadequate instructions are given, regardless of a failure to object or making a different objection at trial.” Shaffer v. State, 740 So.2d 273, 282(¶ 31) (Miss.1998). ‘“Just as the State must prove each element of the offense, the jury must be correctly and fully instructed regarding each element of the offense charged.’ Failure to submit to the jury the essential elements of the crime is ‘fundamental’ error.” Id. (internal quotations omitted). Accordingly, “[a] conviction is not valid where the prosecution does not prove each element of the charged offense beyond a reasonable doubt.... Where the jury is not even instructed on one of the vital elements of the offense, the conviction must not survive the scrutiny of [the appellate court].” Id. at (¶ 32).

¶ 29. Lyles contends that the language in the jury instruction was inconsistent with the language in the indictment and that the failure of the State to submit an element instruction consistent with the language in the indictment is reversible error. As demonstrated below, we conclude that the jury instruction presented to the jury properly contained all the elements of the indicted charge.

¶ 30. In Nix v. State, 8 So.3d 141 (¶ 11) (Miss.2009), the defendant argued that his conviction should be overturned because the jury instruction contained language that differed from the language of the indictment. The supreme court rejected that contention, concluding that “although jury instructions generally should track the language of indictments, an instruction is not necessarily fatally defective for failure to do so, so long as the instruction ‘accurately follows the requisite elements of the crime.’ ” Id. at (¶ 16) (quoting Duplantis v. State, 708 So.2d 1327, 1344(¶ 76) (Miss.1998)). “A jury instruction’s variance from the language of the indictment ‘must be material to accurately categorize an instruction as error.’ ” Id. (citing Williams, 445 So.2d at 806).

¶ 31. In Williams, the indictment charged the defendant with taking a money box, a billfold, and some money. Id. at 806. The instruction, however, directed the jury to determine whether the defendant took the money box, billfold, or “anything of value.” Id. The court found that the jury instruction, although a variance from the indictment, did not constitute error. Id. at 807. In support of its finding, the court noted that the instruction did not: (1) “materially vary from the charge alleged in the indictment[,]” (2) accuse the defendant of “a crime separate and distinct from that stated in the indietment[,]” or (3) “refer to alleged facts of which [the defendant] had no notice.” Id.

¶ 32. The jury instruction, S-2, charged the jury to find Lyles guilty if it believed, beyond a reasonable doubt, that Lyles “did with fraudulent intent unlawfully, willfully and feloniously” issue a check knowing at the time that he did not have sufficient funds on deposit with AmSouth Bank for payment of the check. The difference at issue between the jury instruction and the indictment is that the words, “did not have sufficient funds” replaced the indictment wording “did not have an account in said bank.” However, both phrases are indicative of essentially the same meaning in the context of this case. While Lyles originally had an account at AmSouth Bank, it was closed due to insufficient funds prior to his writing the check at issue. Accordingly, Lyles had neither an account nor sufficient funds at the time he issued the check at the liquor store.

¶ 33. It is apparent that, even though the language of the instruction varied from that of the indictment, it was not a material variance under the facts of this case as Lyles did not have an account at AmSouth Bank as it had been closed due to insufficient funds. Further, the requirements for fraudulent intent are clearly within the jury instruction, and the jury was properly instructed on what it was to decide. Therefore, we find that the jury was sufficiently instructed to be able to convict Lyles under section 97-19-55. This issue is without merit.

CONCLUSION

¶ 34. In light of the foregoing, we conclude that Lyles was properly convicted under section 97-19-55 as he intentionally issued a check for present value with knowledge that his account was closed and that he was properly sentenced under the Mississippi habitual-offender law. Accordingly, we affirm.

¶ 35. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY OF CONVICTION OF OBTAINING MERCHANDISE VALUED AT $100 OR MORE UNDER FALSE PRETENSES AND SENTENCE AS A HABITUAL OFFENDER OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIB-BEHA COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.

      . The court also expressed doubt as to whether "obtaining an option to purchase realty with one[-]year right-of-exercise constituted 'money, services or any article of value,' [as] contemplated by the statute.” Henderson, 534 So.2d at 556.

      . The account statements showed the returned checks that resulted in the $7,000 deficit, but there was no indication that any criminal prosecution resulted from those returned checks.


source: Caselaw Access Project

author: CARLTON, J., for the Court.

license: Public Domain

text:
    Eddie Lamont HENDERSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-00551-COA.
    Court of Appeals of Mississippi.
    May 19, 2009.
    David L. Walker, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   CARLTON, J., for the Court.

¶ 1. On August 22, 2007, Eddie Henderson was indicted by a Panola County grand jury for burglary of the dwelling of Linda Jefferson with the intent to commit larceny pursuant to Mississippi Code Annotated section 97-17-23 (Supp.2008). On March 17, 2008, a jury in the Panola County Circuit Court found Henderson guilty of burglary. Henderson was sentenced to five years in the Mississippi Department of Corrections (MDOC) to be followed by five years of post-release supervision.

¶ 2. Henderson now timely appeals. Henderson argues that the State improperly elicited testimony from him regarding his post-arrest silence and that the trial court abused its discretion in denying his motion for a mistrial on that basis. Under the Mississippi Supreme Court’s jurisprudence, a defendant’s post-arrest silence can be used against him when there is no evidence in the record that the defendant’s right to remain silent was triggered by-receiving Miranda warnings. Because we find no evidence in the record that Henderson was Mirandized, we must affirm Henderson’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 3. Jefferson testified at trial that on January 1, 2007, at approximately 5:30 a.m., she heard a knock and kicking at her apartment door in Batesville, Mississippi. When Jefferson went to the door, she recognized Henderson from the neighborhood and cracked the door open. It was then that Henderson pushed his way into Jefferson’s apartment, grabbed her wrist, and told her, “We ain’t going nowhere.” After a brief struggle, Jefferson ran to a neighbor’s home and called the police.

¶ 4. Officer Nick Hughes responded to Jefferson’s call. Upon arrival, Jefferson told Officer Hughes that someone was in her apartment. Officer Hughes testified that when he approached Jefferson’s apartment, the door was open. When Officer Hughes went inside, he saw Henderson standing in Jefferson’s living room putting a candle into his coat pocket. Officer Hughes said that when he asked Henderson what he was doing, Henderson said nothing and “just stood there.”

¶ 5. Officer Hughes stated that he told Henderson to put the candle down and to come out of Jefferson’s apartment. However, Henderson put the candle down and then “took off running.” Officer Hughes subsequently apprehended Henderson and arrested him. Officer Hughes stated that Henderson appeared to be highly intoxicated when he was captured and placed in the patrol car.

¶ 6. Officer Hughes testified to the following at trial:

State: Did [Henderson] tell you that he had permission to be in the apartment? Officer Hughes: He hardly said anything to me. No, sir.
State: Did he tell you that he was having a relationship with [Jefferson]? Officer Hughes: No, never. No, sir.

No evidence exists in the record that Henderson received Miranda warnings either before or after he was apprehended.

¶ 7. When Henderson took the stand in his own defense, he testified that he knew Jefferson and that they were on a friendly basis with each other. He claimed that in the past, he and Jefferson had a “one-night stand.” Henderson said he was at the apartments where Jefferson lived because his cousin, Willie Johnson, also lived in the same complex and he wanted to get a ride home from Johnson. However, when Johnson said he was not going to let Henderson into his apartment or give him a ride home, Henderson knocked on Jefferson’s door.

¶8. Henderson stated that when he knocked on Jefferson’s door that morning, they talked, and that she walked off shortly before the police arrived. When the State asked Henderson if he thought Jefferson would know who he was if they had a sexual encounter, Henderson replied: “Oh, she remembers, believe me, she remembers. Ain’t nobody [sic] going to forget nothing like that.”

¶ 9. After the above testimony, the following exchange occurred among the State, the trial court, Henderson, and Henderson’s attorney, David Walker:

State: Now if you had this perfectly good reason why you were over there, you know you’ve been charged, you know you’re going to trial, why didn’t you just come tell the police and clear all this up on the front end?
Henderson: I didn’t know—
Walker: Wait a minute. I object, Judge. The Defendant doesn’t have to explain why he didn’t give the police a statement. I object and move for a mistrial.
State: Your Honor, the fact is, [Henderson] does have the right to remain silent and he gave up that right here today. My question is: If he’s got a perfectly good reason—
Court: I’ll overrule the objection in the context that this has come down. I think that’s a legitimate question.
State: Why didn’t you tell the police?
Henderson: The police what? I wasn’t under arrest then.
State: Huh?
Henderson: I wasn’t under no [sic] arrest then. [I]f a man ain’t [sic] under arrest, he got [sic] the right to go wherever he pleases if he ain’t [sic] under arrest yet.
State: Well, when you were put in the car.
Henderson: I wasn’t charged with nothing [sic]. I wasn’t charged with a thing.
State: This happened January [1,] 2007; is that correct?
Henderson: Yes, sir.
State: And you had this really good reason why you were there that would have explained all of this, did you not?
Henderson: A reason? I just told you the reason.
State: That’s what I said.
Henderson: So you saying you can’t go in the apartment or something; I can’t go over to somebody’s house and knock on the door?
State: You can’t force your way into someone’s home.
Henderson: I didn’t, never have — never have.
State: All right. When the police [officer] opened the door, you were inside the house, correct?
Henderson: The door was already open, wide open. I’m standing right there. State: When the police [officer] came in, did he ask you to come talk to him? Henderson: He never came in. He was right at the door and I walked out.

Again, from the record before us, there is no evidence that Henderson ever received Miranda warnings.

STANDARD OF REVIEW

¶ 10. The standard of review regarding the admission or exclusion of evidence is abuse of discretion. Brown v. State, 965 So.2d 1023, 1026(¶ 10) (Miss.2007). “This Court must first determine if the proper legal standards were applied.” Id. (citation omitted). “Where error involves the admission or exclusion of evidence, this Court ‘will not reverse unless the error adversely affects a substantial right of a party.’ ” Id. (citation omitted). Similarly, we review the denial of a motion for mistrial under an abuse of discretion standard. Caston v. State, 823 So.2d 473, 492(¶ 54) (Miss.2002) (citations omitted).

DISCUSSION

¶ 11. Henderson argues that the State improperly elicited testimony from him regarding his post-arrest silence and that the trial court abused its discretion in denying his motion for a mistrial. In turn, the State contends that Henderson was properly questioned on cross-examination about the fact that he did not tell law enforcement what he told the jury, as it concerned Henderson’s reason for being at Jefferson’s apartment. Additionally, the State argues that because Henderson chose to testify, he waived his privilege against self-incrimination.

¶ 12. Although we affirm Henderson’s conviction in this case, we do not do so on the basis that Henderson waived his privilege against self-incrimination when he took the stand. We affirm because the record contains no evidence that Henderson received Miranda warnings so as to trigger his right to remain silent and, therefore, to induce his silence. See McGrone v. State, 807 So.2d 1232, 1234-35 (¶¶ 6-11) (Miss.2002).

¶ 13. The issue regarding whether a defendant’s post-arrest silence can be used against him at trial was addressed by the Mississippi Supreme Court in McGrone. McGrone, 807 So.2d at 1234-35 (¶¶ 6-11). Similar to the facts in McGrone, the trial record in this case contains no evidence that Henderson received Miranda warnings. Id. at 1235(¶ 10); see also Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (“In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to post[-]arrest silence when a defendant chooses to take the stand.”)

¶ 14. In McGrone, the defendant took the stand in his own defense. McGrone, 807 So.2d at 1233(¶ 2). During cross-examination, the State repeatedly questioned McGrone, over defense counsel’s objection, about whether he had ever told law enforcement his version of the events leading up to his arrest. Id. at (¶ 3). The trial court overruled the objection, and McGrone stated that he had not spoken to anyone in law enforcement about his case. Id.

¶ 15. Before reaching the supreme court through writ of certiorari, this Court in handling the case on appeal, found that if it was improper for the State to cross-examine McGrone regarding his silence after being arrested and read his Miranda warnings, then it was equally improper to cross-examine McGrone, “where there was no evidence in the record as to whether he had been given Miranda warnings or not.” Id. at 1233-34(¶4). In so holding, the Court found that “a defendant would have the protection of the Fifth Amendment in either case, and if cross-examination was prohibited under the first scenario, it was also prohibited under the second.” Id. at 1234(¶ 4). “Four judges dissented and argued that McGrone had waived the privilege by taking the stand and testifying about the merits of the case.” Id.

¶ 16. On writ of certiorari to the supreme court, the supreme court found that the State had not violated McGrone’s due process rights by cross-examining him regarding his post-arrest silence because no evidence in the record existed that law enforcement had Mirandized McGrone so as to trigger his right to remain silent. Id. at 1235 (¶¶ 10-11); cf. Doyle v. Ohio, 426 U.S. 610, 611, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (finding that prosecutor’s attempt to impeach a defendant’s exculpatory story told for the first time at trial violated the defendant’s due process rights because law enforcement had Mirandized the defendant and the prosecutor’s attempted use of the defendant’s post-Miranda silence in such a manner constituted reversible error).

¶ 17. The question before the Court today regarding pre-Miranda silence was previously addressed in Fletcher. In Fletcher, the defendant Weir took the stand in his own defense. Fletcher, 455 U.S. at 603, 102 S.Ct. 1309. In his testimony, Weir admitted stabbing the victim, but claimed that he acted in self-defense. Id. This in-court statement was the first time that Weir had offered an exculpatory version of the stabbing. Id. The prosecutor cross-examined Weir as to why he had, when arrested, failed to advance his exculpatory explanation to law enforcement. Id. at 603-04, 102 S.Ct. 1309. Weir was ultimately found guilty of manslaughter by a jury. Id. at 604, 102 S.Ct. 1309. Weir appealed and lost. Id.

¶ 18. In habeas corpus proceedings, the Sixth Circuit Court of Appeals found that the State had violated Weir’s Fifth Amendment rights as outlined in Doyle when the prosecutor cross-examined Weir and made comments to the jury concerning Weir’s silence after he was arrested but before he was given Miranda warnings. Weir v. Fletcher, 658 F.2d 1126, 1133 (6th Cir.1981).

¶ 19. The Sixth Circuit Court of Appeals also found that “impeachment of a defendant with post-arrest silence is forbidden by the Constitution, regardless of whether Miranda warnings are given.” Id. at 1130. The court concluded that “it is inherently unfair to allow cross-examination concerning post-arrest silence.” Id. However, the United States Supreme Court reversed the Sixth Circuit Court of Appeals and found that it had given “an overly broad reading” to the Doyle decision. Fletcher, 455 U.S. at 604, 102 S.Ct. 1309.

¶ 20. The Supreme Court explained their reversal of the Sixth Circuit’s judgment in the following manner:

In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to post[-]arrest silence when a defendant chooses to take the stand. A State is entitled, in such situations, to leave to the judge and jury under its own rules of evidence the resolution of the extent to which post[-]arrest silence may be deemed to impeach a criminal defendant’s own testimony.

Id. at 607,102 S.Ct. 1309.

¶21. In McGrone, the Mississippi Supreme Court adopted the holdings of Doyle and Fletcher in determining that the triggering point of the right to remain silent relies on the actual delivery of the Miranda warnings. See McGrone, 807 So.2d at 1234-35 (¶¶ 6-11). In accordance with McGrone, we affirm Henderson’s conviction and sentence. See id.

¶ 22. THE JUDGMENT OF THE PA-NOLA COUNTY CIRCUIT COURT OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FIVE YEARS OF POST-RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PANO-LA COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE AND ROBERTS, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT. MAXWELL, J., NOT PARTICIPATING.

      . Miranda v. Arizona, 384 U.S. 436, 467-68, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (stating that both inculpatory and exculpatory statements made in response to interrogation by a defendant in police custody will be admissible at trial only if the prosecution can show that the defendant was informed of the right to consult with an attorney before and during questioning and of the right against self-incrimination prior to questioning by the police, and that the defendant not only understood these rights, but he or she voluntarily waived them).

      . See also Meaghan Elizabeth Ryan, Do You Have the Right to Remain Silent?: The Substantive Use of Pre-Miranda Silence, 58 Ala. L.Rev. 903, 914 (2007) (stating that the decisions of Fletcher and Doyle "hold that, because the warnings themselves may actually induce the defendant's silence, use of that silence to suggest guilt or impeach violates due process”).


author: IRVING, J., for the Court.

text:
    Gregory LEE, Sr., Appellant v. Sonia Alicia LEE, Appellee.
    No. 2007-CA-02088-COA.
    Court of Appeals of Mississippi.
    May 19, 2009.
    Monique Brooks Montgomery, Columbus, attorney for appellant.
    Stephanie L. Mallette, attorney for ap-pellee.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   IRVING, J., for the Court.

¶ 1. Gregory Lee Sr. filed a petition in Lowndes County Chancery Court, seeking a modification of the judgment of divorce between him and Sonia Alicia Lee. In the petition, Gregory sought to reverse the adjudication that he is the biological father of one of the parties’ minor children. The chancellor denied the petition. Gregory now appeals and asserts that the chancellor erred in not granting the requested relief.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. Gregory and Sonia were married on April 2, 1994. Two children were born during the marriage: Gregory Jr., born August 2, 1995, and Morgan, born July 23, 1998. On March 29, 2004, Gregory had a home DNA test performed to determine whether he was Morgan’s biological father. The test revealed that there was a zero percent chance that Gregory was her father. Gregory shared the results of the test with Sonia.

¶ 4. On April 14, 2005, the parties filed a joint bill for divorce in which they swore that both Gregory Jr. and Morgan were born to the marriage. The parties attached the required child custody and property settlement agreement, which provided, inter alia, that Sonia would have primary custody of the minor children and that Gregory would pay child support in the amount of $714.40 per month. On June 22, 2005, the chancellor granted the parties a divorce on the ground of irreconcilable differences and incorporated the parties’ child custody and property settlement agreement into the final judgment of divorce.

¶ 5. On June 26, 2007, Gregory filed a petition to modify the judgment of divorce. In the petition, Gregory alleged that “subsequent” to the judgment of divorce, a paternity test was performed and revealed that he was not Morgan’s biological father. Accordingly, he asked the court to reverse the determination that he is Morgan’s biological father and release him of all parental responsibilities, including child support, as to Morgan.

¶ 6. On August 21, 2007, Gregory filed a motion to allow a DNA test to establish the paternity of Morgan. The chancellor ordered that the DNA test be performed on September 5, 2007, and set the matter to be heard on September 25, 2007. When the matter came on for hearing on September 25, rather than give live testimony, the parties stipulated to the following facts which we quote verbatim:

1. Greg Lee, Sr., and Sonia Alicia Lee were divorced by order of this Court on June 22, 2005.
2. Greg Lee, Sr., and Sonia Alicia Lee signed their Child Custody and [Property] Settlement Agreement on April 14, 2005.
3. The first DNA test result was issued on April 7, 2004, which is one year and seven days before the Parties signed their Child Custody and [Property] Settlement Agreement.
4. Greg Lee, Sr., gave a copy of the April 7, 2004, DNA test to Sonia Alicia Lee before April 14, 2005.
5. Greg Lee, Sr., has paid child support and exercised visitation with [Morgan] since April 14, 2005.
6. Greg Lee, Sr., is not the biological father of [Morgan].

¶ 7. On October 25, 2007, the chancellor entered an opinion and judgment dismissing Gregory’s petition. In the order, the chancellor stated:

The Court believes that this case is controlled by Williams v. Williams, 843 So.2d 720 (Miss.2003). Our [s]upreme [c]ourt citing NPA v. WBA, [8 Va.App. 246,] 380 S.E.2d 178 (Va.Ct.App.1989) held even though setting aside judgment of paternity:
We do not hold that a man who is not a child’s biological father can be absolved of his support obligations in all cases. Those who have adopted a child or voluntarily and knowingly assumed the obligation of support will be required to continue doing so. (emphasis added) (citation omitted).
Greg was one hundred percent certain that he was not the biological father of Morgan before signing the divorce documents. He even gave Sonia a copy of the DNA report. After knowing that he was not Morgan’s father, he swore in the Complaint and in the Child Custody and [Property Settlement] Agreement that he was the father of Morgan. He agreed in the [Property Settlement] Agreement to pay child support and visit with Morgan.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 9. “When reviewing a chancellor’s decision, [an appellate court] will accept the chancellor’s findings of fact as long as the evidence in the record reasonably supports those findings.” Norton v. Norton, 742 So.2d 126, 128-29(¶8) (Miss.1999) (citing In re Estate of Taylor v. Thompson, 609 So.2d 390, 393 (Miss.1992)). Findings of the chancellor will not be disturbed or set aside on appeal unless the decision of the chancellor is manifestly wrong, is not supported by substantial credible evidence, or an erroneous legal standard has been applied. Id. (citing Hill v. SE. Floor Covering Co., 596 So.2d 874, 877 (Miss.1992); Jones v. Jones, 532 So.2d 574, 581 (Miss.1988)).

¶ 10. Gregory contends that the result of the 2004 home DNA test is not legally binding and argues that the chancellor erred when he failed to reverse the determination that Gregory is legally Morgan’s biological father. Gregory claims that he did not become certain that he is not Morgan’s biological father until he received the results of the court-ordered DNA test on September 11, 2007. He alleges that, even after the 2004 home DNA test indicated that he was not Morgan’s father, he did not believe the test results because Sonia assured him that she had not had an extramarital affair. Gregory claims that he also relied on Sonia’s sworn statements in their joint bill for divorce and in their child custody and property settlement agreement that he was the biological father of both children. He argues that the chancellor should have considered only the 2007 court-ordered DNA results and ultimately reversed the determination that he is Morgan’s biological father.

¶ 11. Gregory also argues that the Williams case, which was relied upon by the chancellor as authority for dismissing his petition, favors his position. He explains that the facts in Williams are very similar to his and that the Williams court’s pronouncement — that “[the Mississippi Supreme Court] refuse[s] to sanction the manifest injustice of forcing a man to support a child which science has proven not to be his” — requires a reversal of the chancellor’s order. Williams, 843 So.2d at 723(¶ 18). We find Gregory’s arguments unpersuasive and his reliance on Williams misplaced.

¶ 12. Our supreme court has stated: “To justify changing or modifying a divorce decree there must have been a material or substantial change in the circumstances of the parties. The material or substantial change is relative to only the after-arising circumstances of the parties following the original decree.” Shipley v. Ferguson, 638 So.2d 1295, 1298 (Miss.1994) (citing Morris v. Morris, 541 So.2d 1040, 1042-43 (Miss.1989)).

¶ 13. Even though the chancellor did not directly address the issue of whether a material change in circumstances had occurred, our review of the record reveals that no such change occurred following the parties’ 2005 judgment of divorce. Gregory knew in 2004 that he was not Morgan’s biological father, despite his argument here that he first became certain of that fact in September 2007. That he was aware as early as April 7, 2004, that he was not Morgan’s father is made evident by his June 2007 petition for modification.

¶ 14. We now address briefly Gregory’s argument that Williams requires that he be relieved of the parentage of Morgan. In Williams, Willie and Angela Williams married in 1988. Williams, 843 So.2d at 721(¶ 2). The parties separated in October 1993, and Angela gave birth to Marcus Williams in August 1994. Id. Willie and Angela divorced on November 25, 1996. Id. In the divorce decree, both parties swore that Marcus was their son. Id. Willie visited Marcus no more than four times in seven years. Id. at (¶ 3). During one of the visits, Willie noticed that his and Marcus’s physical attributes were dissimilar. Id. Accordingly, Willie had a paternity test conducted in September 1999. Id. The test concluded that Willie was not Marcus’s biological father. Id. Willie filed a motion to modify the final judgment of divorce “to reflect Willie’s nonpaternity of Marcus.” Id. at (¶ 4). The chancery court denied the motion, and Willie appealed. Id. On appeal, our supreme court found that Willie had rebutted the presumption of paternity and held that “in the absence of consanguinity, legal adoption, or a knowing and voluntary assumption of the obligation to provide support, the law will not compel one who has stood in the place of a parent to support the child after the relationship has ceased.” Id. at 723(¶ 16) (emphasis added).

¶ 15. One key fact distinguishes our case from Williams — Willie, unlike Gregory, was completely unaware of the fact that he was not Marcus’s biological father at the time that the divorce was granted. Willie did not become suspicious that he was not Marcus’s father until almost three years after the divorce decree was entered. On the other hand, Gregory knew a year before the judgment of divorce was entered that Morgan was not his child. Despite this knowledge, he voluntarily agreed to support Morgan and to exercise parental visitation with her. This contention of error is without merit.

¶ 16. We agree with the chancellor’s finding that Williams does not require that Gregory be granted the requested relief, and as there has been no material change in circumstances since the judgment of divorce was entered, the chancellor did not err in dismissing Gregory’s petition for modification.

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

KING, C.J., LEE AND MYERS, P.JJ, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . As will be explained later, Gregory misstated the facts with respect to when the initial paternity test was performed, because it was done a little over a year prior to the entry of the judgment of divorce.

      . On August 15, 2007, Sonia filed a motion for DNA testing: however, she subsequently withdrew her motion.

      . A review of the child custody and property settlement agreement reveals that the parties did not swear as to the parentage of the children. They simply agreed to provisions for custody, visitation, and child support.

      . Gregory’s petition states ”[t]hat subsequent to the Decree, a paternity test was performed upon the request of the Petitioner in which it [was] revealed that there was a zero percent chance that the Petitioner herein [is] the father of the child, Morgan....” (Emphasis added). However, it is impossible for this statement to reference the test performed subsequent to the judgment of divorce, because that test was not performed until two months after the petition for modification was filed. Therefore, the only test Gregory could have been referring to in his petition was the home DNA test performed in 2004.


text:
    Scotty B. LYLES, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-KA-00994-COA.
    Court of Appeals of Mississippi.
    May 19, 2009.
    Brenda Jackson Patterson, attorney for appellant.
    Office of Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   IRVING, J., for the Court.

¶ 1. Scotty B. Lyles was convicted in the Oktibbeha County Circuit Court of armed robbery and sentenced as a habitual offender to life imprisonment, without eligibility for parole, in the custody of the Mississippi Department of Corrections and fined $10,000. Lyles moved for a new trial, but the circuit court denied the motion. Aggrieved, Lyles appeals and asserts that the circuit court erred in denying his motion for a new trial because the verdict was against the overwhelming weight of the evidence.

¶ 2. Finding no reversible error, we affirm.

FACTS

11 3. The Tobacco Shed is a convenience store located in Starkville, Mississippi. On the morning of May 22, 2006, business ran as usual at the Tobacco Shed, as Janice Kilgore, the store manager, waited on several customers. At approximately 10:30 a.m., a man wearing all black clothing entered the store and robbed Kilgore at knife point. Kilgore and the robber were the only two people in the store during the robbery; however, the robbery was captured by the store’s surveillance camera. After several witnesses positively identified Lyles as the robber, he was indicted.

¶ 4. At trial, during the State’s case-in-chief, Kilgore testified that she had identified Lyles in a photographic lineup at the Starkville Police Department. She also identified Lyles in the courtroom. Kilgore stated that she had “no doubt at all” that Lyles was the man who had robbed her.

¶ 5. The State’s next witness, Donna Arnold, testified that she had just purchased a few items from the Tobacco Shed and had walked out of the store when she saw Kilgore run outside and scream, “I’ve been robbed. I’ve been robbed. There he go [sic]. There he go [sic].” Arnold further testified that she did not see the robber’s face but that she remembered the robber as being tall, slender, and dressed in all black. According to Arnold, she had previously stated to the police that the robber looked like he was twenty to thirty years old.

¶ 6. The State’s next witness, Deputy Terry Scott of the Clay County Sheriffs Department, testified that on May 25, 2006, the Starkville Police Department informed him that Lyles was in the Mantee area — a town in Deputy Scott’s jurisdiction. According to Deputy Scott, he and three detectives from the Starkville Police Department found Lyles at a car wash in Mantee. Deputy Scott stated that he and the other officers found a black cap in the back seat of Lyles’s car and that they transported Lyles back to Starkville.

¶ 7. The State’s next witness, Priscilla Logan, testified that she knew Lyles because he was a frequent customer at Green Oakes Cigarettes, a convenience store where Logan was employed. She testified that Lyles would often come to Green Oakes Cigarettes to cash his payroll checks. Logan further testified that she identified the robber as Lyles after watching the surveillance video recording. She also identified him in the courtroom when she testified at trial.

¶ 8. During Lyles’s case-in-chief, he called his wife, Novella, as his first witness. On direct examination, Novella testified that she and Lyles went to a car wash on May 22, 2006, before noon, that Lyles was wearing peach colored shorts with a tan shirt and red hat on that day, and that the man who appeared on the video recording was not Lyles. However, on cross-examination, Novella testified that she told the Starkville police a few days after the robbery that she was eighty percent sure that the man who was shown on the video recording was Lyles. She also testified that it was possible that she was intoxicated during her police interview.

¶ 9. Lyles’s next witness, Mary Miles, testified that she was standing outside of Green Oakes Cigarettes when she saw a lady run out of the Tobacco Shed “hollering and screaming and calling for help.” She further testified that the robber ran right past her and that the robber was tall, dark, and wearing all black. After being asked to compare the robber’s skin complexion with Lyles, Miles stated that the robber was “maybe a little darker than [Lyles].” On cross-examination, Miles testified that because the robber had on all black clothing, she was not certain if the robber was lighter or darker than Lyles.

¶ 10. Following Miles’s testimony, the court read into the record the following statement given by Charles Jordan, a witness to the robbery, on May 22, 2006, to Detective Armstead of the Starkville Police Department:

Charles Jordan stated he came to the store when he saw the clerk running outside. He stated that she told him to follow [the robber] to see where he went. He stated he went to Ray Ford Park’s house and waited to see which way [the robber] went. He said he didn’t see [the robber] any more and came to tell Dan Morgan what had happened. Jordan stated that [the robber] was about 6 foot 2 and had on all black with a hooded shirt.

¶ 11. Lyles re-called Novella as a witness. She testified that Kilgore lived two houses down from them. Novella further testified that when she went on her daily walks with Lyles or one of her children, she would speak to Kilgore if she saw her. On cross-examination, Novella stated that she believed Kilgore had seen Lyles’s face before the robbery and that she believed Kilgore would know his face even if she did not know his name.

¶ 12. The State called Lyles’s stepdaughter, Alexandria Burchfield, as a rebuttal witness. She testified that after she watched the video recording of the robbery, she was 100 percent sure that the robber was Lyles. On cross-examination, Burchfield admitted that she had told the police that she did not like Lyles. Burch-field gave no explanation as to why she did not like him; however, she told the circuit court that even though she and Lyles did not have the best relationship, she did not want to see him go to jail.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 13. In Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005), the Mississippi Supreme Court announced the standard of review of a circuit court’s denial of a motion for a new trial as follows:

When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Herring v. State, 691 So.2d 948, 957 (Miss.1997). We have stated that on a motion for new trial, “the court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the 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 (Miss.2000). However, the evidence should be weighed in the light most favorable to the verdict. Herring, 691 So.2d at 957. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, “unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict.” McQueen v. State, 423 So.2d 800, 803 (Miss.1982). Rather, as the “thirteenth juror,” the court simply disagrees with the jury’s resolution of the conflicting testimony. Id. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Id. Instead, the proper remedy is to grant a new trial.

¶ 14. Lyles argues that the witnesses’ testimonies were conflicting and that a new trial should be granted. Specifically, Lyles points out several portions of the witnesses’ testimonies that he argues are inconsistent and discrepant. First, Lyles appears to argue that Kilgore’s identification of him should be discounted because her identification stemmed from her knowledge of him from the neighborhood, not from her view of him during the robbery. Second, Lyles points out that Arnold described the robber as being twenty to thirty years old, but that he was forty years old at the time of the trial. Third, Lyles points out that, notwithstanding Logan’s testimony that she saw his face on the surveillance video recording, the recording is not clear enough to identify him. Fourth, Lyles points out that even though Novella told the police that she was eighty percent sure it was Lyles on the videotape, she also stated that she was probably intoxicated during the interview. Lastly, Lyles argues that Burchfield was biased, as she admitted that she did not like him.

¶ 15. “It is a well-settled principle of law that issues of weight and credibility of witness testimony are within the sole province of the jury as fact-finder.” King v. State, 798 So.2d 1258, 1262(¶ 14) (Miss.2001) (citing Humphrey v. State, 759 So.2d 368, 387(¶ 60) (Miss.2000) (superceded by statute)). “The jury has a much better vantage point to view and assess the tone, mannerisms, and disposition of witnesses.” Id.

¶ 16. As stated above, in reviewing a motion for a new trial based on the weight of the evidence, we weigh the evidence in the light most favorable to the verdict. Here, three witnesses — Burchfield, Kil-gore, and Logan — were certain that Lyles was the person who had robbed the Tobacco Shed. Further, Kilgore identified the cap found in Lyles’s car as the cap worn by the robber during the robbery. Also, the jury convicted Lyles only after hearing the State’s and Lyles’s versions of events. The inconsistencies in the witnesses’ testimonies pointed out by Lyles were resolved by the jury’s verdict. In the case at bar, allowing the jury’s verdict to stand will not sanction an unconscionable injustice. Therefore, this contention of error is without merit.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY OF CONVICTION OF ARMED ROBBERY AND SENTENCE AS A HABITUAL OFFENDER OF LIFE IMPRISONMENT, WITHOUT ELIGIBILITY FOR PAROLE, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY A FINE OF $10,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIB-BEHA COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . Green Oakes Cigarettes and the Tobacco Shed are owned and operated by Moreland, Inc. Sometimes, Logan worked at the Tobacco Shed as a cashier.

      . Detective Armstead's first name is not in the record.


text:
    Myron POLLARD, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-CA-00678-COA.
    Court of Appeals of Mississippi.
    June 23, 2009.

      Cheryl Ann Webster, Clarksdale, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, C.J., BARNES and ISHEE, JJ.
   BARNES, J., for the Court.

¶ 1. Myron Pollard appeals an order by the Coahoma County Circuit Court denying, for lack of jurisdiction, his “Motion to Set Aside Involuntary Guilty Plea and Subsequent Sentencing Judgment and Motion Demanding Trial.” Finding that the circuit court did, indeed, lack jurisdiction, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On May 29, 2007, Pollard was charged in two separate indictments— Cause No. 2007-042 and Cause No. 2007-043. Cause No. 2007-042, which is at issue in this appeal, charged Pollard with possession of codeine (a Schedule V controlled substance) and possession of marijuana. Cause No. 2007-043 charged Pollard with two counts — possession of cocaine and possession of marijuana. Following a plea-qualification hearing on July 13, 2007, Pollard pleaded guilty to all four counts. His plea was “open” and not based upon any recommendation by the district attorney. The circuit court entered an order accepting Pollard’s guilty pleas on July 16, 2007, but deferred sentencing pending a presentence investigation report as Pollard had applied for participation in the drug court. However, Pollard’s application to the drug court was rejected. At the sentencing hearing on August 20, 2007, the court orally sentenced Pollard to fifteen years in the custody of the Mississippi Department of Corrections and imposed a $5,000 fine for possession of codeine and a $250 fine for possession of mai'ijuana in Cause No. 2007-042. Pollard was also sentenced to fifteen years in the custody of the Mississippi Department of Corrections, along with a $5,000 fine for possession of cocaine and a $250 fine for possession of marijuana in Cause No. 2007-043, with the sentence to run concurrently with the sentence imposed in Cause No. 2007-042. The sentencing orders were entered on August 30, 2007.

¶ 3. On September 6, 2007, Pollard filed a motion to set aside his guilty plea and sentence for Cause No. 2007-042 (possession of codeine and possession of marijuana) claiming that his guilty plea was given involuntarily and demanding a jury trial. At a hearing on March 12, 2008, the circuit judge denied Pollard’s motion based on a lack of jurisdiction. The court stated:

[T]he Court is of the opinion that it is without jurisdiction to hear the present motion. The term of court in which the Defendant entered his plea has since expired, and the Court did not retain jurisdiction over this matter past sentencing. The only avenue available to the Defendant at this time is through the uniform post-conviction collateral relief act.

However, Pollard rejected the circuit judge’s invitation at the hearing to treat the motion as one filed under the Mississippi Uniform Post-Conviction Collateral Relief Act, indicating that he would prefer to appeal the court’s denial of his motion to set aside his guilty plea. We now consider Pollard’s appeal.

WHETHER THE CIRCUIT COURT HAD JURISDICTION TO CONSIDER POLLARD’S MOTION TO SET ASIDE HIS GUILTY PLEA.

¶ 4. Pollard asserts that the circuit court should have considered his motion based on Rule 10.05 of the Uniform Rules of Circuit and County Court, which provides that a motion for a new trial should be filed within ten days of the entry of judgment. We find Pollard’s argument unpersuasive. A motion to withdraw or set aside a guilty plea is not equivalent to a motion for a new trial. Since there is no trial held upon an entry of a guilty plea, Rule 10.05 does not apply in cases where the defendant pleaded guilty. Leverette v. State, 812 So.2d 241, 244(¶ 9) (Miss.Ct.App.2002).

¶ 5. Pollard also relies on Presley v. State, 792 So.2d 950, 953(¶ 10) (Miss.2001), for the proposition that a motion for withdrawal of a guilty plea may be made after sentencing. However, this is only done in order to “correct [a] manifest injustice[,]” and it is at the discretion of the trial court. Id. Additionally, although a trial court may, pursuant to Mississippi Code Annotated section 11-1-16 (Rev.2002), “consider a pending motion after a term [of court] has ended[,]” this statute is not applicable here. See Presley, 792 So.2d at 953(¶ 13). The term of court ended on August 17, 2007. Thus, Pollard’s motion, which was filed on September 6, 2007, was not filed until after the term of court had expired and after the sentencing order was entered on August 30, 2007. Accordingly, the circuit court had no authority to consider Pollard’s motion.

¶ 6. Without addressing the merits of Pollard’s case and leaving him free to pursue any remedy available under the Mississippi Uniform Post-Conviction Collateral Relief Act, Mississippi Code Annotated sections 99-39-1 to -29 (Rev.2007), we affirm the circuit court’s denial of Pollard’s motion to set aside his guilty plea.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . Cause No. 2007-043 is also before this Court on a separate appeal in Case No. 2008-CA-00679-COA.

      . See generally Miss.Code Ann. § 9-23-1 (Supp.2008) (Alyce Griffin Clarke Drug Court Act).

      . Pollard claims drat he was informed of the rejection of his application to the drug court only minutes before his sentencing.


author: KING, C.J., for the Court.

text:
    Hillie FULGHAM, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-KA-02257-COA.
    Court of Appeals of Mississippi.
    June 23, 2009.

      George T. Holmes, Jackson, attorney for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before KING, C.J., BARNES and ISHEE, JJ.
   KING, C.J., for the Court.

¶ 1. Hillie Fulgham was convicted in the Circuit Court of Oktibbeha County of burglary of a business. He was sentenced as a habitual offender to serve seven years in the custody of the Mississippi Department of Corrections (MDOC), without eligibility for parole, and ordered to pay a fine in the amount of $10,000. Aggrieved, Fulgham appeals his conviction and sentence, raising three issues on appeal:

I. Whether the trial court erred by denying his motion for a directed verdict;
II. Whether the trial court erred by refusing to give his defense theory jury instruction; and
III. Whether the verdict was contrary to the legal sufficiency and weight of the evidence.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Garner’s Meat Processing Company (Garner’s), located in Sturgis, Mississippi, is a professional meat processor of wild game. As a convenience to his customers, Dennis Garner (Dennis), the owner, would leave the back door of the facility open during deer hunting season so that customers could leave their field-dressed deer in the cooler.

¶ 3. On November 10, 2004, Dennis discovered that $858 worth of meat had been stolen from his store. A few months later, Chris Jones called Dennis’s father and confessed that he, along with Jason Mann and Fulgham, stole the meat from Garner’s. Dennis then contacted the authorities.

¶ 4. On January 20, 2005, Fulgham was indicted for the burglary of Garner’s. The indictment was later amended to charge Fulgham as a habitual offender.

¶ 5. The trial commenced on October 17, 2007. Jones testified that he, Mann, and Fulgham were drinking and “spotlighting” deer on the night of the incident. During their excursion, they decided to take some meat from Garner’s. Jones testified that he drove a pickup truck to Garner’s and dropped off Mann and Fulgham at the back of the building. Jones circled down the street and returned to Garner’s. When he returned, Mann and Fulgham were waiting in front of the building with the meat. They loaded the meat into the bed of the truck and went back inside Garner’s to retrieve more meat. Jones testified that they did this a few times before leaving Garner’s. After they left Garner’s, they drove to Fulgham’s house; they divided the meat, leaving some at Fulgham’s house; and then they went their separate ways.

¶6. Mann also testified during Fulg-ham’s trial. He testified that he and Fulg-ham entered Garner’s through the back door, took some meat, and loaded it into the back of a pickup truck. Fulgham testified and denied taking part in the burglary of Garner’s. Fulgham claimed that Jones and Mann fabricated the entire story.

¶ 7. Fulgham made a motion for a directed verdict, which the trial court denied. On October 18, 2007, an Oktibbeha County jury found Fulgham guilty of the burglary of Garner’s. The trial court sentenced Fulgham as a habitual offender to serve seven years in the custody of the MDOC, without eligibility for parole, and ordered him to pay a $10,000 fine.

¶ 8. Fulgham filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial. The trial court denied the motion. Aggrieved, Fulgham timely filed this appeal.

ANALYSIS

I. Directed Verdict

¶ 9. Fulgham argues that the trial court erred by denying his motion for a directed verdict because the State failed to prove an element of the crime — that he broke into Garner’s. On appeal, this Court reviews the trial court’s denial of a motion for a directed verdict as follows:

A motion for a directed verdict challenges the sufficiency of the evidence. In reviewing a denial of a motion for a directed verdict, this Court must view all evidence in the light most favorable to the verdict. This Court will not reverse unless, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

Luckett v. State, 989 So.2d 995, 997(¶ 7) (Miss.Ct.App.2008) (internal citations and quotations omitted).

¶ 10. Fulgham was indicted for burglary of a business pursuant to Mississippi Code Annotated section 97-17-33(1) (Rev.2006). To secure a conviction, the State had to prove that Fulgham broke into and entered Garner’s with the intent to steal or commit a felony. See Genry v. State, 767 So.2d 302, 309(¶21) (Miss.Ct.App.2000). A breaking includes “any act or force, however, slight, employed to effect an entrance through any usual or unusual place of ingress, whether open, partly open, or closed.’ ” Id. (citation omitted). Because Dennis gave his customers permission to enter the store after business hours, the State’s theory at trial was that there was a constructive breaking. A constructive breaking is an invitation to enter the premises obtained “by threat, deceit, fraud, or trickery.” Clayton v. State, 822 So.2d 1141, 1143(¶ 6) (Miss.Ct.App.2002).

¶ 11. First, Fulgham contends that there was no testimony that he entered Garner’s. Jones testified that he dropped Mann and Fulgham off at Garner’s, and they were waiting in front of the store with meat when he returned. Athough Mann did not state that he entered Garner’s, he testified that he and Fulgham took meat out of Garner’s and loaded it into the back of a pickup truck. We find that this testimony is sufficient to show that Fulgham entered Garner’s.

¶ 12. Next, Fulgham argues that there was no evidence that he obtained entry to Garner’s by a threat, deceit, fraud, or trickery. The supreme court has held that:

[A] defendant was properly convicted of burglary of a dwelling where the defendant did not actually break into the dwelling, but rather had been invited into the house by the homeowner, but with the full intention of committing unlawful acts in the house.

Haynes v. State, 744 So.2d 751, 753(¶ 6) (Miss.1999) (citing Templeton v. State, 725 So.2d 764, 767(¶ 7) (Miss.1998)). The evidence presented in this case shows that Dennis gave his customers permission to enter his store after business hours so that they could leave field-dressed deer at his store for processing. Based on the evidence, Jones, Mann, and Fulgham entered Garner’s with the unlawful intent to steal meat, not to leave deer for processing. Fulgham entered the store with a purpose outside of Dennis’s consent, and it is absurd to assume that Dennis would consent to someone stealing from his store.

¶ 13. Based on the foregoing, we find that a reasonable jury could have found that Fulgham engaged in a constructive breaking and entering of Garner’s. Thus, the trial court did not err by denying Fulgham’s motion for a directed verdict. This issue is without merit.

II. Defense Theory Jury Instruction

¶ 14. Fulgham argues that the trial court erred by refusing jury instruction D-ll, and this denied him the right to have a jury instruction embodying his theory of defense. “[A] defendant is entitled to have jury instructions that present his theory of the case[.]” Ruffin v. State, 992 So.2d 1165, 1176(¶ 33) (Miss.2008). However, the trial court may refuse to give a jury instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without an evidentiary basis for giving the instruction. Id. This Court reviews the jury instructions “given as a whole and within context.” Id. If the jury instructions given fairly announce the law and create no injustice, this Court will not find any reversible error. Dampier v. State, 973 So.2d 221, 232(¶ 32) (Miss.2008) (citation omitted).

¶ 15. Fulgham offered jury instruction D-ll, which stated that:

The Court further instructs the jury that if you find from the evidence that the Defendant, Hillie Fulgham, did not break and enter a certain building called and being Garner’s Meat [Processing] Company, ..., but that Hillie Fulgham, as a member of the general public, had the express or implied consent of Dennis Garner to enter the said property, then you shall find him not guilty of burglary.

The trial court refused jury instruction D-11, finding that it conflicted with the given jury instruction S-5. Jury instruction S-5 stated, in pertinent part, that:

... if you find from the evidence in this case, beyond a reasonable doubt, that the Defendant, Hillie Fulgham, used some effort to enter Garner’s Meat [Processing Company], and at the time of that entry he had the unlawful intent to steal, then his act was a ‘breaking’ in the eyes of the law.

¶ 16. Fulgham did not raise an objection to jury instruction S-5. In fact, Fulg-ham’s attorney stated, “Your Honor, I think a lot of effort was made into coming up with this instruction. We don’t have a problem with it. I think it states it as best as we can.”

¶ 17. As previously discussed, a conviction for burglary of a business can be obtained where there is a constructive breaking in which the defendant had permission to enter a business, but the defendant possessed the intent to commit an unlawful act inside. Haynes, 744 So.2d at 753(¶ 6). Thus, we find that jury instruction D-ll is an incorrect statement of the law.

¶ 18. In addition, Fulgham’s complete defense at trial was that he did not participate in the burglary of Garner’s. Thus, we find that there was no evidentiary basis for jury instruction D-ll presented. Fulgham offered jury instruction D-13 that instructed the jury to find him not guilty if the jury found that he was not present at the burglary of Garner’s. This instruction embodied his theory of the case, and the trial court gave jury instruction D-13. Based on the foregoing, we find that the trial court did not err by refusing to give jury instruction D-ll. The jury instructions given fairly announced the law and created no injustice. This issue is without merit.

III. Legal Sufficiency and Weight of the Evidence

¶ 19. Fulgham argues that the trial court erred by denying his motion for JNOV or, in the alternative, for a new trial because the verdict was contrary to the legal sufficiency and weight of the evidence. Specifically, Fulgham maintains that there was no evidence of a constructive or actual breaking.

¶ 20. A motion for a JNOV challenges the legal sufficiency of the evidence. Hearn v. State, 3 So.3d 722, 740(¶53) (Miss.2008). This Court will not disturb the trial court’s denial of a motion for a JNOV unless, with respect to one or more elements of the crime charged, the evidence is such that fair-minded jurors could only find the defendant not guilty. Id. at (¶ 54). On the other hand, a motion for a new trial challenges the weight of the evidence. Id. at 741(¶ 56). This Court will not disturb the trial court’s denial of a motion for a new trial unless the verdict “is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. at (¶ 57) (quoting Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005)).

¶ 21. As previously discussed in the first assignment of error, the State presented evidence of a constructive breaking, proving all elements of the crime charged. Thus, the trial court did not err by denying Fulgham’s motion for a JNOV. Considering the evidence and the testimony given by Jones and Mann during Fulgham’s trial, we do not find that the verdict was against the overwhelming weight of the evidence or that the verdict resulted in an unconscionable injustice. Thus, the trial court did not err by denying Fulgham’s motion for a new trial. This issue is without merit.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY OF CONVICTION OF BURGLARY OF A BUSINESS AND SENTENCE AS A HABITUAL OFFENDER TO SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, AND TO PAY A $10,000 FINE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIB-BEHA COUNTY.

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. ROBERTS, J., CONCURS IN PART AND IN THE RESULT.


author: ISHEE, J., for the Court.

text:
    Larry SMITH a/k/a Larry Floyd Smith, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-CP-00538-COA.
    Court of Appeals of Mississippi.
    June 23, 2009.
    Larry Smith, Appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
   ISHEE, J., for the Court.

¶ 1. On February 11, 1997, Larry Smith pleaded guilty to two charges of sexual battery of two minors under the age of fourteen. He was sentenced to serve a term of thirty years in the custody of the Mississippi Department of Corrections. After the Scott County Circuit Court denied and dismissed Smith’s motion for post-conviction relief, Smith filed this appeal.

FACTS

¶ 2. Larry Smith pleaded guilty on February 11, 1997, to two counts of sexual battery for engaging in the sexual penetration of two male children, a four-year-old and a five-year-old. He was sentenced to fifteen years in the custody of the Mississippi Department of Corrections for each count, with the sentences to run consecutively. Not long after receiving his sentences, Smith filed a motion in the Scott County Circuit Court for the production of records and transcripts as well as a motion for appointment of counsel. He then filed a writ of mandamus in the circuit court, which was denied. On July 7, 2000, Smith filed a motion for post-conviction relief in the circuit court, which was also denied. He appealed the circuit court’s decision, and this Court affirmed the denial of Smith’s motion on January 15, 2002. Smith v. State, 806 So.2d 1148 (Miss.Ct.App.2002). Next, Smith filed a federal writ of habeas corpus in the United States District Court for the Southern District of Mississippi, which was denied, as was the writ of certiorari that he filed with the United States Supreme Court.

¶ 3. Subsequently, Smith filed his second motion for post-conviction relief in the Scott County Circuit Court. The circuit court entered an order denying and dismissing the motion, finding it to be time-barred and barred as a successive writ. Smith appeals the circuit court’s judgment. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 4. When reviewing a denial of a motion for post-conviction relief, this Court will not reverse the circuit court’s factual findings unless they are found to be clearly erroneous. Andrews v. State, 932 So.2d 61, 62(¶ 4) (Miss.Ct.App.2006). However, where questions of law are raised, the applicable standard of review is de novo. Id.

DISCUSSION

¶ 5. The circuit court denied and dismissed Smith’s motion for post-conviction relief in accordance with Mississippi Code Annotated section 99-39-23(6) (Supp. 2008), which provides that “any order dismissing the prisoner’s motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article.” The statute includes the following exceptions to the prohibition:

a motion filed under Section 99-19-57(2), raising the issue of the offender’s supervening mental illness before the execution of a sentence of death[;] ... those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States that would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that, if it had been introduced at trial, it would have caused a different result in the conviction or sentence^] ... [and] [3] those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked.

Miss.Code Ann. § 99-39-23(6). Because Smith had previously filed a motion for post-conviction relief and his second motion for post-conviction relief did not fit into any of the statute’s exceptions, the circuit court found that he was barred from filing a second motion.

¶ 6. In addition, the circuit court found that Smith was time-barred from filing a motion for post-conviction relief because Mississippi Code Annotated section 99-39-5(2) (Rev.2007) requires that a motion for post-conviction relief be filed “within three years after entry of the judgment of conviction.” The statute also provides the following exceptions to the three-year time limit:

those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence!;] .... [2] those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked!/,] .... [and][3] filings for post-conviction relief in capital cases which shall be made within one year (1) after conviction.

Miss.Code Ann. § 99-39-5(2). Smith pleaded guilty on February 11, 1997, and he filed his motion for post-conviction relief on July 20, 2007, which was well beyond the three-year time limit. His case did not fit into any of the statute’s exceptions; therefore, the circuit court found that his motion was time-barred.

¶ 7. We agree with the circuit court that Smith was procedurally barred from filing his motion for post-conviction relief pursuant to sections 99-39-23(6) and 99-39-5(2). Accordingly, we affirm the circuit court’s judgment that it was without jurisdiction to consider Smith’s motion and that Smith is barred from filing this motion and further motions for post-conviction relief.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.