author: BARNES, J.,

text:
    Randal Scott BLYTHE a/k/a Randle Scott Blythe a/k/a Randall Scott Blythe a/k/a Randal S. Blythe, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00652-COA.
    Court of Appeals of Mississippi.
    Oct. 15, 2013.
    Rehearing Denied Feb. 11, 2014.
    Certiorari Dismissed June 26, 2014.

      Stacey Alan Spriggs, Justin Taylor Cook, attorneys for appellant.
    Office of the Attorney General by Elliott George Flaggs, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   BARNES, J.,

for the Court:

¶ 1. Randal Blythe was convicted by a DeSoto County Circuit Court jury of burglary of a dwelling and was sentenced to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC). The sentence was ordered to run consecutively to any other sentences being served, and he was to receive credit for time served. Blythe filed a motion for a judgment notwithstanding the verdict (JNOV) or, alternatively, a motion for a new trial. The circuit court denied the motions, and Blythe now appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On the night of October 23, 2008, Tom Caldwell and his family returned to their home in Olive Branch, Mississippi, and noticed a strange truck backed into their driveway. The truck was blocking the garage entrance, and its doors were open. The garage door was open, and the light was on. Caldwell recalled that when he left the house earlier, the garage door was only open “maybe a foot” for his pets to have ingress and egress; he was not sure if the pedestrian door to the garage was locked.

¶ 3. Caldwell saw two men exit the garage, get into the truck, and drive away. He called 911 and proceeded to follow the truck for several miles, until law enforcement eventually stopped the truck. The passenger in the truck was Blythe. During a pat-down search, police found a piece from a wire coathanger in the driver’s pocket. The search of the truck also revealed potential burglary tools: wire pliers, screwdrivers, gloves, and two flashlights. Nothing was missing from Caldwell’s home.

¶ 4. Blythe was indicted and charged for multiple counts: conspiracy, burglary, and possession of burglary tools. He was convicted of burglary of a dwelling on December 14, 2011. He was sentenced to twenty-five years in the custody of the MDOC, with the sentence to run consecutively to any other sentences being served and with him to receive credit for time served. The other counts were dismissed.

¶ 5. Blythe promptly filed his post-trial motions on December 19, 2011. The circuit court denied his motions on January 5, 2012; however, the order was not entered until June 27, 2012. Blythe’s counsel filed a notice of appeal on February 3, 2012, but the circuit clerk did not forward the notice of appeal to the Mississippi Supreme Court until April 20, 2012. Blythe filed a motion for an out-of-time appeal on May 25, 2012, claiming that his attorney effectively abandoned his appeal and requesting that new counsel be appointed. The circuit court found Blythe’s notice of appeal to be timely and determined his motion to be moot.

¶ 6. Finding no reversible error, we affirm Blythe’s conviction and sentence.

DISCUSSION

I. Whether defense counsel’s performance was ineffective.

¶ 7. Blythe argues that he suffered from ineffective assistance of counsel because defense counsel failed to request a jury instruction for the lesser-included offense of trespass and a circumstantial-evidence jury instruction. “[T]o prove ineffective assistance of counsel an appellant must show that his counsel’s performance was deficient and that this deficiency prejudiced his defense.” Jefferson v. State, 977 So.2d 431, 438 (¶ 20) (Miss.Ct.App.2008) (citation omitted) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

¶ 8. Generally, Blythe’s claims would be more appropriately raised in a motion for post-conviction relief. Ineffective-assistance claims are generally not considered on direct appeal, unless “(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Aguilar v. State, 847 So.2d 871, 878 (¶ 17) (Miss.Ct.App.2002) (quoting Colenburg v. State, 735 So.2d 1099, 1101 (¶ 5) (Miss.Ct.App.1999)). However, the State does not address the issue of the adequacy of the record on appeal. Instead, it discusses the merits of the claim based on the record facts. Therefore, we find that the State has effectively stipulated to the adequacy of the record, and will address Blythe’s ineffective-assistance-of-counsel claim on direct appeal.

A. Lesser-included Offense Jury Instruction

¶ 9. Blythe’s defense at trial was that he had no intent to commit the crime of burglary. He claims that defense counsel’s failure to submit a jury instruction for the lesser-included offense of trespass deprived him of his right to present his defense. However, Blythe has provided no authority for his proposition that the failure to submit a lesser-included offense instruction constitutes ineffective assistance of counsel. Defense counsel may well have made a calculated decision not to submit the instruction, believing that Blythe would be acquitted of the burglary offense. See Havard v. State, 928 So.2d 771, 791 (Miss.2006) (“Trial counsel’s decision not to submit lesser offense instructions, while it turned out to be unsuccessful, was appropriate trial strategy, and thus beyond the realm of serious consideration on a claim of ineffective assistance of counsel.”). Our review of the record does not reveal any reason to second-guess trial counsel’s strategy. As a result, we find that Blythe has not proved that counsel’s performance was ineffective based on the failure to submit a lesser-included-offense instruction.

B. Circumstantial-Evidence Instruction

¶ 10. Blythe also contends that since no direct evidence of the crime existed, counsel should have requested a circumstantial-evidence instruction. We find no basis for this claim. If there is direct evidence of the crime presented in the form of eyewitness testimony, a circumstantial-evidence instruction is not required. Brown v. State, 961 So.2d 720, 728 (¶ 18) (Miss.Ct.App.2007) (citing Wortham v. State, 883 So.2d 599, 606 (¶ 31) (Miss.Ct.App.2004)). Caldwell testified that he saw Blythe leaving his home and that he followed Blythe and his accomplice until they were apprehended by the police. Thus, there was eyewitness testimony in this case, and a circumstantial-evidence instruction was not warranted.

¶ 11. After reviewing the record, we find no deficiency in defense counsel’s performance, and Blythe’s claims are without merit.

II. Whether the circuit court erred in giving Jury Instruction S-5.

¶ 12. Blythe claims that it was reversible error for the circuit court to give Jury Instruction S-5, which stated: “An inference of the intent to steal may arise from the proof of the breaking and entering.” Defense counsel objected to this instruction at trial, arguing that it was an “incorrect statement of law” and “misleading.”

¶ 13. When we review the giving or refusal of a jury instruction on appeal, the instructions must be read “as a whole to determine whether the jury was fully and fairly instructed according to the applicable law.” Jackson v. State, 68 So.3d 709, 712-13 (¶ 12) (Miss.Ct.App.2011) (quoting Clark v. State, 40 So.3d 531, 544 (¶ 36) (Miss.2010)). In Brown v. State, 799 So.2d 870, 871 (¶ 3) (Miss.2001), a similar argument was made by the defendant, who was found by police “sticking out” of the window of a closed business at night. Rochelle Brown claimed he saw someone enter the building and was trying to get him out. The building, however, was empty. Id. Although the argument in that case pertained to the sufficiency of the evidence, like Blythe, Brown claimed that there was no evidence of intent to steal. Id. at (¶ 6). The Mississippi Supreme Court concluded that intent “may be inferred from the circumstances.” Id. at 872 (¶8).

Some presumptions are to be indulged in against one who enters a building unbidden at a late hour of night, else the burglar caught without booty might escape the penalties of the law. People are not accustomed in the nighttime to enter homes of others, when asleep, with innocent purposes. The usual object is theft; and this is the inference ordinarily to be drawn in the absence of explanation from breaking and entering at night accompanied by flight when discovered, even though nothing has been taken.

Id. (quoting Nichols v. State, 207 Miss. 291, 296-97, 42 So.2d 201, 202-03 (1949)).

¶ 14. Additionally, this Court addressed this issue in Crawford v. State, 839 So.2d 594 (Miss.Ct.App.2003). In Crawford, the victim arrived home to find the defendant inside, trying “frantically” to leave the home. Nothing had been taken from the home. Id. at 595 (¶¶ 2, 4). Discussing the supreme court’s prior holding in Brown, we held that “an inference of the intent to steal may arise from proof of the breaking and entering.” Id. at (¶¶ 5-6) (citing Gillum v. State, 468 So.2d 856, 859 (Miss.1985)). Similarly to Brown and Crawford, Blythe entered the Caldwells’ home without permission. He was there during night-time hours, with no discernible innocent purpose.

¶ 15. Jury Instruction S-5 stated nearly identical language from our finding in Crawford and was, therefore, a correct statement of law. Accordingly, we find no abuse of discretion in the circuit court’s giving of Jury Instruction S-5. In this case, Caldwell left the garage door open only a foot, but upon return, the door was halfway up, indicating that a breaking did occur. See Fulgham v. State, 12 So.3d 558, 560 (¶10) (Miss.Ct.App.2009) (“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.’ ” (quoting Genry v. State, 767 So.2d 302, 309 (¶ 21) (Miss.Ct.App.2000))).

III. Whether the circuit court’s failure to instruct the jury on the elements of the underlying crime of larceny was reversible error.

¶ 16. Blythe claims that the failure to issue a jury instruction regarding the elements of the underlying crime of larceny was reversible error. Jury Instruction S-1 stated that the jury was to find Blythe guilty if it found, beyond a reasonable doubt, that he broke into and entered the victims’ home with the “intent to commit the crime of larceny, therein[.]”

¶ 17. Blythe is correct that the jury was not instructed on the elements of larceny. In a recent case, Daniels v. State, 107 So.3d 961 (Miss.2013), the Mississippi Supreme Court unanimously held that a jury instruction’s failure to include the element of the specific underlying crime was reversible error. In Daniels, Jury Instruction S-l had been amended to read that Edward Daniels could be found guilty of burglary of a dwelling if it was found that he “intended, once inside this dwelling, to commit a crime therein[.]” Id. at 963 (¶ 8). The phrase “grand larceny” had been omitted in the amendment as the intended crime. Id. The supreme court stated:

One of the essential elements of the crime of burglary is the intent to commit a specific crime. Jury Instruction S-l fails to instruct the jury as to what crime Daniels intended to commit, and thus fails to instruct the jury on an essential element of the crime of burglary. The failure to instruct the jury on some specific crime in the second element of burglary would have allowed each of the jurors to arbitrarily select some crime of which there was no proof, and use that nonexistent offense to convict Daniels of burglary. The jury instructions as a whole fail to cure this fatal defect; therefore the trial court abused its discretion in allowing the amendment to Instruction S-l that deleted the phrase “grand larceny.”

Id. at 964 (¶ 17) (internal citations omitted). The supreme court revisited this issue again in Bolton v. State, 113 So.3d 542, 544 (¶ 4) (Miss.2013), finding a jury instruction that permitted a jury to convict the defendant of any crime while inside the dwelling was “fatally flawed,” as it relieved the State “of its obligation of proving his intent to commit a particular crime.”

¶ 18. However, the issue here is not whether the instruction specifically identified the underlying crime. Unlike Daniels and Bolton, Jury Instruction S-l clearly stated the specific underlying crime-larceny. Rather, the issue is whether an instruction on the elements of the underlying crime was required. The Daniels court made it clear that “the State did not have to prove grand larceny as an element of burglary [.]” Daniels, 107 So.3d at 964 (¶ 16) (emphasis added). Moreover, Jury Instruction S-5, regarding the inference of the intent to steal, was submitted to the jury along with Jury Instruction S-l. Consequently, the circuit court’s decision not to submit a jury instruction on the underlying crime of larceny does not constitute reversible error.

IV. Whether the circuit court erred in denying Blythe’s motions for a JNOV or, in the alternative, a new trial.

A. Sufficiency of the Evidence

¶ 19. “A motion for [a] JNOV challenges the legal sufficiency of the evidence.” Johnson v. State, 81 So.3d 1020, 1023 (¶ 6) (Miss.2011) (citing Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005)). In our determination of whether the evidence is sufficient to sustain the verdict, we must inquire whether the evidence shows “beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed[.]” Bush, 895 So.2d at 843 (¶ 16). “[W]here the evidence fails to meet this test[,] it is insufficient to support a conviction.” Id. However, if any facts and inferences “‘point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty,’ the proper remedy is for the appellate court to reverse and render.” Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶ 20. Caldwell testified that he saw Blythe come out of his home that evening. When Blythe and his accomplice were later apprehended, a part of a coath-anger was found in the accomplice’s pocket. There were also several tools typically used by burglars in the truck. Although nothing was taken from the home, “[t]he jury is permitted to draw ‘any reasonable inferences from all the evidence presented in the case.’ ” Lambert v. State, 101 So.3d 1172, 1177 (¶ 17) (Miss.Ct.App.2012) (quoting Wright v. State, 9 So.3d 447, 453 (¶ 10) (Miss.Ct.App.2009)). “If intent required definite and substantive proof, it would be almost impossible to convict, absent facts disclosing a culmination of intent.” Id. Here, the jury could infer that Blythe had the intent to commit larceny when he went into the home, at night, without a permissible reason for being there. Furthermore, he and his accomplice fled when Caldwell and his family returned home.

¶ 21. Viewing the evidence in the light most favorable to the State, we determine that the evidence was sufficient to support the verdict, and we find no error in the circuit court’s denial of Blythe’s motion for a JNOV.

B. Weight of the Evidence

¶ 22. A motion for a new trial addresses the weight of the evidence. Jackson v. State, 90 So.3d 597, 605 (¶ 31) (Miss.2012). “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.” Bush, 895 So.2d at 844 (¶ 18) (citation omitted).

¶23. As we have already discussed at length, Blythe was identified by the victim as one of the men leaving his home that evening. While there was nothing taken from the home, an inference of an intent to commit larceny may arise from the State’s proof that Blythe broke into and entered the home. We cannot find that the verdict was against the overwhelming weight of the evidence; nor can we find that allowing the verdict to stand would sanction an unconscionable injustice. Thus, the circuit court acted within its discretion in denying Blythe’s motion for a new trial, and this argument is without merit.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF TWENTY-FIVE YEARS AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, WITH THE SENTENCE TO RUN CONSECUTIVELY TO ANY SENTENCE CURRENTLY BEING SERVED AND CREDIT TO BE GIVEN FOR TIME SERVED, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

      . Blythe is represented by the Office of Indigent Appeals on appeal; therefore, he did receive new representation on appeal.

        . While Bolton had been indicted for breaking and entering a dwelling with the intent to commit larceny, at trial the jury was instructed that it could convict Bolton if it found that he had broken and entered the home "with the intent to commit the crime of larceny or any other crime [.]” Bolton, 113 So.3d at 543 (¶ 1) (emphasis added by supreme court). The supreme court determined that while the State did not have to prove that Bolton committed larceny, "the jury did have to find that Bolton had intended to commit larceny, since that was the underlying offense specified by the grand jury.” Id. at (¶ 2).

      . Larceny requires the specific intent to steal or “deprive the owner of his property.” Slay v. State, 241 So.2d 362, 364 (Miss.1970).


source: Caselaw Access Project

license: Public Domain

text:
    Thomas Earl ELLIS a/k/a Thomas Ellis a/k/a Thomas E. Ellis a/k/a Thomas Ellis McCoy, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01070-COA.
    Court of Appeals of Mississippi.
    Oct. 29, 2013.
    Rehearing Denied March 18, 2014.
    Certiorari Denied June 26, 2014.

      Office of State Public Defender by W. Daniel Hinchcliff, George T. Holmes, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   BARNES, J.,

for the Court:

¶ 1. Thomas Earl Ellis was convicted of sexual battery and gratification of lust in the Circuit Court of Hinds County. He was sentenced to thirty years for sexual battery and fifteen years for gratification of lust, as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007), with the sentences to be served consecutively in the custody of the Mississippi Department of Corrections (MDOC). On appeal, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2008, Ellis was married to Carla, and the couple lived with Carla’s two children, eight-year-old Tiffany and her brother, in Jackson, Mississippi. Although Tiffany told her mother that Ellis had been entering her bedroom and penetrating her vagina with his finger, Carla felt that more evidence was needed in order to take any action. One evening while Tiffany was lying on a mattress by the couple’s bed, Carla finally observed Ellis reaching over her and putting his hand near Tiffany’s pelvic area. As a result, Carla and the children left Ellis and went to a shelter. Tiffany was subsequently placed in a foster home.

¶ 3. Tiffany was interviewed by Rachel Daniels, the program director of the Mississippi Children’s Advocacy Center (CAC). Also present at the CAC interview was LaTasha Holmes, a child-protection investigator with the Hinds County Sheriffs Department. Tiffany later authenticated the videotape of the CAC interview at trial. Dr. Scott Benton, director of CAC and an associate professor of pediatrics at the University of Mississippi Medical Center, examined Tiffany, but found no physical evidence to support the allegation of sexual abuse. Kimberly Smith, with the Mississippi Children’s Home Services, testified that she had provided therapy to Tiffany, who told her that she (Tiffany) had been sexually abused by Ellis.

¶ 4. There was also testimony at trial by two witnesses who had been sexually abused by Ellis. The jury was read prior testimony by Ellis’s nephew, Charles Edwards, that Ellis had kissed him when he was nine. Charles also said that Ellis came to his bed and tried to rub on his penis. Another witness, twenty-eight-year-old Sandra Carter, testified at trial that when she was seven years old, Ellis came into her room on several occasions and penetrated her with his finger. Ellis had been married to her mother. The trial court gave a cautionary instruction to the jury regarding these witnesses’ testimony, noting that it was offered only for the purpose of showing motive, intent, absence of mistake, and opportunity.

¶ 5. On March 31, 2011, Ellis was convicted of sexual battery and gratification of lust and sentenced as a habitual offender to thirty years and fifteen years, respectively, in the custody of the MDOC, with the sentences to be served consecutively. Ellis now appeals, raising three issues:

I. Whether Ellis’s right to a speedy trial was violated.
II. Whether the victim’s recorded out-of-court interview was improperly published to the jury without being admitted into evidence.
III. Whether the State’s solicitation of an improper comment on the defendant’s post -Miranda silence was reversible error.

Finding no error, we affirm the judgment of conviction and sentences.

DISCUSSION

I. Whether Ellis’s right to a speedy trial was violated.

¶ 6. Ellis was taken into custody on December 30, 2008. The grand jury indicted Ellis on May 29, 2009, and he was arraigned and appointed counsel on July 13, 2009. Ellis filed a pro se motion for a speedy trial on July 23, 2009. He subsequently filed a pro se motion to dismiss for failure to provide a speedy trial on April 20, 2010. Ellis filed four more pro se motions for a speedy trial: June 21, 2010; July 19, 2010; September 2, 2010; and January 20, 2011. There is no indication that the question of a speedy trial was ever addressed by the trial court.

¶ 7. The right to a speedy trial is a constitutional right under the Sixth Amendment to the United States Constitution and the Mississippi Constitution, Article 3, Section 26. “[T]he constitutional right to a speedy trial attaches at the time the individual is accused.” Mason v. State, 42 So.3d 629, 634 (¶ 18) (Miss.Ct.App.2010) (citing Stark v. State, 911 So.2d 447, 450 (¶ 7) (Miss.2005)). Additionally, a statutory right to a speedy trial exists under Mississippi Code Annotated section 99-17-1 (Rev.2007), which requires “that an accused be brought to trial within 270 days of arraignment unless there is a showing of “good cause.” ” Lipsey v. State, 50 So.3d 341, 352 (¶ 35) (Miss.Ct.App.2010).

¶ 8. When a defendant’s constitutional right to a speedy trial is questioned, the balancing test set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), is applicable. Those factors to be considered are: “(1) the length of the delay, (2) the reason for the delay, (3) whether the defendant has asserted his right to speedy trial, and (4) whether the defendant was prejudiced by the delay.” Noe v. State, 616 So.2d 298, 300 (Miss.1993) (citing Barker, 407 U.S. at 530, 92 S.Ct. 2182). “The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Barker, 407 U.S. at 530, 92 S.Ct. 2182 (emphasis added). “[A]ny delay of eight (8) months or longer is presumptively prejudicial.” Noe, 616 So.2d at 300 (quoting Smith v. State, 550 So.2d 406, 408 (Miss.1989)).

¶ 9. In Dora v. State, 986 So.2d 917, 924-25 (¶¶ 15-20) (Miss.2008), the Mississippi Supreme Court found a defendant’s failure to raise the issue of speedy trial with the trial court had waived the issue on appeal. Similarly, while Ellis filed numerous motions regarding his right to a speedy trial, neither he nor his attorney ever set them for a hearing or requested a ruling on the motions. A defendant has a duty to seek a ruling on a motion demanding a speedy trial. Craft v. State, 832 So.2d 467, 471 (¶ 10) (Miss.2002); see also Reed v. State, 31 So.3d 48, 57 (¶ 36) (Miss.Ct.App.2009) (Motions are not self-executing; it is the defendant’s responsibility to seek a ruling.). Therefore, we find Ellis is procedurally barred on direct appeal from raising the issue of whether his right to a speedy trial was violated.

¶ 10. Although Ellis’s claim is barred on direct appeal, we dismiss his claim without prejudice, preserving his ability to raise the issue in a motion for post-conviction relief in association with a claim of ineffective assistance of counsel for failure to request a hearing on the motions.

II. Whether the trial court committed error by allowing the jury to view the victim’s out-of-court recorded interview without entering the tape into evidence, resulting in prejudice to Ellis.

¶ 11. The jury was allowed to view the video recording of the CAC interview with the victim, Tiffany, but the trial court did not allow the tape to be taken into the jury room during deliberations. Ellis argues that exclusion of the tape from the jury room meant that the trial judge decided that the tape was inadmissible as evidence; thus, the viewing of the tape constituted reversible error.

¶ 12. The State had requested that the tape of the CAC interview be entered for identification purposes through the testimony of Daniels, the CAC program director, and then later entered into evidence through Tiffany’s testimony. Any inadmissible information had been redacted from the tape. The trial court said that was “fine,” noting: Although defense counsel argued that the tape was “duplicative” since the tape participants were going to testify, the trial judge ruled that he would allow the tape to be played for the jury, stating: “I’m going to allow him to use it.... [I]t gives the jury some idea of what [Tiffany] was like at the time of her disclosure. So, I’ll allow it to come in at that point.”

If you want to go through the tape with [Tiffany], that’s fine.... But what the jury is going to look for is her testimony before them this morning. But I will agree that you have a right to show them her state at the time that she made the disclosure.

¶ 13. Yet when Tiffany began her testimony, the trial court determined that although the recorded interview could be played for the jury, the tape was not to be taken back to the jury room.

[THE STATE:] Judge, at this time, ... what’s previously offered into evidence as — not offered into evidence. It was offered for identification purposes, the videotaped interview of the CAC center with [Tiffany] and [Daniels]. We’d ask to now have it into evidence and be permitted to publish it to the jury through the television set.
THE COURT: I’ll allow you to publish it, but it will remain for ID purposes. I’ll allow you to show it, but it will not go back into the jury room. They’ll have to remember as best they can, but I will allow you to show it.

Ellis claims that this exchange demonstrates that the trial judge ruled the tape was inadmissible; therefore, to allow the jury to view the tape was reversible error. Ellis further argues: “It cannot be said that the jury’s verdict here was made without considering the videotape.” The State argues that the later ruling of the trial court was “merely a misstatement” and that the judge had already ruled the recording was admissible.

¶ 14. Based on a review of the record, we find no merit to Ellis’s claim that the trial court “concluded that the video was inadmissable as evidence and did not admit it as such.” The trial court allowed the jury to view the video as evidence, similar to live testimony by witnesses; it just prohibited this particular evidence from being taken into the jury room for deliberations. We find this action proper; the jury would also have no record of the testimony of other witnesses. Rule 8.10 of the Uniform Rules of Circuit and County Court states: “The court shall permit the jury, upon retiring for deliberation, to take to the jury room the instructions and exhibits and writings which have been received in evidence, except depositions.” (Emphasis added). While the recording in this instance was not deposition testimony, it was similar in nature, containing prior statements made by the victim in an interview. Furthermore, Ellis suffered no prejudice as a result of the trial court’s decision not to allow this evidence into the jury room. There was also sufficient evidence to support the jury’s verdict apart from the videotape.

¶ 15. Accordingly, we find that the trial court had ruled that the taped interview was admissible as evidence, and this issue is without merit.

III. Whether the State’s solicitation of an improper comment on the defendant’s post -Miranda silence was reversible error.

¶ 16. During the prosecution’s questioning of Holmes, the Hinds County investigator, at trial, the following occurred:

Q. And have you had the opportunity to contact a Thomas Ellis regarding any allegations of abuse?
A. Thomas Ellis was arrested December the 30th, 2008. And I brought him up to speak with him, and he declined to make a statement.

No objection to this testimony was raised, and there was no request for a mistrial.

¶ 17. Quoting Quick v. State, 569 So.2d 1197, 1199 (Miss.1990), Ellis argues that “[i]t is improper and, ordinarily, reversible error to comment on an accused’s post-Miranda [] silence.” “The accused’s right to be silent then is equally as strong as the right not to testify and it is error to comment on either.” Id. The State admits that the “challenged testimony ... [is] legally improper.”

¶ 18. “If a question arises as to the prosecution’s comment on the defendant’s failure to testify, each case must be considered on an individual basis on the facts of that particular case.” Crutcher v. State, 68 So.3d 724, 728 (¶ 6) (Miss.Ct.App. 2011) (citing Da La Beckwith v. State, 707 So.2d 547, 584 (¶148) (Miss.1997)). If such an error does occur, the witness’s comment “is deemed harmless beyond a reasonable doubt where the evidence of guilt is ‘so overwhelming that the jury would have returned a guilty verdict in spite of the prosecutor’s comment.’ ” Id. (quoting De La Beckwith, 707 So.2d at 584 (¶ 148)).

¶ 19. In Gossett v. State, 660 So.2d 1285, 1291 (Miss.1995), the solicitation of an improper comment regarding a defendant’s refusal to make a statement was not found to be reversible error, as the witness was interrupted before actually making the improper comment. There was also overwhelming evidence of guilt, so even if the witness was able to answer, it would have been harmless error. In Gunn v. State, 56 So.3d 568, 572 (¶ 16) (Miss.2011), the supreme court found that although the prosecution improperly solicited a comment regarding the defendant’s silence following his arrest, it was harmless error, as “the evidence weighted] overwhelmingly against the defendant.” Additionally, the comment was not used to impeach the defendant’s testimony and not revisited in closing arguments. Id.

¶ 20. Miost recently, in Smith v. State, 90 So.3d 122 (Miss.Ct.App.2012), this Court considered circumstances similar to the present case. The State asked a witness, an investigator, if he had “any contact with the suspect.” Id. at 126 (¶ 8). The officer replied that the suspect was advised of his Miranda rights and “refused to give [the officer] a statement.” Id. Defense counsel objected, but did not move for a mistrial; therefore, we held that Smith “failed to preserve this issue for appeal.” Id. at (¶ 9). We further addressed the merits and found that the prosecution’s question was not an intentional solicitation of the improper comment and did not warrant reversal. Id. at 127 (¶ 13).

¶ 21. In the present case, defense counsel did not make a contemporaneous objection to the testimony by Holmes; nor did counsel move for a mistrial. Thus, any claim regarding the improper comment is procedurally barred from appellate review.

¶ 22. Further, we find that any solicitation of the comment was harmless error. The circuit judge instructed the jury that the defendant’s failure to testify could not be held against him. See Blue v. State, 674 So.2d 1184, 1215 (Miss.1996) (overruled on other grounds) (“[E]ven if the prosecutor’s comment highlighted [the defendant’s] failure to testify, the jury instructions, when considered as a whole, directed the jury to ignore the fact that [he] did not testify.”). There was also overwhelming evidence of guilt in this case. Therefore, we find this issue is without merit.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF SEXUAL BATTERY AND GRATIFICATION OF LUST, AND SENTENCES AS A HABITUAL OFFENDER OF THIRTY YEARS AND FIFTEEN YEARS, RESPECTIVELY, WITH THE SENTENCES TO RUN CONSECUTIVELY 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 HINDS COUNTY.

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

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

      . The names of the two witnesses who testified that they were victims of abuse have also been changed to protect their identities.

      . Additionally, as the State notes, Ellis’s originally appointed defense counsel withdrew in March 2010, citing Ellis’s constant filing of bar complaints against him, and Ellis was appointed new defense counsel. Ellis filed numerous pro se motions during his incarceration, giving the impression that he may have been uncooperative during the preparation phase of his trial.

      . Although Ellis cites Gardner v. City of Tupelo, 76 So.3d 204 (Miss.Ct.App.2011), to support his argument that a jury should not be allowed to consider things not in evidence, we find the reliance on Gardner misplaced and inapplicable to the present situation. Gardner concerned the appeal of a zoning issue, not a jury verdict.

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


author: MAXWELL, J.,

text:
    Damion Deandre STOKES a/k/a Damion D. Stokes a/k/a Damion Stokes, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01683-COA.
    Court of Appeals of Mississippi.
    Nov. 5, 2013.
    Rehearing Denied April 8, 2014.
    Certiorari Denied July 3, 2014.

      Office of State Public Defender by W. Daniel Hinchcliff, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before GRIFFIS, P.J., BARNES, MAXWELL and JAMES, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Damion Deandre Stokes seeks a new trial following his conviction for conspiracy to commit murder. He argues the State’s use of perjured testimony violated his due-process rights, rendering his trial “fundamentally unfair.” But after delving into Stokes’s argument, we find his actual complaint focuses on the prosecutor’s comments that he personally disbelieved one of the State’s witnesses, not on perjured testimony. And Stokes waived any appellate challenge to these statements by not contemporaneously objecting to them.

¶ 2. While we find the prosecutor’s comments were improper, they did not cause a miscarriage of justice. So a reversal based on plain error is not appropriate. Because the overwhelming weight of the evidence supports the jury’s guilty verdict, we affirm.

Background

I. Discovery of Body

¶ 3. The State’s theory was that Stokes and three others hatched a plan to kill Ira Phillips because he failed to pay a drug debt. A murder investigation began after Phillips’s bullet-riddled body was discovered lying in a dark, empty gravel cul-de-sac in Panola County, Mississippi. The two men who found the body had been summoned to help Stokes and Jacquentin Lawson push Lawson’s car, which was stuck in the mud in the road leading to the cul-de-sac.

¶ 4. Because of the way Lawson’s vehicle was situated, it was necessary for the two men to drive to the end of the cul-de-sac to turn around before attempting to push out Lawson’s car. But Stokes and Lawson tried to dissuade them from driving into the cul-de-sac to turn around. When the two men did anyway, they spotted the body. At this point, the usually talkative Stokes was quiet and non-reactive, even when they turned the body over and learned the dead man was Phillips, Stokes’s friend. Lawson began picking up shell casings, but was stopped when the two men told him not to tamper with the evidence.

¶ 5. While the group was waiting for the police to respond, Stokes walked off and left. Stokes’s cousin testified that he received a call from Stokes to come pick him up near the cul-de-sac and to drop him off near Stokes’s uncle’s house.

II. Conspiracy to Kill Phillips

¶ 6. Stokes’s uncle, Vincent Ruffin, was one of the charged co-conspirators. At trial, Gary Dantzson, another charged conspirator, testified that Ruffin was a drug dealer, whom Stokes worked for selling marijuana.

¶ 7. According to Dantzson, the afternoon before the shooting, Dantzson and Ruffin were smoking marijuana together when Ruffin began complaining about someone who owed him money. Dantzson became scared because he knew he owed Ruffin money and thought Ruffin was talking about him. But Dantzson eventually realized Ruffin was talking about Phillips. Dantzson testified Ruffin offered to reduce Dantzson’s debt if he agreed to “whoop” Phillips.

¶ 8. Dantzson then left Ruffin’s house and saw Lawson across the street, putting gas in his car. Lawson asked Dantzson if he was “ready.” The two then picked up Stokes and Phillips. And the four men rode around in Lawson’s car smoking marijuana. According to Dantzson, they discussed robbing someone as a ruse to keep Phillips from suspecting he was actually the target.

¶ 9. When they reached the deserted cul-de-sac, Lawson asked everyone to get out of the car so the smoke would air out. Stokes got out of the car and walked to where Dantzson was standing. Dantzson testified Stokes slipped him a Tek-9 handgun and told him, “Unk said handle this.” Stokes then approached Phillips, and asked Phillips why he had not paid Ruffin. At this point, Phillips started to run and Dantzson shot Phillips several times with the Tek-9. Phillips fell dead, and Dantzson handed the gun back to Stokes.

¶ 10. Dantzson took off running, after he, Stokes, and Lawson quickly devised a cover story to tell the authorities if questioned. Dantzson testified he later saw Stokes with the Tek-9 pistol at Ruffin’s house, where Dantzson had gone to report what had happened.

III. Murder Investigation

¶ 11. Dantzson’s trial testimony differed from what he initially told police. When first interviewed by police, Dantzson claimed there was a second car in the cul-de-sac that night, and that the fatal shots came from that vehicle. Months later Dantzson notified authorities he had lied earlier to protect himself from Ruffin. Dantzson confessed to shooting Phillips and agreed to testify about what happened that night.

¶ 12. Stokes and Lawson had also told police there had been a second car that committed the drive-by shooting. But none of the three men could specifically identify the vehicle or shooter. Nor could they match their descriptions of the car or the location of the shooter to the others’ versions of this second-car theory. According to the investigating officers, their general story was not supported by the physical evidence. There were no tire marks in the dirt and gravel indicating a second vehicle. And the shell casings were found lying on the ground in the spot Dantzson said he was standing when he shot Phillips. Had the shooter been inside a vehicle, as claimed, the casings would have likely fallen inside the car.

¶ 13. An officer further testified that the location of Phillips’s body and the blood trail leading to it corroborated Dantzson’s version recounted at trial.

IV. Stokes’s Trial

¶ 14. The State charged Stokes, Lawson, Dantzson, and Ruffin in a two-count indictment with conspiracy to commit murder and the murder of Phillips. At Stokes’s trial, the State called Dantzson to testify about his and Stokes’s conspiratorial roles and to establish that Stokes had supplied the murder weapon and relayed Ruffin’s instruction to “take care” of Phillips. The State also called Stokes’s uncle, Ruffin, who testified about Stokes’s connection to the murder weapon but strongly denied any role in the conspiracy.

¶ 15. Anticipating Ruffin’s denial, the assistant district attorney told the jury in opening statements that he did not personally believe Ruffin was not involved in Phillips’s murder. And the prosecutor announced his plan to call Ruffin and “tell him on the stand I don’t believe him.” Then, during Ruffin’s direct examination, when Ruffin did indeed deny involvement with Phillips’s murder, the prosecutor told Ruffin, “I’ve told you from day one I do not believe you.” Once more, in closing arguments, the prosecutor repeated his personal disbelief of Ruffin’s denial of involvement.

¶ 16. The jury found Stokes guilty of conspiracy to commit murder but acquitted him of the murder charge. He was sentenced to ten years’ imprisonment, followed by ten-years’ post-release supervision. After an unsuccessful post-trial motion, Stokes timely appealed.

Discussion

¶ 17. On appeal, Stokes makes distinct challenges to two of his charged co-eon-spirators’ testimony. He first claims that, because the State did not believe Ruffin’s testimony about not being involved in Phillips’s murder, it could not call Ruffin without sponsoring perjured testimony. And second, as to Dantzson, Stokes argues the jury should not have believed his testimony, because it was self-interested, conflicting, and uncorroborated, and his conviction based on this testimony goes against the overwhelming weight of the evidence.

I. Ruffin’s Testimony — Prosecutor’s Comments on Credibility

¶ 18. Stokes argues the State could not call Ruffin because it believed Ruffin was lying about his involvement in the conspiracy. But this issue is waived, since Stokes neither objected at trial to Ruffin’s testimony nor to the prosecutor calling Ruffin as a witness and commenting that he disbelieved him. Foster v. State, 689 So.2d 1263, 1288-89 (Miss.1994) (holding failure to object at trial waives issue for appellate review).

¶ 19. While Stokes acknowledges this procedural default, he asserts his failure to object does not bar appellate review because the State’s use of Ruffin’s testimony was “fundamentally unfair” and, thus, plain error. Hurt v. State, 84 So.3d 1191, 1197 (¶ 17) (Miss.Ct.App.2009) (“A review under the plain-error doctrine is necessary when a party’s fundamental rights are affected, and the error results in a manifest miscarriage of justice.” (quoting McGee v. State, 953 So.2d 211, 215 (¶8) (Miss.2007))). But though Stokes is now suggesting the State’s use of perjured testimony violated his due-process rights, we find the actual claimed error involves the State’s assertion of its personal belief, not its sponsoring of perjured testimony. And though this trial tactic was improper, after reviewing the entire record of Stokes’s trial, we find it was harmless, since there was overwhelming evidence of Stokes’s guilt on the conspiracy count.

A. The Error Stokes Asserts — State’s Use of Perjured Testimony

¶ 20. “As long ago as Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 ... (1935), [the United States Supreme] Court made clear that deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with ‘rudimentary demands of justice.’ ” Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). So when a “conviction has been obtained through the use of false evidence or perjured testimony,” a defendant’s constitutional right to due process has been violated. Pearson v. State, 428 So.2d 1361, 1363 (Miss.1983) (citing Mooney, 294 U.S. at 112-13, 55 S.Ct. 340). And “[w]here such false evidence has in fact contributed to the conviction, the accused is entitled to relief therefrom.” Id. (citing Napue v. Illinois, 360 U.S. 264, 269-70, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Giglio, 405 U.S. at 153, 92 S.Ct. 763).

¶ 21. While Stokes cites Giglio, Napue, and Mooney to argue he is entitled to a new, fair trial, he admits he is not actually arguing that the State deliberately deceived the jury by sponsoring known perjured testimony. See Giglio, 405 U.S. at 153, 92 S.Ct. 763. For example, he is not claiming the State knew Ruffin was lying when he testified he had seen Stokes with a gun — the only portion of Ruffin’s testimony that remotely supported Stokes’s conviction. Indeed, if such were the case, the State’s failure to correct Ruffin’s testimony would have been a violation of Stokes’s due-process rights. See id. (holding the State’s failure to correct false evidence, even if unsolicited, violates due process). But that is not what Stokes is claiming.

¶ 22. Rather, Stokes is complaining that the prosecutor expressed his personal belief that Ruffin was lying in portions of his testimony. So what Stokes is really arguing is that the State was “inviting” the jury to believe the opposite of Ruffin’s testimony regarding his involvement in the conspiracy — not that the State used perjured testimony. In fact, Stokes has never claimed that Ruffin in fact perjured himself by denying involvement in the conspiracy. Rather, his focus is on the prosecutor’s injection of his personal subjective belief that Ruffin was lying when he denied his involvement in the murder conspiracy.

B. The Harmless Error that Actually Occurred — Prosecutor’s Improper Injection of Personal Opinion

¶ 28. “[A] prosecutor is prohibited from stating his personal opinion as to the veracity of a witness[.]” Palmer v. State, 878 So.2d 1009, 1012 (¶ 9) (Miss.Ct.App.2004); see also United States v. McCann, 613 F.3d 486, 495 (5th Cir.2010) (citing United States v. Gracia, 522 F.3d 597, 601 (5th Cir.2008)); Evans v. State, 725 So.2d 613, 673 (¶249) (Miss.1997) (citing Foster v. State, 639 So.2d 1263, 1288 (Miss.1994)). Typically, this type of prohibited statement occurs when a prosecutor attempts to vouch for or bolster a State witness by commenting in closing argument that the witness was telling the truth. E.g., Foster, 639 So.2d at 1288. But here we have the opposite — a statement made in an attempt to discredit the State’s witness, without a basis in the evidence, which is equally prohibited.

¶ 24. “Except to the extent the prosecutor bases any opinion on the evidence in the case, he may not express his personal opinion on the merits of the case or the credibility of witnesses.” United States v. Gallardo-Trapero, 185 F.3d 307, 320 (5th Cir.1999) (quoting United States v. Garza, 608 F.2d 659, 663 (5th Cir.1979)). While the State may certainly impeach its own witnesses with prior inconsistent statements and probe for bias or prejudice, it cannot lend the prestige of the district attorney’s office to profess personal opinions about a witness’s credibility. If such was allowed, jurors would likely assume the prosecutor’s comments are based on facts or evidence, known by the prosecutor but not presented to the jury. See Berger v. United States, 295 U.S. 78, 88-89, 55 S.Ct. 629, 79 L.Ed. 1314 (1935).

¶ 25. These admonitions aside, our law is equally clear that a defendant cannot sit idly by if he or she believes a prosecutor has impermissibly stated a personal view. When a prosecutor makes a prohibited comment, “it is incumbent on defense counsel to raise a proper objection when the offensive language is uttered or waive appellate review of the issue.” Foster, 639 So.2d at 1288-89 (citations omitted) (holding the issue of improper vouching for the State’s witnesses was waived due to failure to object or raise the issue in a post-trial motion); see also Evans, 725 So.2d at 673 (¶¶ 246-47) (same); Palmer, 878 So.2d at 1012 (¶ 9) (same). And here, Stokes waived any potential challenge to the prosecutor’s comments by not objecting when they were made. So there is an obvious procedural default.

¶ 26. This means Stokes’s only available argument is under the plain-error exception to the contemporaneous-objection rule. See Foster, 689 So.2d at 1289 (“The defendant who fails to make a contemporaneous objection must rely on plain error to raise the assignment on appeal.”). But while this exception exists, it “is to be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.” United States v. Frady, 456 U.S. 152, 168 n. 14, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982).

¶ 27. We have reviewed the record from Stokes’s trial in its entirety to determine if the comments resulted in a miscarriage of justice. And after doing so, we initially note that there might well have been a strategic reason for the defense to allow these comments to go unchecked. It is unquestionably not the norm for the State to call its own witnesses liars, so perhaps Stokes’s attorney reasonably concluded the State’s credibility attack on its own witness enured to his benefit. So the comments may have indeed been welcomed, thus explaining the lack of an objection.

¶ 28. Further, even removing Ruffin’s testimony and the State’s improper comments about its veracity, several other witnesses offered strong evidence supporting Stokes’s guilt on the conspiracy count. See McCoy v. State, 954 So.2d 479, 489 (¶¶ 30-31) (Miss.Ct.App.2007) (holding no reversible error occurred due to clearly improper statements by prosecutor, which were followed by no objection, because taking away comments, it remained clear there was sufficient evidence to convict).

¶ 29. After review, we find the prosecutor’s comments, while impermissible, did not prejudicially affect Stokes’s substantive rights. See Gallardo-Trapero, 185 F.3d at 320-21 (finding prosecutor’s improper statements bolstering government’s witness “did not prejudicially affect the substantive rights” of the defendant and, thus, did not require reversal); Mack v. State, 650 So.2d 1289, 1320-22 (Miss.1994) (finding prosecutor’s repeated use of “I” statements, while improper, was harmless error).

II. Dantzson’s Testimony — Weight of the Evidence

¶ 30. Stokes next argues his motion for a new trial should have been granted because the jury’s verdict was against the overwhelming weight of the evidence. However, “the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005) (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (¶ 18) (Miss.2000)). And here, we do not find, as Stokes urges us to, that the evidence was heavily against the jury’s guilt verdict on the conspiracy-to-commit-murder count.

¶ 31. To establish conspiracy to commit murder, the State must prove beyond a reasonable doubt that Stokes agreed with one or more persons to commit the crime of murder. See Moore v. State, 105 So.3d 390, 394 (¶ 15) (Miss.Ct.App.2012) (citing Berry v. State, 996 So.2d 782, 787 (¶ 12) (Miss.2008)) (holding conspiracy count requires State to show that two or more persons agreed to commit underlying crime). Since under Mississippi law, the criminal agreement alone is sufficient to establish the completed crime of conspiracy, no overt act need be proved in furtherance of the conspiracy. Ford v. State, 546 So.2d 686, 688 (Miss.1989). And the agreement itself need not be expressed or formal. Id. (citing Morgan v. State, 741 So.2d 246, 255 (¶ 27) (Miss.1999)). Rather, the jury may infer a conspiracy from the circumstances, “acts[,] and conduct of the alleged conspirators.” Morgan, 741 So.2d at 255 (¶ 27). “[0]nce the existence of a conspiracy is shown, only slight evidence is required to connect a particular defendant with the conspiracy.” Id. (emphasis added) (citing United States v. James, 528 F.2d 999, 1012 (5th Cir.1976)).

¶ 32. Dantzson testified he and Lawson picked up Stokes and Phillips with the understanding he was going to “whoop” Phillips on behalf of Ruffin. And after Lawson drove to the cul-de-sac and told everyone to get out of the car, Stokes handed him a Tek-9 pistol and instructed him that Ruffin had said to “take care of this.” At this point, once Phillips tried to flee, Dantzson shot him several times, killing him. Non-conspirator witnesses verified that Stokes was with Lawson in Lawson’s car near the cul-de-sac when Phillips’s body was soon discovered. And Stokes had discouraged those witnesses from driving into the cul-de-sac and did not seem surprised when they discovered Phillips’s dead body. Lawson then tried to pick up shell casings, shortly before Stokes left the group. And Stokes disappeared before police arrived to examine the body. Stokes’s cousin also testified he picked up Stokes near the cul-de-sac and dropped him off near Ruffin’s house.

¶ 33. When considering an objection to the weight of the evidence, we view the evidence in the light most favorable to the verdict. Bush, 895 So.2d at 844 (¶ 18). 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.” Id. (citation omitted).

¶ 34. Here, Stokes asks that we take the opposite approach and view the evidence in the light least favorable to the verdict. He urges us to be skeptical of both Dantzson’s motive for testifying against him, and the investigating officers’ reasons for pursuing him as a suspect, suggesting their impure motives preponderate against the verdict.

¶ 35. Considering Dantzson’s motive for confessing to the murder and testifying about his co-conspirator’s involvement, we find this issue was raised and explored at trial. And the weight and credibility of witness testimony was a matter for the jury to resolve—not this court. See Brown v. State, 796 So.2d 223, 227 (¶ 12) (Miss.2001) (citation omitted) (holding, in a conspiracy-to-commit-murder case, that issues of witness credibility and conflicting evidence were for the jury to resolve, not a reviewing court). As to Stokes’s other assertion—that the officers’ testimony was based on conjecture and unsupported beliefs and theories—he points to no objections that were made, let alone erroneously overruled. Thus, any evidentiary challenge to the officers’ testimony is waived. Foster, 639 So.2d at 1288-89.

¶ 36. Because the overwhelming weight of the evidence does not heavily preponderate against the verdict, we find Stokes’s motion for a new trial was properly denied.

¶ 37. We affirm Stokes’s conviction and sentence.

¶ 38. THE JUDGMENT OF THE PA-NOLA COUNTY CIRCUIT COURT OF CONVICTION OF CONSPIRACY TO COMMIT MURDER AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, FOLLOWED BY TEN YEARS’ POST-RELEASE SUPERVISION, AND TO PAY A FINE OF $1,000 AND $100 TO THE CRIME VICTIMS’ COMPENSATION FUND IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PANOLA COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ., CONCUR.

      . The indictment originally charged conspiracy to commit murder and capital murder, but the second charge was later reduced to first-degree murder.

      . After Stokes's trial, Dantzson pled guilty to manslaughter, as a reduced charge of murder. The conspiracy charge against him was remanded to the file.

      .While both charges against Ruffin were later remanded to the file, there is mention during Ruffin's direct examination that he pled guilty to "threatening a witness or allegedly threatening a witness,” for which he received house arrest. Lawson, the fourth charged co-conspirator, did not testily at Stokes’s trial. He later pled guilty to conspiracy to commit murder. The murder charge against him was remanded to the file.


author: ISHEE, J.,

text:
    Dolly E. GRAY, Appellant v. FRAMME LAW FIRM OF MS, P.C.; and Framme Law Firm, P.C., Appellees.
    No. 2012-CA-01429-COA.
    Court of Appeals of Mississippi.
    Nov. 19, 2013.
    Rehearing Denied April 1, 2014.
    Certiorari Denied July 3, 2014.

      Precious Martin, Suzanne Keys, attorneys for appellant.
    David C. Goff, Gulfport, Lawrence Matthew Quinlivan, attorneys for appellees.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In 2012, Dolly E. Gray filed suit against Gramme Law Firm of MS, P.C. and Framme Law Firm, P.C. (Framme) for legal malpractice. Gray asserted that Framme allowed the statute of limitations to run on her negligence claim against the City of Durant for certain damages suffered in her home during an electrical surge in 2008. At trial, the Holmes County Circuit Court granted Framme’s motion for a directed verdict regarding compensatory damages for repair or replacement of allegedly damaged items in the home, emotional distress damages, and punitive damages. The jury returned a verdict in favor of Gray for $4,308 — the cost of rewiring Gray’s home. Aggrieved, Gray appeals, claiming the circuit court erred by granting the directed verdict and allowing one of Framme’s witnesses to testify in support of the motion for a directed verdict. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Residents of Durant, Mississippi, receive their electrical services directly from the City. Gray, a Durant resident, testified that on December 4, 2008, she suffered a massive electrical surge in her home, causing several loud noises, the smell of electrical smoke throughout the home, and irregular electrical activity in the home’s electrical products. Accordingly, she contacted electrician Robert Teague.

¶ 3. Teague inspected Gray’s home on the evening in question and could not find a problem inside the house. After examining the electrical supply outside of the home, Teague informed Gray two wires bringing electricity into the home were malfunctioning, causing the electrical surges. Gray then contacted the City, who sent the city electrician, Tommy Fri-zell, for an inspection.

¶ 4. Frizell and his crew arrived the day after the incident and observed the faulty wires noted by Teague. They corrected the problem. Frizell and Gray then went through the home to inspect the electrical items for damage. At the time, Frizell located five or six damaged items. He instructed Gray to submit a list of those items to the city clerk.

¶ 5. Gray complied, and on December 15, 2008, she provided the city clerk a handwritten note that merely listed one computer, one photo printer, one microwave, and six surge protectors not working in her home. She signed and dated the note at the bottom and listed her telephone number.

¶ 6. On May 26, 2009, Gray submitted to the City a formal typed and signed letter wherein she summarized the events leading up to that date. She attached a second list of allegedly damages items, totaling seventy-six items with a full replacement value of $37,000. Gray testified that she arrived at this figure after contacting various sales centers and obtaining purchase prices for new products to replace the allegedly damaged items. She included several other attachments, such as Teag-ue’s service bills for inspection and repair to the wiring in the home and an article related to similar electrical incidents.

¶ 7. Thereafter, the City’s third-party administrator, Mississippi Municipal Service Company (MMSC), sent an adjuster, Terry Woods, to inspect Gray’s home and the allegedly damaged items. Woods reduced the list provided by Gray to fourteen inoperable items. In June 2009, MMSC sent a letter to Gray denying liability on behalf of the City and requesting that Gray present additional proof of her loss with respect to the replacement values listed in her damages report.

¶ 8. Gray then contacted a prepaid legal service (PPL) to which she had been paying $7.97 twice a month for some time. PPL provides a legal-insurance service to customers whereby clients may pay a certain amount of money per month in exchange for future legal services. PPL employs a tiered system, providing various future services to clients at corresponding monthly rates. Gray was enlisted on a T-1 level, providing her with basic services, such as unlimited telephone conversations with an attorney and legal letters written on her behalf. The tiered system graduates to level T-5, with attorneys filing suit and representing the client in the suit.

¶ 9. PPL assigned Gray a case number and an attorney — Steven Burt with Fram-me. Burt then contacted Gray and they discussed her issues. Gray sent Burt the paperwork and information she had retained until that point. Burt informed her he was authorized to write the City a letter on her behalf but that to sue the City would be significantly more money. It is disputed as to whether or not Gray indicated she was willing to spend the extra money to file a suit. Regardless, Burt mailed MMSC a demand letter on Gray’s behalf in August 2009 and requested that the City reinvestigate Gray’s claim. In the letter, Burt directed that all findings be mailed to Gray directly and provided her home address.

¶ 10. When Gray did not receive any further communications from MMSC, she wrote them a second letter in December 2008. On February 9, 2012, Gaynell Johnson, a claims representative with MMSC, responded to Gray’s letter. Therein, he told her that the one-year statute of limitations had run on her claim. However, he offered her a $8,000 settlement in good faith.

¶ 11. Gray immediately called PPL. PPL attorney Zora Frith calculated the statute of limitations. She determined that Gray’s May 2009 correspondence with MMSC had served as a notice of the claim pursuant to the Mississippi Tort Claims Act (MTCA). She also found that MMSC’s June 2009 letter denying the claim tolled the statute of limitations by almost a month. Ultimately, Frith decided that the statute of limitations would not have run until April 22, 2010. Therefore, she assigned Gray a T-5 referral attorney, Rod Nixon.

¶ 12. Nixon met with Gray for approximately ten minutes. He then improperly advised her that the statute of limitations had run on her MTCA claim and suggested that she settle with the City for the $8,000 previously offered. Unhappy with the determination, Gray contacted the member-resolution division of PPL. However, she also took Nixon’s advice and settled with the City.

¶ 13. She then filed suit on November 4, 2010, alleging attorney malpractice by Nixon and Framme, on behalf of Burt, and requesting compensatory and punitive damages. Nixon accepted responsibility for the mistake regarding the statute of limitations, and settled with Gray prior to the close of trial. Framme, however, continued to litigate the suit.

¶ 14. In May 2012, the trial began. Nixon, Johnson, Teague, and Gray testified first. Gray then called Burt as an adverse witness. She also called Lawrence H. Framme III, a partner in Fram-me, and James F. Noble III, who was tendered as an expert in attorney conduct. Gray and Teague were the only witnesses to testify to actual damages.

¶ 15. Teague could only testify regarding the cost of repair and rewiring the home. Gray testified as to the cost of the replacement value of the items she listed as being damaged. However, her testimony merely reflected that she called vendors and asked them what a new product would cost to replace the type of product that was damaged in the electrical surge. Her testimony did not take into account the value of the allegedly damaged items at the time of the electrical surge minus the value of the item after the electrical surge. Moreover, Gray testified that many of the items on her list were still in her house and still functioned, but functioned in a different way. She was not able to specifically address which items were completely unusable and which were merely somewhat damaged. No other witnesses testified regarding damages.

¶ 16. When Gray rested her case, Framme made a motion for a directed verdict. Framme asserted that Gray had failed to present a prima facie case of liability, emotional damages, punitive damages, and compensatory damages as to the cost of the allegedly damaged property. Before ruling, the circuit court allowed Framme to present Frizell and Woods as witnesses in support of the motion.

¶ 17. The circuit court determined that Gray had put forth a prima facie case of liability for a jury to review. Nonetheless, the circuit court granted Framme’s motion on all other grounds. The circuit court stated that even if the jury found Framme to be liable, her liability would amount to simple negligence at best. Since the standard for claiming emotional distress and punitive damages could not be met in Gray’s simple-negligence case, the circuit court granted Framme’s motion in part. Furthermore, the circuit court asserted that since Gray only testified as to the full replacement value of her property, as opposed to the value of the property at the time of the incident and thereafter, a pri-ma facie case for compensatory damages had only been met regarding the repair and rewiring of the home.

¶ 18. After the case was submitted to the jury, a verdict was returned in favor of Gray in the amount of $4,308. Gray now appeals.

DISCUSSION

¶ 19. The grant or denial of a motion for a directed verdict is reviewed de novo. Solanki v. Enin, 21 So.3d 552, 556 (¶ 8) (Miss.2009) (citation omitted). However, an abuse-of-discretion standard is employed when reviewing a circuit court’s decision to allow or prohibit the issue of punitive damages to be presented to the jury. Estate of Gibson ex rel. Gibson v. Magnolia Healthcare Inc., 91 So.3d 616, 632 (¶ 45) (Miss.2012) (citation omitted). We also use an abuse-of-discretion standard to review a circuit court’s decision to allow a witness to testify. Webb v. Braswell, 930 So.2d 387, 396-97 (¶ 15) (Miss.2006) (citation omitted).

I. Emotional-Distress Damages

¶ 20. Gray first asserts that the circuit judge erred in granting Framme’s motion for a directed verdict regarding emotional distress. Although not specifically pled before the circuit court, Gray asserts that her emotional-distress-damages claim is part of her compensatory-damages claim. Gray’s only evidence with regard to emotional distress stems from her assertions that she has problems sleeping, is fearful when she turns on lights in her home, and has a pre-ulcerous condition. No medical testimony was provided to support her assertions, and she does not claim any physical injury resulting from the incident itself.

¶ 21. Emotional-distress damages may be awarded when a plaintiff shows that the emotional distress was reasonably foreseeable and that the defendant’s conduct was “malicious, intentional[,] or outrageous.” Morgan v. Greenwaldt, 786 So.2d 1037,1044 (¶ 23) (Miss.2001) (citation omitted). Two lines of cases exist regarding claims of emotional distress when no physical injury exists. The Mississippi Supreme Court has stated the following:

It is undisputed that under Mississippi law, a plaintiff asserting a claim for mental anguish, whether as a result of simple negligence or an intentional tort, must always prove that the emotional distress was a reasonably foreseeable result of the defendant’s conduct. In cases of intentional infliction of emotional distress, where the defendant’s conduct was “malicious, intentional, or outrageous,” the plaintiff need present no further proof of physical injury. Where, as here, the defendant’s conduct amounts to simple negligence, ... the proof may solely consist of evidence of a mental injury without physical manifestation.

Adams v. U.S. Homecrafters Inc., 744 So.2d 736, 743 (¶ 21) (Miss.1999). However, the supreme court revisited the issue in American Bankers’ Insurance Company of Florida v. Wells, 819 So.2d 1196, 1208-09 (¶¶ 40-43) (Miss.2001). There, the supreme court determined that while it had not overruled the line of cases allowing for recovery of emotional-distress damages when there is no physical injury, that line of cases serves as the minority view. Id. at 1208 (¶ 41) (citation omitted). The supreme court then concluded that “[a] plaintiff therefore may not recover emotional[-]distress damages resulting from ordinary negligence, without proving some sort of physical manifestation of injury or demonstrable physical harm.” Id. at 1209 (¶ 48).

¶ 22. The supreme court later addressed the issue in University of Southern Mississippi v. Williams, 891 So.2d 160 (Miss.2004). The supreme court then stated that with regard to breach-of-contract actions, a plaintiff must show:

(1) that mental anguish was a foreseeable consequence of the particular breach of contract, and (2) that he or she actually suffered mental anguish. Such generalizations as “it made me feel bad[]” or “it upset me” are not sufficient. A plaintiff must show specific suffering during a specific time frame. These requirements are not different from the requirements to establish physical pain and suffering.

Id. at 178 (¶ 81). Although this is a legal-malpractice action and not a breach-of-contract action, we apply the same generalization standard and Gray must prove that her mental suffering was a foreseeable consequence of Framme’s actions and that she actually suffered mentally or emotionally. See id.

¶ 23. Here, Gray failed to provide any evidence of foreseeability. There is no testimony from any witness that Framme could have reasonably foreseen that its actions or inactions could have caused Gray’s current alleged emotional distress. Furthermore, and more importantly, Gray has not provided any evidence that she actually suffered emotional distress. The only applicable evidence in the record is her own testimony that she has trouble sleeping, is somewhat fearful to turn on lights, and may have a pre-ulcerous condition. However, no medical evidence was provided to support her assertions. Accordingly, we find this issue to be without merit.

II. Punitive Damages

¶ 24. Gray next asserts that the circuit court erred in dismissing her punitive-damages claim. “Punitive damages are appropriate only in cases where the plaintiff shows by clear and convincing evidence that the defendant acted with malice, gross negligence evidencing willful, wanton, or reckless disregard for the safety of others, or the commission of actual fraud.” Estate of Gibson, 91 So.3d at 629 (¶ 38) (citation omitted).

¶ 25. In its ruling, the circuit court opined that the extreme conduct required to allow for jury consideration of punitive damages was lacking. The circuit court found that “the actions of the defendant would only rise to simple negligence, if any.” We agree.

¶ 26. The jury found in favor of Gray with regard to Framme’s negligence. Even considering the jury’s determination that Framme acted negligently, the conduct simply does not rise to the level required for consideration of punitive damages. The supreme court has stated that “[pjunitive damages are awarded in the most egregious cases.” Id. Such is not the case here. We cannot find that the circuit court abused its discretion in prohibiting punitive damages from being considered. This issue is meritless.

III. Compensatory Damages

¶ 27. Gray next asserts that the circuit court erred by preventing the jury from considering compensatory damages outside of the home’s rewiring and repair needs. The supreme court has stated the following with regard to personal-property damage:

The general rule is that if there is any remaining value to the damaged property ..., then the measure of damages is the difference in value immediately before the casualty or loss and the value immediately after the damage or injury to the property. Of course, if the property is totally destroyed and rendered absolutely valueless in the accident or casualty, the damages would be the value of the property at the time of such destruction.

Harper v. Hudson, 418 So.2d 54, 57 (Miss.1982) (internal citation omitted). The supreme court has also clarified the plaintiffs burden with regard to documentary evidence of personal-property loss. See Thomas v. Global Boat Builders & Repairmen, Inc., 482 So.2d 1112 (Miss.1986) (distinguished on other grounds by Regency Nissan Inc. v. Jenkins, 678 So.2d 95, 101 (Miss.1995)). In Thomas, the supreme court noted the circuit court’s summary of the plaintiffs burden of proof as follows:

Whenever you come into the Court, you have to establish [whether the property is repairable and, if so, the cost of repair] to the other side before the jury can consider it. In this instance, there were no repairs and the burden was upon the [pjlaintiff at the time to show by competent proof that the [allegedly damaged item] was or was not repairable. If it were repairable, to show by competent proof, what items needed to be repaired as a result of the contact and what the costs of those items were. That was not offered and that was not done in this case. Given that[,] then the court has no alternative but to direct a verdict in this case ... in favor of the ... defendants.

Id. at 1114. Thereafter, the supreme court supported the circuit court’s judgment by stating:

When a plaintiff has available to him sources and means whereby damages may be calculated to a fair degree of certainty ... and he does not secure for trial such available proof, the circuit judge is perfectly correct in presuming if the plaintiff had any actual proof of damages he would have come forward with it. And, in such a case as this, the circuit judge was unquestionably correct in directing a verdict for the defendants.

Id. at 1117.

¶ 28. Like in Thomas, Gray provided no proof of repair costs. She merely testified as to the cost of replacing each item she alleged was damaged. The only other witnesses that testified regarding damages were Teague and Woods. We will address Gray’s arguments regarding Woods’s testimony later. Regardless, no one testified as to repair costs of the allegedly damaged items or the value of the items at the time of the incident. As stated by the circuit court, the measure of damages is the value of the property at the time of the incident versus the value of the property immediately after the incident. The circuit court explained:

After going back through the testimony of Ms. Gray, as well as the testimony of Mr. Teague, the only thing they testified to is what they — the values they show on the exhibits or what it will cost to replace the appliance, to purchase a new appliance.... If the value of the property is $150 at the time of the incident; and after the incident, if the value was $50, then the plaintiff is entitled to $100. And the only thing the jury has before it at this time is what it will cost to purchase a new appliance. And I think that’s what Ms. Gray testified to as well as Mr. Teague who basically stated that he just used the values that [were] given to him by people who sold these products.

¶ 29. We agree. Gray failed to provide an adequate showing of damages sufficient to present to a jury. This issue is without merit.

IV. Witness Testimony

¶ 30. Finally, Gray argues that the circuit court improperly allowed testimony from Woods in support of Framme’s motion for a directed verdict. We will only reverse a circuit court’s decision to allow expert testimony upon a showing of prejudice. Jones v. State, 918 So.2d 1220, 1223 (¶ 9) (Miss.2005) (citation omitted).

¶ 31. Here, the circuit court conducted an on-the-record Daubert examination of the witness prior to his testimony in the courtroom. Additionally, Woods’s deposition was taken before counsel for both parties prior to the trial, and Gray’s counsel had adequate time to prepare a cross-examination for the trial. Finally, and most importantly, Gray’s counsel made no objection to Woods testifying. It is well settled that counsel must make an objection at trial in order to preserve an issue for appeal. InTown Lessee Assocs. v. Howard, 67 So.3d 711, 718-19 (¶ 25) (Miss.2011) (citation omitted). This issue is without merit.

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

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

      . Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).


author: LEE, C.J.,

text:
    Tracy D. LOTT and Jennifer Avara-Lott, Appellants v. PRITCHETT CONSTRUCTION COMPANY, Appellee.
    No. 2013-CA-00328-COA.
    Court of Appeals of Mississippi.
    Dec. 3, 2013.
    Rehearing Denied March 18, 2014.
    Certiorari Denied June 26, 2014.

      Steven D. Slade, Meridian, attorney for appellants.
    John E. Howell, Meridian, attorney for appellee.
    Before LEE, C.J., MAXWELL and FAIR, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Pritchett Construction Company (Pritchett) filed a complaint in the Lauder-dale County County Court against Tracy and Jennifer Lott (the Lotts), alleging the Lotts were in default on an open account with Pritchett. Pritchett sought the balance of the account, or $11,912.96. The Lotts filed a joint motion to dismiss and for summary judgment. The county court dismissed Pritchett’s complaint with prejudice. Pritchett filed a motion to reconsider, which the county court granted. The county court set aside its judgment of dismissal with prejudice and allowed Pritchett to file an amended complaint. Pritchett subsequently filed an amended complaint, alleging breach of an oral contract. After a hearing on the matter, the county court entered judgment in Pritch-ett’s favor and ordered the Lotts to pay damages of $11,912.96 plus 8% interest.

¶ 2. The Lotts appealed to the Lauder-dale County Circuit Court, which affirmed the county court judge’s decision. The Lotts now appeal to this Court, alleging the following issues: (1) Mississippi Code Annotated section 85-7-181 (Rev.2011) constituted the exclusive remedy for Pritchett’s claim; and (2) the county court erred in reversing its 2009 dismissal of Pritchett’s original complaint. Finding no error, we affirm.

FACTS

¶ 3. The Lotts entered into a contract with Marc Dunlap of Premier Builders to construct their new home in Lauderdale County. Dunlap hired Pritchett as a subcontractor to supply concrete as needed. Construction began in 2004 and was completed in August 2005.

¶4. Due to cost overruns during construction, the Lotts opted to save money by not extending the concrete driveway to the roadway. The construction contract provided for $81,000 to pour a completed driveway. ' This figure later increased to $35,000. At one point Dunlap sprayed a red line on the ground to show how far the Lotts could afford to extend the driveway from the house. There was some discussion between Dunlap and the Lotts about whether to put gravel down until the Lotts could afford to finish paving the driveway.

¶ 5. According to Pritchett, he had a conversation with Tracy when Dunlap was out of town about completing the driveway. When Dunlap returned to town and the job site, he noticed the driveway had been completely framed and poured. Pritchett told Dunlap he had entered into a side agreement with the Lotts to finish their driveway, and the Lotts would pay Pritch-ett for the work when they were able. Dunlap testified Pritchett had made side agreements such as this one in similar situations where money was tight for the homeowner. Tracy denied entering into a side contract with Pritchett, but did admit to authorizing Pritchett to finish paving the driveway to the road.

STANDARD OF REVIEW

¶ 6. The Mississippi Supreme Court has stated the standard of review that we must follow when handling an appeal of a county court judgment:

The county court was the fact finder, and the circuit court, as well as this Court [or the Court of Appeals], are [sic] bound by the judgment of the county court if supported by substantial evidence and not manifestly wrong. Insofar as its findings of fact and conclusions of law are concerned, the judgment of a circuit or county court in a non-jury trial is entitled to the same deference on appeal as a chancery court decree. That is, it will be assumed the trial judge made all necessary findings of fact in favor of appellee, whether stated or not. Moreover, if the judgment of such court can be sustained for any reason, it must be affirmed, ... even [if] the trial judge based it upon the wrong legal reason.

Patel v. Telerent Leasing Corp., 574 So.2d 8, 6 (Miss.1990) (citations omitted).

DISCUSSION

I. SECTION 85-7-181

¶ 7. The Lotts contend the exclusive remedy for Pritchett to recover the funds for extending the driveway was to file a stop notice in accordance with section 85-7-181. Section 85-7-181 permits subcontractors who have not been paid by the contractor to file a notice requiring the owner to retain any funds it still holds that otherwise would be paid to the contractor. As previously stated, this statute was held unconstitutional by Noatex Corp. v. King Construction of Houston, LLC, 732 F.3d 479, at 484-86 (5th Cir.2013). Regardless, the county court found that the Lotts and Pritchett entered into a separate contract to complete the driveway; thus, the provisions of section 85-7-181 were inapplicable.

¶ 8. The county court relied upon the testimony and actions of the parties involved in determining an oral contract had been formed between the Lotts and Pritchett. The existence of an oral contract is a fact issue. Putt v. City of Corinth, 579 So.2d 534, 538 (Miss.1991). “The formation of a contract, either oral or written, requires (1) an offer, (2) acceptance of the offer, and (3) consideration.” Scott v. Magnolia Lady, Inc., 843 So.2d 94, 96 (¶ 9) (Miss.Ct.App.2003). In this instance, Tracy knew there was not enough money to complete the driveway, but instructed Pritchett to complete the driveway anyway. Pritchett testified he had an oral contract with the Lotts to complete the driveway. Dunlap further testified Pritchett had made similar agreements with other homeowners. The county court determined that previous conversations between the Lotts and Dunlap indicated the Lotts knew there was not enough money in the construction contract to extend the driveway all the way to the road. The circuit court could find no error by the county court in finding an oral contract existed between the Lotts and Pritchett, and we find the same. This issue is without merit.

¶ 9. We note that the Lotts also argue that Pritchett was required to possess a residential builder’s license to file a lawsuit. This argument was raised in the Lotts’ motion to dismiss, which the county court initially granted. After the county court reconsidered its ruling and allowed Pritchett to amend the complaint, this argument was never readdressed by either party. Regardless, the applicable statute, Mississippi Code Annotated section 73-59-1(b) (Rev.2012), defines a residential builder as one “who constructs a building or structure for sale for use by another as a residence ... when the cost of the undertaking exceeds Fifty Thousand Dollars ($50,000.00).” There was no proof this statute applied to Pritchett.

II. COUNTY COURT ERROR

¶ 10. The Lotts contend the county court erred in reversing its dismissal of Pritchett’s original complaint. The Lotts specifically argue the statute of limitations had expired; thus, the county court should not have allowed Pritchett to amend the complaint. However, the statute of limitations for both open-account actions and oral-contract actions is three years. Miss. Code Ann. § 15-1-29 (Rev.2012). Pritch-ett filed his initial complaint on October 23, 2007, well within the three-year statute of limitations. The county court allowed Pritchett to amend his complaint pursuant to Mississippi Rule of Civil Procedure 15. According to Rule 15(c), “[wjhenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.” The decision to grant or deny a motion to amend the complaint is within the lower court’s discretion. Webb v. Braswell, 930 So.2d 387, 392 (¶ 8) (Miss.2006). We can find no abuse of discretion by the lower court in allowing Pritchett to amend the complaint.

¶ 11. The Lotts also contend Pritchett failed to respond to discovery requests. The Lotts had filed a motion to compel, claiming Pritchett had refused to schedule a deposition date and produce certain requested documents. The trial court denied this motion, finding discovery had “long since expired and [the Lotts] should not be allowed at this late date to attempt [a] deposition of [Pritchett], when a year has passed since [the Lotts’] first request ... and nothing was ever presented to the [c]ourt to compel said cooperation and to set said deposition.” Our standard of review regarding a lower court’s decision to grant or deny a motion to compel discovery is abuse of discretion. Morton v. City of Shelby, 984 So.2d 323, 329 (¶ 11) (Miss.Ct.App.2007). In this instance, we can find no abuse of discretion by the county court.

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

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

      . This statute was recently held unconstitutional by Noatex Corp. v. King Construction of Houston, LLC, 732 F.3d 479, 484-86 (5th Cir. 2013).


text:
    Antonio CANNON, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01551-COA.
    Court of Appeals of Mississippi.
    Dec. 10, 2013.
    Rehearing Denied April 29, 2014.
    Certiorari Dismissed July 3, 2014.

      Azki Shah, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE and CARLTON, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In June 2012, Antonio Cannon was convicted by a jury in the Bolivar County Circuit Court of sale of cocaine and marijuana within 1,500 feet of a public park and of child endangerment. He was sentenced as a habitual offender for the sale of cocaine "within 1,500 feet of a public park to thirty years and for the sale of marijuana within 1,500 feet of a public park to three years, and as a non-habitual offender for child endangerment to ten years. The sentences were ordered to run concurrently, all in the custody of the Mississippi Department of Corrections (MDOC). On appeal, Cannon asserts that the circuit court erred in its failure to properly handle his Batson challenge against the State’s peremptory strikes during voir dire; the evidence was insufficient to sustain his convictions; and the verdict was against the overwhelming weight of the evidence. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. In August 2010, Jeffrey Boyd, a confidential informant, was wired by authorities with a hidden video camera and sent to Cannon’s mobile home to purchase illegal drugs. The home was located within 1,500 feet of Bear Pen Park — a public park in Cleveland, Mississippi. Cannon was at the home with his girlfriend, Jessica Twomey, and her four-year-old daughter.

¶ 3. Boyd entered the home and asked Cannon for cocaine and marijuana. The videotape from Boyd’s hidden video camera showed Cannon exchanging cocaine and marijuana with Boyd for $60. Twom-ey and her daughter were present in the room when the exchange took place.

¶ 4. Cannon and Twomey were later arrested, and the substances Cannon had given to Boyd were retrieved and sent to a crime lab. The crime-lab expert who analyzed the substances testified that they were positively identified as cocaine and marijuana.

¶ 5. Prior to the trial, the State and the defense were each granted six peremptory strikes during voir dire. The State’s strikes included six African American jurors. The defense’s strikes included five Caucasian jurors and one African American juror. The defense presented the circuit court with a Batson challenge, claiming the State had stricken the six African American jurors for racially biased reasons. The circuit court responded by noting that the majority of potential jurors in the jury pool were African American. The circuit court also pointed out that the defense had utilized five of its six strikes against Caucasian jurors. The circuit court then ruled against the defense in its Batson challenge, and the trial proceeded.

¶ 6. At trial, the State presented three witnesses, including Boyd, and introduced numerous exhibits, including the videotape of the exchange, a photograph of the home, and photographs of the proximity of the home to Bear Pen Park. The State then rested its case-in-chief.

¶ 7. The defense moved for a directed verdict, which was denied. Cannon then indicated that he wished to waive his right to testify, and the defense rested without presenting any witnesses or evidence. The State and the defense made closing arguments, and the case was presented to the jury for deliberations.

¶ 8. The jury returned a guilty verdict on all counts. The circuit court then sentenced Cannon. The defense did not file a motion for a judgment notwithstanding the verdict (JNOV) or a motion for a new trial. Cannon now appeals.

STANDARD OF REVIEW

¶ 9. A circuit court’s ruling on a Batson challenge “will not be overturned unless the record indicates the ruling was clearly erroneous or against the overwhelming weight of the evidence.” States v. State, 88 So.3d 749, 754 (¶ 18) (Miss.2012) (citation omitted). With regard to issues relating to sufficiency of the evidence, the supreme court has stated that in considering the denial of a motion for a directed verdict, “the 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.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). When reviewing challenges 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.” Vaughn v. State, 926 So.2d 269, 271 (¶ 4) (Miss.Ct.App.2006) (quoting Bush, 895 So.2d at 844 (¶ 18)).

DISCUSSION

I. Batson Challenge

¶ 10. In order to proceed with a Batson challenge, a defendant must make a prima facie showing that the State was motivated by race in its strikes. After proving a prima facie case of racially motivated strikes, “the burden shifts to the State to articulate a race-neutral reason for excluding [the] particular juror[s].” States, 88 So.3d at 754 (¶ 19) (citation omitted). Here, Cannon asserts that the circuit court erred in its determination that Cannon did not present a prima facie case that the State’s strikes were racially biased.

¶ 11. In order to establish a pri-ma facie case, the defendant must show “(1) [he is a member] of a cognizable class, such as a racial group; (2) the prosecution used peremptory strikes to remove venire members in that class; and (3) the facts and circumstances give rise to an inference that the prosecution used peremptory strikes to purposefully remove individuals of that class.” Id. at 755 (¶ 21) (citing Batson, 476 U.S. at 96, 106 S.Ct. at 1712). The Mississippi Supreme Court has held that “[w]hen determining whether a defendant has established a prima facie case of discrimination, we must consider all relevant circumstances.” Id. at (¶ 22) (citations omitted). Furthermore, “a defendant can establish a prima facie case by demonstrating that the percentage of the State’s peremptory strikes exercised on members of the protected class was significantly higher than the percentage of members of the protected class in the venire.” Id.

¶ 12. In States, the supreme court was faced with a Batson challenge, but was not provided specific information in the record with regard to the percentage of African American jurors in the venire. There, the supreme court quoted Birkhead v. State, 57 So.3d 1223, 1230 (¶ 25) (Miss.2011) in stating: “We cannot override the trial court when this Court does not even know the racial makeup of the venire or the jury.” States, 88 So.3d at 755 (¶ 24). Therefore, the supreme court in States found that the record was insufficient to overturn the circuit court’s decision. In doing so, the supreme court stated:

Likewise, we decline to reverse the trial judge’s decision in this case when we do not know the race and gender of the venire, the race and gender of the final jury, or the race and gender of the other potential jurors struck by the State. The presumption is in favor of the trial court, and the burden is on the appellant to demonstrate reversible error.

Id. at (¶ 25).

¶ 13. The case at hand presents similar facts. The record is lacking as to the race and gender of the venire, the final jury, and the other potential jurors the State eliminated. The only information we have before us regarding the racial characteristic of the jury is seen in the circuit court’s notation that Caucasian jurors constituted the minority of the jury. We cannot find that the circuit court committed reversible error when we do not have before us a proper record showing the makeup of the venire, the jury, and the stricken jurors. This issue is without merit.

II. Sufficiency of the Evidence

¶ 14. Cannon next argues the evidence was insufficient to support his convictions. While making a motion for a directed verdict, Cannon’s defense counsel specifically argued that the evidence presented by the State was insufficient to support a finding that the sale of cocaine and marijuana was within 1,500 feet of Bear Pen Park. However, Cannon’s defense counsel failed to make any reference to Cannon’s argument on appeal that the evidence did not support a finding that Cannon was Twomey’s daughter’s “caretaker” under the statute of child endangerment. As such, Cannon’s argument is waived with respect to the child-endangerment conviction. See King v. State, 897 So.2d 981, 994 (¶39) (Miss.Ct.App.2004) (holding motions for a directed verdict must be made with specificity and motions generally challenging the sufficiency of the evidence without specific grounds serve as a procedural bar for issues on appeal grounded in claims of insufficient evidence).

¶ 15. Hence, Cannon’s only valid argument on appeal with regard to sufficiency of the evidence is his defense counsel’s claim that the State failed to prove that the sale of cocaine and marijuana occurred within 1,500 feet of a public park. At trial, the State presented photographs showing the proximity of the home to Bear Pen Park, and presented witnesses who testified regarding the home’s nearness to the park. The defense failed to present any evidence or testimony contradicting this evidence. Accordingly, we find that any rational trier of fact could have found that the sale of cocaine and marijuana occurred within 1,500 feet of Bear Pen Park. This issue is without merit.

III. Weight of the Evidence

¶ 16. Finally, Cannon challenges the weight of the evidence with respect to his convictions. However, we have held that “the failure to file a motion for a new trial bars raising this issue on appeal. There are certain errors that must be raised in front of the circuit judge in a motion for a new trial, including challenges to the weight of the evidence.” Davis v. State, 75 So.3d 569, 572 (¶ 14) (Miss.Ct.App.2011) (citations omitted). Cannon did not file a motion for a new trial prior to raising this issue on appeal. Thus, this issue is procedurally barred.

¶ 17. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, SALE OF COCAINE WITHIN 1,500 FEET OF A PUBLIC PARK, COUNT II, SALE OF MARIJUANA WITHIN 1,500 FEET OF A PUBLIC PARK, AND COUNT III, CHILD ENDANGERMENT, AND SENTENCE AS A HABITUAL OFFENDER TO THIRTY YEARS FOR COUNT I, AS A HABITUAL OFFENDER TO THREE YEARS FOR COUNT II, AND AS A NON-HABITUAL OFFENDER TO TEN YEARS FOR COUNT III, WITH THE SENTENCES TO RUN CONCURRENTLY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

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

      . Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (holding it unconstitutional for either party to strike potential jurors for racially biased purposes)