author: LAMAR, Justice,

text:
    Edgar Earl PATTON a/k/a Edgar Patton a/k/a M.E. Edgar Patten v. STATE of Mississippi.
    No. 2011-KP-00106-SCT.
    Supreme Court of Mississippi.
    Dec. 13, 2012.
    Rehearing Denied March 28, 2013.

      Edgar Earl Patton, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before DICKINSON, P.J., LAMAR and KITCHENS, JJ.
   LAMAR, Justice,

for the Court:

¶ 1. In this criminal pro se appeal, we address several issues raised by Edgar Earl Patton, who was convicted of the crime of false pretense under Mississippi Code Section 97-19-39 (one count) and fraudulent use of identity under Mississippi Code Section 97-19-85 (four counts) in the Circuit Court of Winston County. Specifically, Patton argues the following assigned errors require reversal of his convictions: 1) the circuit court judge engaged in improper ex parte communications; 2) Patton was denied his Sixth-Amendment right to counsel at all critical phases; 3) the circuit court erred in denying Patton’s motion to recuse Judge Vollor; 4) the circuit court erred by allowing a substantive amendment to the indictment; 5) Patton was denied the right to compulsory service of process; 6) Patton’s Fourth-Amendment protection against unlawful search and seizure was violated; 7) the circuit court erred by violating Uniform Circuit and County Court Rule 1.11; 8) the circuit court judge’s inquiry into Patton’s educational background for purposes of determining his ability to represent himself was an improper discovery tool that bene-fitted the State and violated his Fifth-Amendment right against self-incrimination; 9) the circuit court erred by denying Patton’s motion for directed verdict; 10) jurisdiction was improper and venue was not established; 11) the jury was improperly instructed; and 12) the indictment was legally insufficient and defective. Finding no reversible error, we affirm Patton’s convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 4, 2009, Patton appeared in the Circuit Court of Winston County, acting as an attorney for Ashley Dixon, even though Patton is not and has never been licensed to practice law. Patton filed a motion for discovery while acting as Dixon’s attorney on May 4, signing his name as M.E. (Edgar) Patten. Michael Rias also was arraigned in circuit court that day. Rias was in need of an attorney, saw Patton, and asked Patton if he was an attorney and how much Patton would charge to represent him. Patton represented to Rias, while they were still in the Circuit Court of Winston County, that he was an attorney and that he would charge $5,000 to take Rias’s case. Rias then put Patton in touch with Rias’s mother, Willie Mae Robinson, who was to pay Patton’s bill. Thereafter, Patton called Robinson and informed her that he was the attorney her son wanted to represent him. Patton informed Robinson that he would charge a retainer of $3,000 and would require $400 up-front toward that amount. Patton also Informed Robinson that he would charge $150 an hour in addition to his retainer. Patton faxed a contract to Robinson reciting those terms, which she signed and faxed back to him. Robinson also sent the $400 up-front payment to Patton via mon-eygram.

¶ 3. Patton then began acting as Rias’s attorney. A few days later, Patton made an initial phone call to Mike Howie, an assistant district attorney in the Fifth Circuit Court District, informing Howie that Patton had been retained by Rias and inquiring as to whether Rias might be able to get a better plea deal. On May 18, 2009, Patton again appeared in the Circuit Court of Winston County acting as an attorney, this time on behalf of Rias. How-ie and Patton discussed Rias’s case, and Patton eventually informed Howie that his client would accept a plea bargain. Patton then prepared a petition to plead guilty on behalf of Rias, representing that Patton was Rias’s attorney and additionally representing a specific Mississippi Bar Number as his.

¶ 4. On October 8, 2009, Patton filed another motion on behalf of Dixon, again signing his name as M.E. (Edgar) Patten and again representing the same number as his. On November 16, 2009, Patton filed a motion to dismiss the case against Dixon for alleged tampering with the grand jury, again signing his name as M.E. (Edgar) Patten and giving the same bar number as his. After Patton filed his November 16, 2009, motion, Howie became suspicious and began looking into whether Patton actually was a member of the Mississippi Bar. Howie discovered that Patton was not a member of the Bar and that Patton had been using another attorney’s name and a second attorney’s bar number to file pleadings. Howie then contacted Randy Thomas, the Sheriff of Winston County, to inform him of the situation and ask him to determine Patton’s actual identity.

¶ 5. Patton was indicted by the grand jury on one count of violating Mississippi Code Section 97-19-39 (obtaining valuable thing with intent to defraud), and four counts of violating Mississippi Code Section 97-19-85 (fraudulent use of identifying information to obtain a thing of value). Specifically, Count I of the indictment charged that Patton fraudulently had obtained money in excess of $500 from Willie Robinson in Winston County on or about or between May 1, 2009, and May 18, 2009. Counts II through IV of the indictment charged that Patton fraudulently had used another’s identifying information to obtain a thing of value in Winston County on or about May 4, May 18, October 8, and October 16, 2009.

¶ 6. Patton was declared indigent and was appointed a public defender. Austin Vollor initially was appointed to represent Patton, but Vollor represented him only at a preliminary hearing. Judge Joseph H. Loper and Judge Clarence E. Morgan III recused themselves from Patton’s trial on the ground that they were potential witnesses in the prosecution of the case, as the charges against Patton stemmed from his appearances in court before Judge Loper and Judge Morgan. Judge Loper informed this Court of the recusals by letter, and also requested that we appoint a substitute judge in the matter. Judge Frank G. Vollor was appointed as special judge to preside over the proceedings.

¶ 7. On July 19, 2010, a status hearing was held before Judge Vollor. Patton indicated he wanted to represent himself, that he had received and understood the indictment, and he declined to enter a plea. An examination under Rule 8.05 of the Uniform Rules of Circuit and County Court Practice was scheduled to determine whether Patton could proceed pro se. As no court reporter was present at the status conference, all motions were scheduled to be heard at the next hearing. Judge Vol-lor also appointed Steve Wright as standby counsel for Patton.

¶ 8. On September 24, 2010, a pretrial hearing was held before Judge Vollor then District Attorney. Forrest Allgood appeared on behalf of the State, Patton appeared pro se, and Richard Carter appeared as Patton’s new standby attorney. Carter remained present and available to Patton at all times during the September 24 hearing. At the beginning of the hearing, Judge Vollor examined Patton regarding his decision to proceed pro se in order to make a determination as to whether Patton knowingly and voluntarily had waived his right to counsel, in accordance with Rule 8.05. To make a Rule 8.05 determination, Judge Vollor asked Patton a series of questions concerning his education, whether he was seeing a mental-health professional, his current medicines, and whether he had been involved in a trial or watched the procedure of a trial. While Patton answered some of the circuit court’s questions, he refused to answer several questions related to his education, stating that he wished to exercise his Fifth-Amendment right against self-incrimination. Judge Vollor ultimately found that Patton was competent to represent himself.

¶ 9. After the Rule 8.05 determination, the circuit court heard pretrial motions, beginning with Patton’s motion to recuse Judge Vollor. Patton argued that Judge Vollor did not give Patton a fair and impartial hearing on July 19, 2010, and that Judge Vollor had knowledge of material factual information such that Patton anticipated calling Judge Vollor as a witness. Patton also argued that Judge Vollor had communications regarding the case with his nephew, Austin Vollor, and this Court. Judge Vollor clearly stated on the record that any communications he had regarding the case were for the purposes of determining whether he could take the case and did not go to the merits of the matter; therefore, the circuit court overruled Patton’s motion to recuse.

¶ 10. Patton next moved to quash the indictment and to dismiss for want of “personal territory and subject matter jurisdiction.” Patton argued that the State had not established jurisdiction in this matter and had the burden to prove jurisdiction once challenged. When questioned, Patton stated that he was referring to “the juris— subject matter. Over the subject, over the person and the territory.” The circuit court found that it had subject-matter jurisdiction over criminal matters and further found that all the alleged acts had occurred in Winston County; therefore, Patton’s motion to dismiss on subject-matter and territorial jurisdiction was denied. Relatedly, Patton also moved to quash the indictment, arguing that the circuit court was not allowed to look beyond the indictment for personal territory and subject-matter jurisdiction. The State argued that Patton could point to no infirmity in the indictment, as the indictment laid out the elements of the charges and included the information required. The circuit court overruled the motion to quash the indictment and set a trial date.

¶ 11. Prior to trial, a status conference was held regarding the subpoena list Patton had served on the clerk of court. Carter assisted Patton during this hearing. Patton requested subpoenas for approximately twenty people. Judge Vollor granted more than half of Patton’s requests for subpoenas, including subpoenas for District Attorney Doug Evans and Michael Rias.

¶ 12. A jury trial began November 29, 2010. Following voir dire, Evans appeared before the circuit court under subpoena and stated that, while he didn’t mind being present if necessary, he had “absolutely nothing to do with this case” and had not seen Patton before that day. Judge Vollor asked Patton what reason he had for Evans being present; however, Patton refused to disclose why he wished to call Evans as a witness, stating that he did not wish to divulge his trial strategy at that time. Because Patton could not articulate a colorable need for calling Evans as a witness, the circuit court released Evans from his subpoena.

¶ 13. During trial, the State called Rias to describe his encounters with Patton that had occurred at the Winston County Courthouse. Rias testified that he had hired Patton to take his case for $5,000 and that Patton had told him he worked for Holland & Patton in Jackson, Mississippi. Rias also identified a petition that Patton, acting as his attorney, had prepared for Rias to enter a plea of guilty. Rias identified Patton’s full name, signature, and the Mississippi Bar number on the petition. Next, the State called Robinson, Rias’s mother. Robinson testified that Patton had faxed her a representation contract, which she had signed and sent back to him. Robinson also testified that she had sent Patton a moneygram in the amount of $400 to retain Patton and had agreed ultimately to pay Patton a $3,000 “retainer,” plus attorney’s fees of $150 per hour.

¶ 14. Kim Ming, the Winston County Circuit Court clerk, was called to testify regarding pleadings that Patton had filed under false pretenses. Ming testified that Patton had filed several pleadings in the Circuit Court of Winston County using another person’s Mississippi bar number, including two documents on behalf of Ashley Dixon on November 16, a petition to plead guilty on behalf of Rias on March 18, 2010, a motion for discovery on May 4, and a motion to compel discovery on October 13, 2009.

¶ 15. After the State concluded its case, the State moved to amend the indictment. Specifically, the State moved to include attempted felony false pretense in Count I, in light of Robinson’s testimony that she had paid Patton only $400. The State argued that it was allowed to proceed on an attempt charge when the evidence did not show actual commission of the crime charged; Patton, through Carter, argued that the amendment was substantive and should have been made before trial. The State also moved to amend the dates alleged in Counts IV and V, as the dates charged in the indictment were October 8 and October 16, but the testimony showed that Patton actually had filed the pleadings at issue on October 13 and November 16. Patton again argued, through Carter, that the amendments were to substance and should not be allowed. The circuit court found that the State’s requested amendments were of form, not substance, and did not prejudice the defense; therefore, the circuit court granted the State’s motion to amend the indictment as to Counts I, IV, and V.

¶ 16. Patton, through Carter, then moved for a directed verdict as to Count I. Carter argued that the State had failed grossly to demonstrate the monetary requirement of $500 or more, as Robinson had paid only $400 through a moneygram. Carter also argued that the transactions between Patton and Robinson, as well as these between Patton and Rias, had occurred outside of Winston County. The circuit court denied the motion for directed verdict as to Count I, reasoning that the State had proven that Patton had obtained a signature of a person to a written instrument with a value of more than $500, because the contract Robinson signed was for an amount of $3,000. Regarding Counts II through V, Carter argued the State had not shown any evidence that Patton had received anything of value on the dates listed on the indictments, because the evidence showed he had filed pleadings or appeared in court on those days only in an effort to help individuals, not to obtain money. The State argued that the evidence showed Patton had used another person’s bar number to obtain the services of the court, which were things of value. The circuit court also denied the motion for directed verdict as to Counts II through IV, finding that Patton had used another person’s bar number to proceed in that court.

¶ 17. After the motions for directed verdict were denied, Patton proceeded with his defense. Patton called several witnesses and questioned them himself. Patton eventually tried to call Rias back to the stand, but Rias had been sent back to the Carroll County Correctional Facility. Although the circuit court made clear that Rias would be brought back if Patton wished to question him further, the parties stipulated to certain facts regarding Rias’s prior testimony, and Carter informed the circuit court that it would not be necessary to have Rias returned to court. After the stipulation was read into the record, Patton rested.

¶ 18. After the jury was excused for the night, Patton renewed his motion for directed verdict, again arguing that the State had failed to prove all the essential elements of each count, specifically that Patton had received $500, and that venue was not proven. The circuit court again denied the motion for directed verdict, finding that the contract was for an amount in excess of $500, and that the State had shown that the “essential acts” alleged in the indictment had been committed in Winston County.

¶ 19. Patton was found guilty on all counts. After sentencing, the circuit court addressed several motions Patton had filed, including a motion for a new trial, or in the alternative, a judgment notwithstanding the verdict. All of Patton’s motions were denied, and Judge Vollor signed the sentencing orders.

¶ 20. Patton, pro se, appeals his convictions, raising twelve assignments of error. Patton alleges that his trial was “replete with numerous structural errors,” and asks us to vacate, reverse, and render, or to reverse and remand the judgment of the circuit court. Finding no error, we affirm his convictions and sentences.

DISCUSSION

I. WHETHER JURISDICTION AND VENUE WERE ESTABLISHED.

¶ 21. Patton argues that the trial court deprived him of his “constitutional rights” by “not requiring the prosecution to prove jurisdiction on the record when challenged by Patton.” However, Patton does not point to any law or facts that would support his allegation that jurisdiction was not proper in the circuit court. Rather, Patton merely cites numerous cases for the proposition that proof of jurisdiction must appear on the record and judgments entered when a court did not have jurisdiction are void ab initio.

¶ 22. Mississippi Rule of Appellate Procedure 28(a)(l)(6) requires an appellant to include in his argument “the contentions of appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.” We have clearly stated many times that “[ijssues cannot be decided based on assertions from the briefs alone. The issues must be supported and proved by the record.” Indeed, “supporting the argument of his issues with reasons and authorities is part of an appellant’s burden on appeal.” We also have held that, “ ‘[i]n the absence of meaningful argument and citation of authority, this Court generally will not consider the assignment of error.’ ” In this case, Patton provides no meaningful argument or support of his claim of error on this ground, other than his recitation of the general law on jurisdiction. Therefore, we will not consider this assignment of error.

II. WHETHER THE INDICTMENT WAS FATALLY DEFECTIVE.

¶ 23. At trial, Patton argued that the indictment should be dismissed “because a judge should not look beyond the indictment at the evidence, and a charge against the Defendant should be dismissed for want of personal jurisdiction and subject matter jurisdiction.” Patton now argues that the indictment was fatally defective because it was “vague,” “ambiguous,” and “misleading.” Specifically, Patton argues that Count I of the indictment is misleading because he “was convicted of a felony” for obtaining more than $500 under false pretenses under Mississippi Code Section 97-19-39(2) and that the evidence showed Robinson sent Patton only $400. However, Patton was not “convicted of a felony” for obtaining a thing worth more than $500 under false pretenses. Patton was convicted of attempting to obtain a thing worth more than $500 under false pretenses; therefore, this argument has no merit.

¶ 24. Patton further argues that Counts II through V of the indictment “leaves [sic] the reader baffled and not fact specific.” Without specificity, Patton states only that the indictment “did not inform Patton of the nature and cause of the accusation” and that “a trained legal eye would have spotted the numerous deficiencies.” Therefore, Patton argues the circuit court erred in overruling his motion to dismiss.

¶ 25. Because Patton argues different grounds on appeal than those argued at the trial court, we find this issue is procedurally barred. We also decline to consider this issue due to Patton’s failure to make a meaningful argument supported with adequate citation of authority.

III.WHETHER PATTON’S SIXTH-AMENDMENT RIGHT TO COUNSEL WAS FULFILLED AT ALL CRITICAL PHASES.

¶ 26. Patton did not raise an issue of inadequate representation before the trial court, nor has Patton alleged that he requested counsel at some point and was denied. On appeal, Patton argues his right to counsel was violated during “every critical stage” of the proceedings, but identifies no specific critical stage at which he was without adequate counsel. In his reply brief, Patton argues for the first time that he was denied his Sixth Amendment right to counsel during a “preliminary hearing” and during a “status hearing.” However, Patton does not identify the dates these “critical stages” occurred and does not include any citations to the record to support his assignment of error on this issue.

¶ 27. Again, Patton raises an issue for the first time on appeal and fails to support it with any meaningful argument or citation to the record. Therefore, we decline to entertain this assignment of error.

IV. WHETHER PATTON’S FIFTH-AMENDMENT RIGHTS WERE VIOLATED BY THE CIRCUIT COURT’S RULE 8.05 EXAMINATION.

¶28. Patton argues that Judge Vollor improperly conducted discovery for the State and violated Patton’s Fifth-Amendment constitutional right against self-incrimination while questioning him on the record, in accordance to the mandates of Rule 8.05, in order to determine whether he knowingly and voluntarily waived his Sixth-Amendment right to counsel. Specifically, Patton argues Judge Vollor’s questions about his educational background coerced him into a confession, again arguing that Judge Vollor was biased against him. Patton includes no citations to the record or authority to support his claim that questions related to his educational background were unconstitutional. Therefore, we decline to address this assignment of error.

V. WHETHER IMPROPER EX PARTE COMMUNICATIONS OCCURRED AND WHETHER THE TRIAL COURT ERRED IN DENYING PATTON’S MOTION FOR RE-CUSAL.

¶ 29. Although Patton alleges throughout his assignments of error that Judge Vollor was biased against him, Patton raises two specific, related assignments of error regarding the impartiality of Judge Vollor. Patton first argues that the circuit court committed “structural error” by allowing “earwigging,” thus depriving Patton of his constitutional right to an impartial judge and jury. Patton additionally argues that Judge Vollor erred in denying Patton’s motion to recuse because Judge Vollor was biased against him, thus depriving Patton of his constitutional right to an impartial judge. As these two issues both address the impartiality of Judge Vollor and the denied motion to recuse, we discuss them together.

A. Standard of Review

¶ 80. A judge’s determination of recusal is reviewed through the lens of an abuse-of-diseretion standard. “This Court applies an objective standard when deciding whether a judge should have disqualified himself.” “On appeal, a trial judge is presumed to be both qualified and unbiased, and this presumption may only be overcome by evidence which produces a reasonable doubt about the validity of the presumption.”

B. Ex Parte Communication

¶ 31. Patton argues that Judge Vollor engaged in improper ex parte communications in violation of Rule 1.10 of the Uniform Rules of Circuit Court and County Court, which Patton argues rendered the trial a “structural error” and denied Patton a fair trial. Patton inartfully argues that Judge Vollor had improper personal knowledge of the disputed facts of the case as a result of “earwigging” and therefore should have recused himself under Canon 3(E)(1)(a) of the Code of Judicial Ethics. Specifically, Patton takes issue with a letter written by Judge Joseph H. Loper Jr., which transmitted a recusal order signed by Judge Loper and Judge Morgan to this Court and requested that the matter be presented to Chief Justice William L. Waller so that a substitute judge could be appointed. Patton also takes issue with communications between Judge Vollor and this Court regarding whether he would take the case, as well as communications between Judge Vollor and his nephew, Austin Vollor, regarding whether Austin had represented Patton in his capacity as public defender.

¶ 32. Rule 1.10 of the Uniform Rules of Circuit and County Court reads as follows:

No person shall undertake to discuss with or in the presence or hearing of the judge the law or alleged facts of any case then pending in the court or likely to be instituted therein, except in the orderly progress of the trial, and arguments or briefs connected therewith; nor attempt in any manner, except as stated above, to influence the decision of the judge in any such matter.

URCCC 1.10 (emphasis added). Canon 3(E)(1)(a) instructs that judges should disqualify themselves if they have “personal knowledge of disputed evidentiary facts concerning the proceeding.” Rule 1.10 does not prohibit all communication regarding a case in the presence of a judge; rather, the rule expressly prohibits communication related to the law or alleged facts of a case. Likewise, the Code of Judicial Conduct requires recusal only when a judge had personal knowledge of disputed evidentiary facts related to a case, not personal knowledge of all case-related facts. As Judge Vollor noted, a judge must talk about the basic facts of the case to decide if he can take it, make administrative decisions, and simply know when to be in court.

¶ 33. The record reflects that, pretrial, Judge Vollor read the case flies, read the indictments, spoke with this Court concerning his appointment, and spoke with his nephew as to whether Austin Vollor had been involved in Patton’s case. Judge Vollor also made clear that his communication pretrial was for administrative purposes only, and he was not discussing the merits of the case. We find that these communications do not violate Rule 1.10 and were not improper. As for Judge Loper’s letter, it merely transmitted a re-cusal order signed by Judge Loper and Judge Morgan to the Clerk of this Court and requested this Court to appoint a special judge. The letter does not mention Judge Vollor. Therefore, we find that Patton has made no showing that Judge Vollor engaged in any improper ex parte communications or “earwigging,” or that he had any personal knowledge of the disputed facts of Patton’s case prior to trial. This issue is without merit.

C. Motion for Recusal

¶ 34. Patton relatedly argues that the circuit court erred in denying his motion for recusal of Judge Vollor under Rule 1.15 because Judge Vollor was biased against him. Specifically, Patton claims that Judge Vollor should have recused himself because of his relation to Austin Vollor, the public defender briefly appointed to Patton’s case, and appears to argue again that Judge Vollor engaged in a conspiracy to obtain knowledge of Patton’s case through communication with Austin Vollor.

? 35. The Code of Judicial Conduct provides, “[a] judge should disqualify himself in a proceeding where his impartiality might be reasonably questioned by a reasonable person knowing all the circumstances ....” The Code additionally explains that such circumstances include when the judge had a “personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” Patton has pointed to nothing in the record to support his claim that Judge Vollor’s impartiality should be questioned or that Judge Vollor was prejudiced against Patton. We have said that, “absent some showing of actual prejudice or bias, there was no error” in a judge presiding over a trial. Therefore, as Patton has made absolutely no showing of actual prejudice or bias on the part of Judge Vollor, we find that Judge Vollor did not abuse his discretion in denying Patton’s motion for recusal. This issue is without merit.

VI. WHETHER PATTON’S FOURTH-AMENDMENT RIGHT TO BE FREE OF UNREASONABLE SEARCH AND SEIZURE WAS VIOLATED.

¶ 86. Patton did not raise a Fourth-Amendment claim before the circuit court, which procedurally bars this issue from our review. Therefore, we do not consider this assignment of error.

VII. WHETHER PATTON WAS DENIED HIS SIXTH-AMENDMENT RIGHT TO COMPULSORY SERVICE OF PROCESS.

A. Standard of Review

¶ 37. We have held that “a defendant’s right to compulsory process is not absolute and the state may require a showing of some colorable need for persons to be summoned lest the right be abused.” We also have held the question of whether a defendant “demonstrated a colorable need is addressed to the trial court’s sound discretion,” and the trial court’s decision will not be reversed without a clear showing “that the court’s ruling was so fundamentally unfair as to deprive [defendant] of due process of law.”

B. Legal Analysis

¶ 38. Patton argues that he was denied his Sixth-Amendment right to compulsory service of process related to the testimony of District Attorney Doug Evans and Michael Rias. Specifically, Patton argues that the circuit court improperly dismissed Evans from his subpoena, hindering his ability to conduct his defense properly, and that it allowed the prosecution to make Rias unavailable at trial.

¶39. The Sixth Amendment affords a defendant the right “to have compulsory service for obtaining witnesses in his favor.” The Mississippi Constitution mirrors this right by allowing the accused to obtain witnesses in his favor. States cannot arbitrarily deny a defendant “the right to put on the stand a witness ... whose testimony would have been relevant and material to the defense.” However, the right to compulsory process is not absolute. We have held that a defendant does not have a constitutional right to subpoena “anyone or anything he pleases.” Additionally, we have recognized that “the right to call witnesses is limited to relevant and material testimony.” The burden is on the defendant to demonstrate a “colorable need” for the witness.

¶ 40. In this case, Patton failed to demonstrate that Evans’s anticipated testimony was relevant and material to Patton’s defense. Although the trial court allowed Patton to subpoena Evans, when Evans arrived at court he explained to Judge Vollor that he had never had any interactions with Patton or dealings with Patton’s case, and in fact “had never seen [Patton] in [his] life.” Judge Vollor asked Patton how Evans’s testimony would support his defense, but Patton refused to answer, stating he did not want to expose his defense strategy. As Patton refused to articulate how Evans’s testimony would be relevant or material to his defense, Judge Vollor released Evans from his subpoena. We find that the circuit court did not abuse its discretion in releasing Evans from his subpoena, as Patton refused to divulge how Evans’s testimony would aid his defense and made no showing that there was a colorable need for his testimony-

¶ 41. As to the testimony of Rias, he was called at trial as a witness for the State. Patton, through his standby attorney, cross-examined Rias. Later in the trial, Patton stated that he wanted to bring Rias back to court to question him further, but Rias already had been transported back to prison. Judge Vollor clearly stated on record that the circuit court would have Rias returned to trial if the parties desired; however, the parties agreed on record that any additional testimony by Rias was unnecessary in light of the State’s stipulation to certain facts. Therefore, Rias was not brought back to court to testify for a second time. Contrary to Patton’s allegations, the circuit court did not make Rias unavailable as a witness. Rather, Patton cross-examined Rias, and the circuit court clearly was willing to have Rias returned to court to give additional testimony if necessary. This issue is without merit.

VIII. WHETHER THE AMENDMENTS TO THE INDICTMENT WERE PROPER.

A. Standard of Review

¶ 42. “ ‘The question of whether an indictment is fatally defective is an issue of law and deserves a relatively broad standard of review by this Court.’ ” This court has held that a review of the legal sufficiency of an indictment must be reviewed de novo.

B. Legal Analysis

¶ 43. Patton argues that the amendments to the indictment violated Rule 7.09 of the Uniform Rules of Circuit and County Court. Specifically, Patton contends that amending the charge in Count I from “committing false pretense” to “an attempt to commit false pretense” was an amendment of substance and not of form. Patton also argues that the amendments to the dates in Counts IV and V were substantive and should have been denied. He argues that all the amendments were prejudicial.

¶ 44. We have stated, “ ‘[i]t is fundamental that courts may amend indictments only to correct defects of form; however, defects of substance must be corrected by the grand jury.’ ”

It is well settled in this [S]tate [ ... ] that a change in the indictment is permissible if it does not alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant’s case.

We have explained that the “test for whether an amendment to the indictment will prejudice the defense is whether the defense as it originally stood will be equally available after the amendment is made.”

¶45. As to the amendment of Count I from a crime of false of pretense to a crime of an attempt to commit false pretense, Mississippi Code Section 99-19-5(1) allows a jury to find a defendant indicted for a crime “guilty of the offense as charged or any attempt to commit the same offense, or may find him guilty of an inferior offense.” Thus, we have held that defendants in criminal cases are on notice that they “could be convicted of the attempt charge” under Mississippi Code Section 9-19-5, and an amendment of an indictment to change a charge to attempt to commit the charged offense “had the same result as a permissible jury instruction on the attempt charge.” In this case, Patton was on notice that he could be convicted of attempt to commit any of the offenses with which he was charged in the indictment. Therefore, we find that the amendment to Count I did not prejudice Patton and that the circuit court did not err in allowing the amendment to Count I of the indictment to change the charge to attempt to commit false pretense. This issue is without merit.

¶ 46. As for the amendments to Counts IV and V, we have recognized that an amendment to the date of an offense charged in an indictment is not of substance if it does not materially alter the facts that are essential to the offense. “Unless time is an essential element or factor in the crime ... an amendment to change the date on which the offense occurred is one of form only.” In this case, the circuit court allowed the indictment to be amended as to Counts IV and V to change the dates charged in the indictment to correct a mistake regarding the days on which Patton filed pleadings using someone else’s bar number. In this case, time is not an essential element or factor in the crime of fraudulent use of identity, and the change in dates did not alter any facts essential to the charged offenses, as there was no factual dispute regarding these dates. Therefore, we find that the amendments to Counts IV and V were to form only. This issue is without merit.

IX. WHETHER THE TRIAL COURT PROPERLY DENIED THE MOTION FOR DIRECTED VERDICT.

A. Standard of Review

¶ 47. Motions for directed verdict and judgment notwithstanding verdict (JNOV) “challenge the legal sufficiency of the evidence.” “Since each requires consideration of the evidence before the court when made, this Court properly reviews the ruling on the last occasion the challenge was made in the trial court.” “In appeals from an overruled motion for JNOV the sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State.” “We are authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.”

B. Legal Analysis

¶ 48. The State argues that Patton waived his right to appeal the denial of his motion for directed verdict at the end of the State’s case-in-chief because he moved forward with his own case. However, the record shows that Patton renewed his motion for directed verdict at his sentencing hearing, and the circuit court again denied his motion. Patton also moved for a JNOV at his sentencing hearing. Therefore, we treat this assignment of error as an appeal of the denial of Patton’s motion for JNOV, reviewed in the light most favorable to the State and considering the evidence at the end of trial.

¶ 49. Patton argues that his motion should have been granted because the indictment “on its face, is a nullity” that required Patton to “speculate or imagine what the alleged crime really was.” Patton also argues that the amendment to the indictment was unconstitutional. Patton makes no allegation that the evidence was not legally sufficient to convict him of the crimes with which he was charged and makes no specific allegations as to what element(s) of which crime(s) were not proven by the State. As Patton does not challenge the sufficiency of the evidence, but rather again challenges the sufficiency of the indictment, we find that this issue is without merit.

X. WHETHER THE JURY WAS PROPERLY INSTRUCTED ON ALL COUNTS.

A. Standard of Review

¶ 50. “Jury instructions are within the discretion of the trial court and the settled standard of review is abuse of discretion.” “The jury instructions are to be read as a whole, with no one instruction to be read alone or taken out of context.” “When read together, if the jury instructions state the law of the case and create no injustice, then no reversible error will be found.”

B. Legal Analysis

¶ 51. Patton argues that the circuit court judge erred by denying every instruction offered by the defense and granting every instruction offered by the State. Patton further argues that the circuit court refused to allow the defense to inform the jury of each element of the crime which the State was required to prove, failed to recite the elements of the statute, failed to inform the jury of the legislative intent of the statutes he was accused of violating, and erred by including, “if the State fails to prove any one or more of the above elements beyond a reasonable doubt then you should find for the defendant” in the jury instructions. According to Patton, this language is “misleading” and “limits the jury to only one element, and the state fully knew that their required burden [was] to prove all of the essential elements of the crime.” Patton also argues that he was entitled to have jury instructions on his theory of defense.

¶ 52. However, the circuit court did grant Patton’s instructions D-9 and D-10. As the trial court did grant two of Patton’s proposed defense instructions, we find Patton’s argument that the trial court erred by denying every instruction he proposed is without merit. Further, Patton failed to object at trial to the language he now challenges. Therefore, we find this argument is barred on appeal. Reading the jury instructions as a whole, we find the instructions correctly stated the law of the case and that the jury was properly instructed on all elements of each count. This issue is without merit.

XI. WHETHER RULE 1.11 WAS VIOLATED.

¶ 53. Patton argues that he was denied his right to a fair trial because Allgood did not sign the orders he prepared for the circuit court in accordance with Rule 1.11 of the Uniform Rules of County and Circuit Court. Specifically, Patton objects to the sentencing orders, arguing that Allgood’s failure to sign the orders deprived him of a fair trial. However, as Patton has not made a meaningful argument, cited any evidence, or cited any authority to support his allegations, we decline to discuss this assignment of error. Additionally, Patton failed to object to the lack of Allgood’s signature on the prepared orders at trial; therefore, he has waived his right to raise this issue on appeal.

CONCLUSION

¶ 54. We find no merit to in any of Patton’s assignments of error. Therefore, we affirm the judgment of the Winston County Circuit Court.

¶ 55. COUNT I: CONVICTION OF FALSE PRETENSE AND SENTENCE OF THREE (3) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH ONE (1) YEAR AND ONE (1) DAY TO SERVE AND ONE (1) YEAR AND 364 DAYS SUSPENDED FOR A PERIOD OF FIVE (5) YEARS ON SUPERVISED PROBATION, AFFIRMED. COUNT II: CONVICTION OF FRAUDULENT USE OF I.D. AND SENTENCE OF TWO (2) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH ONE (1) YEAR AND ONE (1) DAY TO SERVE AND 364 DAYS SUSPENDED FOR A PERIOD OF FIVE (5) YEARS ON SUPERVISED PROBATION, AFFIRMED. COUNT III: CONVICTION OF FRAUDULENT USE OF I.D. AND SENTENCE OF TWO (2) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH ONE (1) YEAR AND ONE (1) DAY TO SERVE AND 364 DAYS SUSPENDED FOR A PERIOD OF FIVE (5) YEARS ON SUPERVISED PROBATION, AFFIRMED. COUNT IV: CONVICTION OF FRAUDULENT USE OF I.D. AND SENTENCE OF TWO (2) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH ONE (1) YEAR AND ONE (1) DAY TO SERVE AND 364 DAYS SUSPENDED FOR A PERIOD OF FIVE (5) YEARS ON SUPERVISED PROBATION, AFFIRMED. COUNT V: CONVICTION OF FRAUDULENT USE OF I.D. AND SENTENCE OF TWO (2) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH ONE (1) YEAR AND ONE (1) DAY TO SERVE AND 364 DAYS SUSPENDED FOR A PERIOD OF FIVE (5) YEARS ON SUPERVISED PROBATION, AFFIRMED. SENTENCES SHALL RUN CONSECUTIVELY TO EACH OTHER.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR.

      . Rule 1.11 provides as follows:
      With the exception of default or agreed orders and judgments, all proposed orders and judgments to be signed by the court shall be submitted directly to the court by an attorney and not through the clerk or through correspondence, unless otherwise permitted by the court. All orders or judgments presented to the court shall be signed by the attorney presenting the same.
      URCCC 1.11.

      . Michael E. Patten is an attorney licensed in Mississippi and listed in the Bar directory.

      . That Bar number is assigned to a second Mississippi attorney, who testified at the trial.

      . Mississippi Code Section 97-19-39 reads as follows:
      (1) Every person who, with intent to cheat or defraud another, shall designedly, by col- or of any false token or writing, or by another false pretense, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, or valuable thing, with a value of less than Five Hundred Dollars ($500), upon conviction thereof, shall be guilty of a misdemeanor and punished by imprisonment in the county jail not exceeding six (6) months, and by fine not exceeding One Thousand Dollars ($1,000.00). (2) Every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by another false pretense, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, or valuable thing, with a value of Five Hundred Dollars ($500) or more, upon conviction thereof, shall be guilty of a felony and punished by imprisonment in the State Penitentiary not exceeding ten (10) years, and by fine not exceeding Ten Thousand Dollars ($10,000.00).
      Miss.Code Ann. § 97-19-39 (Rev.2006).

      .Mississippi Code Section 97-19-85 reads as follows:
      (1) Any person who shall make or cause to be made any false statement or representation as to his or another person's or entity’s identity, social security account number, credit card number, debit card number or other identifying information for the purpose of fraudulently obtaining or with the intent to obtain goods, services or any thing of value, shall be guilty of a felony and upon conviction thereof for a first offense shall be fined not more than Five Thousand Dollars ($5,000.00) or imprisoned for a term not to exceed five (5) years, or both.
      Miss.Code Ann. § 97-19-39 (Rev.2006).

      . Steve Wright also was representing Rias; therefore, he was replaced as Patton’s standby counsel by Richard Carter.

      . Although it is not clear from the record that the sentencing orders were prepared by All-good, Patton alleges that they were, and the State does not dispute his allegation.

      . We have reorganized Patton's assignments of error into a more logical order. We also have combined Patton's assigned issues one and three, as they involve overlapping analysis.

      . Pulphus v. State, 782 So.2d 1220, 1224 (Miss.2001).

      . Alexander v. State, 759 So.2d 411, 418 (Miss.2000) (citing Pate v. State, 419 So.2d 1324, 1325-26 (Miss.1982)).

      . Randolph v. State, 852 So.2d 547, 558 (Miss.2002) (quoting Govan v. State, 591 So.2d 428, 431 (Miss. 1991)).

      . See Haddox v. State, 636 So.2d 1229, 1240 (Miss.1994) ("The assertion on appeal of grounds for an objection which was not the assertion at trial is not an issue properly preserved on appeal.”) (citations omitted).

      . Randolph, 852 So.2d at 558.

      . Randolph, 852 So.2d at 558 (this Court generally will not consider an assignment of error not supported by meaningful argument and citation of authority); see Haddox, 636 So.2d at 1240 (issue is not properly preserved for appeal absent objection on those grounds at trial).

        .See Randolph, 852 So.2d at 558 (this Court generally will not consider an assignment of error not supported by meaningful argument and citation of authority).

      . Miss. United Methodist Conference v. Brown, 929 So.2d 907, 908 (Miss.2006).

      . Jones v. State, 841 So.2d 115, 135 (Miss.2003).

      .Patton also states, for the first time, that Judge Vollor was appointed by an order signed by Chief Justice Waller, although Mississippi Code Section 9-1-105(2) requires the Chief Justice to appoint a special judge with the advice and consent of the majority of this Court. However, Patton makes no meaningful argument and provides no citation to authority that would require reversal of his convictions on this ground. See Randolph, 852 So.2d at 558 (this Court generally will not consider an assignment of error not supported by meaningful argument and citation of authority). Further, Patton is procedurally barred from arguing this issue on appeal, because he failed to raise it before the circuit court. See Haddox, 636 So.2d at 1240 (issue is not properly preserved for appeal absent objection on those grounds at trial). Therefore, we decline to entertain this argument.

      . Code of Judicial Conduct Canon 3(E)(1).

      . Id.

      . Jones, 841 So.2d at 135.

      . Id. (citing Bredemeier v. Jackson, 689 So.2d 770, 774 (Miss.1997)). See also Turner v. State, 573 So.2d 657, 658 (Miss.1990).

      . See Haddox, 636 So.2d at 1240 (issue is not properly preserved for appeal absent objection on those grounds at trial).

      . Hentz v. State, 542 So.2d 914, 916 (Miss.1989) (quoting Gray v. State, 472 So.2d 409, 413 (Miss.1985)).

      . Id. (citing Gray, 472 So.2d at 413).

      . U.S. Const. amend. VI.

      . Miss. Const. art. 3, § 26.

      . Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).

      . Hentz, 542 So.2d at 916 (citing United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982)).

      . Goforth v. City of Ridgeland, 603 So.2d 323 (Miss.1992).

      . Hentz, 542 So.2d at 916 (citations omitted).

      . Id. at 915.

      . Montgomery v. State, 891 So.2d 179, 185 (Miss.2005) (quoting Nguyen v. State, 761 So.2d 873, 874 (Miss.2000) (citing Peterson v. State, 671 So.2d 647 (Miss.1996))).

      . Id. at 652.

      . Id. at 185-85 (quoting Evans v. State, 813 So.2d 724, 728 (Miss.2002) (quoting Mitchell v. State, 739 So.2d 402, 404 (Miss.Ct.App.1999))). See also URCCC 7.09.

      . Id. at 186 (quoting Miller v. State, 740 So.2d 858, 862 (Miss.1999) (quoting Greenlee v. State, 725 So.2d 816, 821 (Miss.1998))).

      . Id. (citing Griffin v. State, 584 So.2d 1274, 1276 (Miss.1991).

      . Mississippi Code Section 99-19-5(1) reads as follows:
      On an indictment for any offense the jury may find the defendant guilty of the offense as charged, or of any attempt to commit the same offense, or may find him guilty of an inferior offense, or other offense, the commission of which is necessarily included in the offense with which he is charged in the indictment, whether the same be a felony or misdemeanor, without any additional count in the indictment for that purpose.
      Miss.Code Ann. § 99-19-5 (Rev.2007).

      . Eakes v. State, 665 So.2d 852, 860 (Miss.1995).

      . Id.

      . Wilson v. State, 515 So.2d 1181, 1182 (Miss.1987).

      . Baine v. State, 604 2d. 258, 261 (Miss.1992).

      . McClain v. State, 625 So.2d 774, 778 (Miss.1993).

      . Id.

      . Id. (citations omitted).

      . Id. (citations omitted).

      . Hodges v. State, 743 So.2d 319, 325 (Miss.1999).

      . As the sufficiency of the indictment is discussed in Section II, and the amendment of the indictment is discussed in Section VIII, we will not discuss the indictment at this point.

      . Bailey v. State, 78 So.3d 308, 315 (Miss.2012) (citing Newell v. State, 49 So.3d 66, 73 (Miss.2010)).

      . Id. (citing Young v. State, 891 So.2d 813, 819 (Miss.2005) (citing Howell v. State, 860 So.2d 704, 761 (Miss.2003))).

      . Id. (citing Newell, 49 So.3d at 73) (citing Rubenstein v. State, 941 So.2d 735, 784-85 (Miss.2006))).

      . See Hawthorne v. State, 835 So.2d 14, 19 (Miss.2003); Haddox, 636 So.2d at 1240 (issue is not properly preserved for appeal absent objection on those grounds at trial).

      . Rule 1.11 provides as follows:
      With the exception of default or agreed orders and judgments, all proposed orders and judgments to be signed by the court shall be submitted directly to the court by an attorney and not through the clerk or through correspondence, unless otherwise permitted by the court. All orders or judgments presented to the court shall be signed by the attorney presenting the same.
      URCCC 1.11

      . Randolph, 852 So.2d at 558.

      . Rollins v. State, 970 So.2d 716, 721 (Miss.2007) (citing Spicer v. State, 921 So.2d 292, 309 (Miss.2006) (citing Williams v. State, 684 So.2d 1179, 1203 (Miss.1996))).


source: Caselaw Access Project

author: LAMAR, Justice, KITCHENS, Justice,

license: Public Domain

text:
    Laura KARPINSKY v. AMERICAN NATIONAL INSURANCE COMPANY and OraClean, Inc.
    No. 2010-CT-02084-SCT.
    Supreme Court of Mississippi.
    March 7, 2013.

      William C. Miller, Biloxi, attorney for appellant.
    Scott D. Smith, Mark Norton, Hatties-burg, V.K. Smith, III, attorneys for appel-lees.
   ON WRIT OF CERTIORARI

LAMAR, Justice,

for the Court:

¶ 1. In this slip-and-fall case, Laura Kar-pinsky alleges that she sustained injuries when she fell in a puddle in a shopping mall. The Circuit Court for the First Judicial District of Harrison County found that Karpinsky had failed to offer any evidence that her fall was caused by negligence attributable to the Defendants, and entered summary judgment against her. The Court of Appeals found that the circuit court had erred and reversed the summary-judgment order. We granted certio-rari and, finding that the circuit court properly granted summary judgment in this case, we reverse the Court of Appeals and reinstate and affirm the order of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 2. Karpinsky slipped and fell in a puddle of water outside Lane Bryant, a store in Edgewater Mall. Gail Clark, who had been shopping at Lane Bryant, witnessed Karpinsky’s fall. Clark testified during her deposition that there had been no water on the floor when she entered the store, but that when she exited after shopping for “about five minutes,” she saw a cup with ice in it on the floor. Clark did not see how the spill occurred. Approximately ten seconds later, Clark saw Kar-pinsky slip and fall. Clark and her husband helped Karpinsky up and encouraged her to report the incident. Karpinsky testified during her deposition that she had slipped on a liquid, but she did not know what the liquid was, how it got on the floor, or how long it had been there.

¶ 3. Karpinsky filed suit against American National Insurance Company (ANIC), which owns the mall, and OraClean, which provides housekeeping services for the mall, alleging that-she was seriously injured when she slipped and fell, and that her fall was a result of Defendants’ negligence. Specifically, Karpinsky alleged that Defendants had knowledge of the water on the floor and had failed to take reasonable steps to ensure the floor was dry or to warn her adequately of the water on the floor.

¶ 4. After discovery progressed, Defendants filed a motion for summary judgment, arguing that Karpinsky could not carry her burden of proof at trial because she could not show how long the water had been on the floor or that any negligence attributable to Defendants had caused her fall. Defendants further argued that, based upon Clark’s testimony, the water could not have been on the floor for more than five minutes, which was not long enough to reasonably expect Defendants to clean up the spill.

¶ 5. Karpinsky did not file a response to Defendants’ motion. Instead, the day before the hearing on Defendants’ motion, Karpinsky filed an affidavit executed by her former attorney, Dempsey M. Levi. Levi averred that, in connection with representing Karpinsky, he had taken a recorded statement from Clark, and that Clark had told him that the spill had been there for “quite a while” and that there were “tracks, etc.” in the spill. Levi further averred that he had reviewed an “Incident Report” that indicated the mall’s guest services had been notified of the spill prior to Karpinsky’s fall. A transcript of Clark’s recorded statement and the incident report were attached to Levi’s affidavit. Defendants argued that the affidavit and attached documents were not competent summary-judgment evidence because they were hearsay and did not comply with the requirements of Rule 56(e) of the Mississippi Rules of Civil Procedure.

¶ 6. The circuit court recognized that mere proof that a plaintiff fell on a floor located within a business owner’s premises is not enough to prove that the owner was negligent. The circuit court found, without discussing Levi’s affidavit, that Karpin-sky had failed to offer any proof that her fall was caused by a negligent act of either Defendant or that Defendants had knowledge of a dangerous condition on the mall floor, and the court granted Defendants’ motion for summary judgment. Karpin-sky appealed, and we assigned the case to the Court of Appeals.

¶7. The Court of Appeals majority found that, while Defendants had shown the water had not been on the floor longer than five minutes and that Karpinsky did not know who had caused the spill, Defendants had not offered any evidence that they lacked knowledge of the spill. The Court of Appeals further found that “whatever evidence Karpinsky could or could not produce at trial was not an issue until [Defendants] produced credible evidence at the summary-judgment stage that there were no genuine material issues for trial.” The Court of Appeals additionally found that, although “Levi’s affidavit was objectionable because it did not comport with the requirements of Rule 56(e),” Defendants had waived their objection because they did not move to strike the affidavit, and the circuit court should have considered it.

¶ 8. The Court of Appeals concluded that the recorded statement and incident report attached to the affidavit created a genuine issue of fact as to how long the water had been on the floor and proved that Defendants had notice of the spill; therefore, the Court of Appeals reversed the circuit court’s order and remanded the case for further proceedings. We granted certio-rari to clarify the summary-judgment standard and to address whether an affidavit that does not comply with the requirements of Rule 56(e) of the Mississippi Rules of Civil Procedure is sufficient to meet a party’s evidentiary burden at the summary-judgment stage.

DISCUSSION

I. Standard of Review

¶ 9. We review the grant or denial of a motion for summary judgment de novo, viewing the evidence “in the light most favorable to the party against whom the motion has been made.”

II. The Summary-Judgment Standard

¶ 10. Summary judgment is appropriate and “shall be rendered” if the “pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Importantly, the party opposing summary judgment “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, will be entered against him.”

¶ 11. This Court has explained that “in a summary judgment hearing, ‘[t]he burden of producing evidence in support of, or in opposition to, [the] motion ... is a function of [Mississippi] rules regarding the burden of proof at trial on the issues in question.’ ” “The movant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to judgment as a matter of law.” “The movant bears the burden of production if, at trial, he ‘would [bear] the burden of proof on th[e] issue’ raised.” In other words, “the movant only bears the burden of production where they would bear the burden of proof at trial.” Furthermore, “summary judgment ‘is appropriate when the non-moving party has failed to “make a showing sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden of proof at trial.” ’ ”

¶ 12. In this case, it is uncontested that Karpinsky was a business invitee on the day of the accident. The duty of a business owner to an invitee is well-settled under Mississippi law and requires that the owner keep his premises in a reasonably safe condition. Mississippi law further requires that when a dangerous condition exists that was “created by someone not associated with the business, the plaintiff must produce evidence that the owner or operator had actual or constructive knowledge of the dangerous condition as well as a sufficient opportunity to correct it.” Therefore, in order to recover, Karpinsky would be required to produce evidence at trial that Defendants (1) had knowledge of the spill, either actual or constructive, and (2) they had a sufficient opportunity to correct it.

¶ 18. We reiterate and clarify that, while Defendants carry the initial burden of persuading the trial judge that no issue of material fact exists and that they are entitled to summary judgment based upon the established facts, Karpinsky carries the burden of producing sufficient evidence of the essential elements of her claim at the summary-judgment stage, as she would carry the burden of production at trial. Conversely, because Defendants do not carry any burden of production at trial, they also do not carry any burden of production at the summary-judgment stage.

¶ 14. With these principles in mind, we turn to the central issue — whether the circuit court properly granted Defendants summary judgment based upon the facts established in this case.

III. Whether Defendants are entitled to judgment as a matter of law.

¶ 15. We have held that a business owner is not “an insurer” of his patrons’ safety, but must use reasonable care in maintaining his business in a safe condition. In other words, Defendants were required only to “eradicate the known dangerous condition within a reasonable time or to exercise reasonable diligence in warning those who were likely to be injured because of the danger. In either case, however, defendants were entitled to a reasonable time in which to attempt to perform the duty imposed by law.”

¶ 16. At the summary-judgment stage, Defendants carried the initial burden of persuading the circuit court that no issues of material fact existed in this case and that they were entitled to judgment as a matter of law. To support their motion, Defendants offered the depositions of Kar-pinsky and Clark, the only eyewitnesses to the fall. Karpinsky testified that she had slipped on a liquid, but did not know what the liquid was, how it got on the floor, or how long it had been there. Clark testified that there was no water on the floor when she went into Lane Bryant, but that there was a cup with ice in it on the floor when she exited approximately five minutes later. Defendants argued that, based upon the testimony of Karpinsky and Clark, Karpinsky could not show that Defendants had notice of the spill or had failed to clean up the spill in a reasonable time; therefore, they were entitled to summary judgment. We find that Defendants sufficiently met their initial burden of persuading the circuit court that there were no issues of material fact as established by the record and that they were entitled to judgment as a matter of law.

¶ 17. After the Defendants met their initial burden, Karpinsky was required to produce sufficient evidence to establish the essential elements of her case on which she would bear the burden of proof at trial; ie., that Defendants (1) had knowledge of the spill, either actual or constructive, and (2) that they had a sufficient time to correct it, either by cleaning up the spill or warning of its presence. Karpin-sky did not file a response to Defendants’ motion. Instead, on the eve of the hearing on Defendants’ motion, Karpinsky filed an affidavit executed by her former attorney, Dempsey Levi. Attached to the affidavit were Clark’s unsworn recorded statement and a copy of the incident report regarding Karpinsky’s fall, both of which Levi averred he had obtained in the course of representing Karpinsky.

¶ 18. During the hearing on Defendants’ motion, Karpinsky’s counsel argued that Clark’s recorded statement, in which Clark stated the spill had been on the floor “quite a while,” would be used at trial to impeach Clark’s deposition testimony that the spill had been on the floor less than five minutes. Karpinsky’s counsel also argued that the incident report showed Defendants had actual notice of the spill, although he admitted that the report did not state what time Defendants had received actual knowledge of the spill. Kar-pinsky’s counsel argued that, based on Levi’s affidavit and attached documents, there were questions of fact regarding how long the spill had been on the floor and whether Defendants had failed to correct the spill in a reasonable time.

¶ 19. Defendants argued in response that the affidavit and attached documents should not be considered by the circuit court because they were incompetent summary-judgment evidence under Rule 56, as they were hearsay and inadmissible as substantive evidence. The circuit court determined, without discussing the affidavit or attached documentation, that Kar-pinsky had failed to present proof that Defendants’ negligence caused her fall or that they had any knowledge of the dangerous condition, and granted Defendants’ motion for summary judgment.

¶ 20. We have held that if a “party against whom a motion for summary judgment is made wishes to attack one or more of the affidavits upon which the motion is based, he must file in the trial court a motion to strike the affidavit,” or the objection is waived. However, even if we assume that Defendants, who made the motion for summary judgment, waived their objection to the affidavit, this does not mean that the trial court, or an appellate court, is bound to accept the uncontested affidavit as competent evidence under the requirements of Rule 56, sufficient to establish facts for summary-judgment purposes. Rather, it means only that a court should not strike the affidavit and should consider it if the objection is waived. Our trial courts, as well as this Court and our Court of Appeals, upon de novo review, must still determine whether a party has carried its summary-judgment burden based upon the evidence presented to the court.

¶ 21. Not every affidavit presented for a court’s consideration is competent summary-judgment evidence under our rules; indeed, we have clearly held that “conelusory, self-serving affidavits” are not a “sufficient basis for granting summary-judgment.” Rule 56(e) specifically addresses the requirements for the form of an affidavit on summary judgment as follows:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matter stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

¶ 22. In this case, after considering Levi’s affidavit, we conclude that it is not sufficient to carry Karpinsky’s burden for several reasons. First, Levi’s affidavit was not based upon personal knowledge of the facts he attempted to establish; i.e., the length of time the spill had been present and that Defendants had actual knowledge of the spill. Rather, Levi averred that Clark had told him the spill was on the floor for quite a while, and that he learned from an incident report that Defendants had been notified of the spill. Clearly, Levi’s affidavit was based upon hearsay that would not be admissible in evidence at trial.

¶23. Second, an unsworn statement, such as Clark’s, used as impeachment material at trial, would not be admissible as substantive evidence and would not “establish or in any way tend to establish the truth of the matters contained in the out-of-court contradictory statement.” Third, the copy of the incident report presented was not sworn or certified as required by Rule 56(e).

¶ 24. In sum, we find that Levi’s affidavit is not sufficient evidence to carry Karpinsky’s burden in opposition to summary judgment because (1) it is not based upon Levi’s personal knowledge, (2) it does not set forth facts that would be admissible in evidence, and (3) it does not include a sworn or certified copy of the incident report to which it refers. Furthermore, assuming only arguendo that the incident report is competent evidence on summary judgment, it would establish only that Defendants had notice of the spill at some point before Karpinsky’s fall. As Karpinsky admitted, it does not establish when Defendants were notified of the spill or how long Defendants took to respond to the spill after they had notice. Therefore, even if Karpinsky could establish that Defendants had notice of the spill, she presented no evidence that they had a reasonable time to correct the dangerous condition, yet failed to do so, which is an essential element of her claim.

CONCLUSION

¶ 25. We have held that “there must be some evidence of negligence given a jury before it can determine that a defendant is guilty of negligence.” For the reasons discussed above, we find that Karpinsky “failed to ‘make a showing sufficient to establish the existence of an element essential to [her] case, and on which [she]will bear the burden of proof at trial.’ ” Therefore, we find that the circuit court correctly granted summary judgment to Defendants. The judgment of the Court of Appeals is reversed, and the judgment of the Circuit Court of Harrison County is reinstated and affirmed.

¶ 26. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., PIERCE AND COLEMAN, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER AND KING, JJ.

KITCHENS, Justice,

dissenting:

¶ 27. The majority finds that the defendants sufficiently met their burden of persuading the circuit court that the record reflected no genuine issues of material fact, entitling them to judgment as a matter of law. Since I am convinced that the plaintiff has shown that there is indeed a genuine issue of material fact, I respectfully dissent.

¶ 28. Karpinsky had to show two things to overcome the motion for summary judgment and proceed with the prosecution of her slip-and-fall case: (1) that the defendants had actual or constructive knowledge of the spill; and (2) that they had a sufficient opportunity to correct the spill, either by cleaning it up or warning passersby of the danger. Miller v. R.B. Wall Oil Co., Inc., 970 So.2d 127, 132 (Miss.2007) (citation omitted). In arguing that there was no genuine issue of material fact, the defendants produced the depositions of both Karpinsky and Gail Clark, a witness, to suggest that the slippery condition in front of the store could not have existed for more than five minutes. The defendants argue that reasonable minds could not conclude that five minutes is enough time either to clean the spill or warn customers of its presence. The circuit court and the majority found that this was sufficient to shift the burden to Karpinsky to produce sufficient evidence of the essential elements of her claim at the summary judgment stage.

¶ 29. To oppose the defendants’ motion for summary judgment, Karpinsky filed the affidavit of her attorney, Dempsey M. Levi, submitted with two attached exhibits. The first exhibit was the transcript of a statement that Clark, the witness, had given to Levi regarding the incident; the second exhibit was an incident report of Karpinsky’s fall, prepared by a mall employee. In her statement, Clark said that the spill had been on the floor “quite a while” and that “it appeared that the spill had spread and been tracked through.” The incident report, although not specifying the time the spill was reported, stated that “Guest Services advised me that prior to the alleged incident a customer had informed of a spill in front of Lane Bryant [the store], at which time Guest Services notified housekeeping.” (Emphasis added.)

¶ 30. The defendants do not dispute that they had actual knowledge of the spill based on the incident report. They argue instead that the affidavit of Levi was not based on personal knowledge, that the statement by Clark to Levi was unsworn and inadmissible hearsay, and that the incident report is inadmissible hearsay without some sponsoring testimony. The majority posits that the incident report was not sworn or certified and is therefore inadmissible. I do not dispute that Clark’s unsworn statement is hearsay or that Levi’s affidavit is not based on personal knowledge. However, the incident report is not hearsay; and, as explained below, the fact that the incident report is not sworn or certified does not render it inadmissible at trial, and therefore should not render it inadmissible at the summary judgment stage.

¶ 31. Despite the defendants’ contentions, the incident report is not hearsay because it is an admission of a party opponent. “A statement is not hearsay if ... [it] is offered against a party and is ... a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.” M.R.E. 801(d)(2). The incident report was prepared by Security Officer Katy Odell, who was employed by Edgewater Mall, which, at the time of the accident, was owned by American National Insurance Company (ANIC). “It is the well settled law that reports made by an agent in line of duty are admissible in evidence.” McGee v. Maryland Cas. Co., 240 Miss. 447, 451, 127 So.2d 656, 657 (Miss.1961). The incident report was prepared by a mall employee, in the course of her employment, concerning a matter within the scope of her agency or employment. It was prepared on Edgewater Mall letterhead. The defendants have not disputed that the report was prepared by a mall employee or claimed that it is inaccurate. This incident report, prepared by an employee of a defendant, fits squarely into Mississippi Rule of Evidence 801(d)’s definition of a statement that is not hearsay. Furthermore, since the defendants did not move to strike the nonhearsay and admissible incident report, I believe that the trial court was bound to consider it in determining whether Karpinsky had carried her burden of showing a disputed issue of material fact.

¶ 32. The majority opines that the incident report is not admissible because it “is not sworn or certified as required by Rule 56(e).” This might be a concern if there were any dispute concerning the document’s validity or accuracy. However, there is none. The defendants have never disputed the accuracy or authenticity of this document. They did not argue at the summary judgment hearing that they suffered undue surprise or prejudice through the introduction of the incident report. Their sole argument is based on their incorrect contention that it constitutes inadmissible hearsay.

¶ 33. Under the Federal Rules of Civil Procedure, “in order to rebut a properly supported [summary judgment] motion ... Rule 56(e) requires the adversary to set forth facts that would be admissible in evidence at trial.” 10A Wright & Miller, Federal Practice and Procedure § 2727 (3d ed.1998) (emphasis added). Clearly, the incident report would be admissible at trial. Rule 1003 of the Mississippi Rules of Evidence provides that a copy of a writing “is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.” M.R.E. 1003. This copy of the incident report would be admissible, as no genuine question of its authenticity has been raised, and there is no reason for us to believe that it would be unfair to admit it in lieu of the original. The incident report would have been admissible at trial, its authenticity is undisputed, and it satisfied Karpinsky’s burden to show that the defendants' had actual notice of the spill before her fall occurred.

¶ 34. After considering the incident report and looking at the evidence in the light most favorable to the nonmoving party, the defendants were on actual notice of the presence of the spill. Clark’s deposition testimony — which, of course, was sworn — indicated that the spill could not have been on the floor longer than five minutes. Considering the evidence in the light most favorable to the plaintiff, the spill was on the floor for five minutes, and the mall had actual notice very soon after the spill occurred. I believe that reasonable minds could differ as to whether five minutes is a sufficient length of time for the defendants either to clean up the spill or to warn pedestrians of the danger it posed. Counsel for ANIC admitted as much at the summary judgment hearing. When challenging the unsworn statement of Clark that was attached to Levi’s affidavit, counsel stated, “[h]e wants to say that Ms. Clark told him that the spill had been there quite a while. Well, what is quite a while? Quite a while may be five minutes to her.” That is exactly the point. A jury very well could find that five minutes is “quite a while” for a spill to linger in front of a busy store with heavy foot traffic, and, in the context of all the relevant facts adduced during a trial on the merits, that this dangerous condition should have been addressed appropriately by the defendants within that time frame.

¶ 35. “[T]he court cannot try issues of fact on a Rule 56 motion; it may only determine whether there are issues of fact to be tried.” M.R.C.P. 56 cmt. (emphasis added). Whether five minutes is enough time to clean up or warn of a spill is an “issue of fact to be tried.” The circuit court and the majority somehow have determined that five minutes is not enough time to clean up or warn of a spill. In making that determination, they have identified an issue to be tried, but they have tried it themselves. Karpinsky has produced evidence that the defendants had actual notice of the spill; and, viewed in the light most favorable to her, that the spill was on the floor for five minutes before her fall. Because it is abundantly clear to me that the plaintiff met her burden of proof of showing that there are disputed issues of material fact, I cannot agree that summary judgment was appropriate, and I respectfully dissent.

CHANDLER AND KING, JJ., JOIN THIS OPINION.

      . Karpinsky's attorney did not ask Clark any questions during her deposition and did not attempt to impeach her testimony.

      . The Court of Appeals referred to ANIC and OraClean collectively as "OraClean;” however, we refer to them as "Defendants.”

      . Karpinsky v. American Nat’l Ins. Co., 109 So.3d 102 (Miss.Ct.App.2012).

      . Id. at 104 (¶ 10).

      . Id. at 104-05 (¶ 13).

      . Id. at 106-07 (¶ 17). Presiding Judge Griffis argued in his dissent, joined by Judges Ishee and Barnes, that the majority improperly shifted the burden of proof to Defendants, and further argued that Levi's affidavit was incompetent summary-judgment evidence and should not have been considered by the trial court or the Court of Appeals.

      . Pratt v. Gulfport-Biloxi Reg'l Airport Auth., 97 So.3d 68, 71 (Miss.2012) (citations omitted).

      . Miss. R. Civ. P. 56(c).

      . Miss. R. Civ. P. 56(e).

      . Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346, 1355 (Miss.1990) (citations omitted).

      . Id. (citations omitted) (emphasis in original).

      . Id. (citations omitted) (emphasis in original).

      . Daniels v. GNB, Inc., 629 So.2d 595, 600 (Miss.1993).

      . Bucket v. Chaney, 47 So.3d 148, 153 (Miss.2010) (citations omitted).

      . Miller v. R.B. Wall Oil Co., 970 So.2d 127, 132 (Miss.2007) (citation omitted).

      . Id. (emphasis added).

      . J.C. Penney Co. v. Summit, 318 So.2d 829, 832 (Miss.1975).

      . Id.

      . See Borne v. Dunlop Tire Corp., Inc., 12 So.3d 565, 570 (Miss.Ct.App.2009) (noting that circuit court did not strike an affidavit when no motion to strike was made, but rather considered the affidavit and found it to be "not sufficient” under Rule 56).

      . See Sweet v. TCI MS, Inc., 47 So.3d 89, 93 (Miss.2010) (explaining that, although the nonmoving party waived objection to the moving party’s affidavit, the court still must determine whether the affidavit was sufficient to meet the moving party’s burden, because the affidavit was the only evidentiary support for summary judgment).

      . Id. at 93 (citations omitted).

      . Miss. R. Civ. P. 56(e)(emphasis added).

      . Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” M.R.E. 801(c).

      . Levens v. Campbell, 733 So.2d 753, 758 (Miss.1999); Borne, 12 So.3d at 572 (finding affidavit offered on summary judgment that was not based upon affiant's personal knowledge, but rather, contained multiple layers of hearsay, was "substantively insufficient”).

      . Magee v. Magee, 320 So.2d 779, 783 (Miss.1975).

      . Karpinsky argues that Defendants had actual knowledge of the spill and that this is not a constructive-notice case.

      . Miller, 970 So.2d at 132.

      . Bd. of Educ. of Calhoun County v. Warner, 853 So.2d 1159, 1163 (Miss.2003) (citations omitted) (emphasis added).

      . Sumrall, 318 So.2d at 832 (citation omitted).

      . Bucket, 47 So.3d at 153 (citations omitted).


author: PIERCE, Justice,

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Bruce B. SMITH.
    No. 2012-JP-01368-SCT.
    Supreme Court of Mississippi.
    March 14, 2013.
    John B. Toney, Darlene D. Ballard, attorneys for appellant.
    Bruce B. Smith, appellee, pro se.
   PIERCE, Justice,

for the Court:

¶ 1. The Mississippi Commission on Judicial Performance recommends that Bruce B. Smith, municipal court judge for Mendenhall, Mississippi, be publicly reprimanded, suspended from office for thirty days without pay, and taxed with costs in the amount of $1,151.60 for: (1) failing to properly adjudicate criminal matters assigned to him, (2) engaging in ticket-fixing, and (3) dismissing criminal charges against multiple defendants in exchange for simultaneous payments to a “drug fund” established and maintained by the Mendenhall police chief. The Commission found that Judge Smith’s conduct constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute under Section 177A of the Mississippi Constitution of 1890. Specifically, the Commission found by clear and convincing evidence that Judge Smith violated Canons 1, 2A, 3B(1), 3B(2), and 3B(8) of the Code of Judicial Conduct. We concur with the Commission’s findings and adopt its proposed sanctions.

FACTS

¶ 2. In December 2010, the Mississippi Commission on Judicial Performance filed a formal complaint against Judge Smith charging judicial misconduct actionable pursuant to the provisions of Section 177A of the Mississippi Constitution of 1890, as amended. Judge Smith filed an answer denying the charges.

¶ 3. The Committee of the Commission on Judicial Performance held a hearing on the allegations on March 16, 2012. On July 26, 2012, the Committee filed its Findings of Fact and Conclusions of Law. Judge Smith filed an objection to these findings. At its regularly scheduled meeting on August 10, 2012, the full Commission accepted and adopted the Committee’s Findings of Fact and Conclusions of Law and overruled Judge Smith’s motion to dismiss. On August 21, 2012, the Commission entered its Findings of Fact, Conclusions of Law and Recommendation.

¶ 4. According to the Commission’s findings, from December 2009 through July 2010, until his resignation in October 2010, Bruce Barlow, police chief of the City of Mendenhall instituted a program whereby defendants charged with violations of Mississippi’s Implied Consent Law, as well as felonies and various misdemeanor offenses, could avoid prosecution on those charges in exchange for a payment to a “drug fund” maintained by the City of Menden-hall. Judge Smith, with full knowledge of the program, presided over thirty-eight cases during that time period in which such charges were ordered dismissed and/or remanded to file upon the recommendation of the police chief, with simultaneous payments made by the defendants into the drug fund. It is undisputed that Judge Smith knew of the program’s existence. In his opening statement at the hearing, he explicitly stated that he knew these negotiations involving payments into the drug fund were taking place. “I’d be on the bench doing guilty pleas. They’d be in the back negotiating these things out. So they’d come back out, and they’d make this recommendation to me.” As a result, each defendant received assurance that a conviction on the pending charges and its subsequent consequences would never appear on the defendant’s driving record or criminal history.

¶ 5. A summary of the pertinent cases disposed of by Judge Smith was introduced at the hearing. The exhibit shows that, in thirty-six of the thirty-eight cases, each defendant pleaded guilty to a lesser charge and paid a fine and state assessment of costs; this was in addition to the payment the defendant made into the drug fund to have his or her greater charge(s) dismissed and/or remanded to file. In the other two cases, Judge Smith dismissed all the charges presented. The amount paid into the drug fund in each case ranged from $250 to $8,000.

¶ 6. According to the Commission, other defendants similarly charged during this time period who had appeared before Judge Smith were found guilty and paid fines and assessments. Chief Barlow did not offer these defendants the opportunity to pay money into the drug fund to get their charges dismissed.

¶ 7. William Smith, the city prosecutor, also with full knowledge of the program, acquiesced in the disposition of the pertinent cases. Smith testified at the hearing that he was not involved in the negotiations for the disposition of the charges, and he acknowledged that he did not attempt to ascertain the viability of the cases for prosecution.

¶ 8. Lori King, the municipal court clerk for Mendenhall, whose office is responsible for “administering the collection of all fines, penalties, fees and costs imposed by the court and depositing all collections with the municipal treasurer or equivalent officer[,]” testified that her office received only the fine and assessment money paid in each particular case. The drug-fund payments were handled by the Mendenhall police department. According to King, she found the matter “very unsettling” because she knew of no other court engaging in such practice.

¶ 9. Officer Kris Grantham, the arresting officer in a majority of these cases, testified that he was aware of the drug fund and that many of the charges he had written were being dismissed upon a defendant’s payment into it. Officer Grant-ham learned of the practice from Chief Barlow, and Officer Grantham complained about it to other police officers. According to Officer Grantham, when Chief Barlow found out about his complaints, Chief Barlow told him to either “quit or be fired.” Officer Grantham thereafter left the Men-denhall police force. He returned approximately five months later when a new police chief was hired.

¶ 10. The disposal of cases in this manner continued until the Federal Bureau of Investigation began an investigation into the alleged mishandling of the “drug-fund” money by Chief Barlow, at which time Judge Smith and the prosecutor ceased the practice.

¶ 11. Judge Smith has served as a municipal court judge for twenty years, and this is the first formal complaint filed against him. There are no allegations that Judge Smith in any way profited financially from the actions of which he is charged.

1112. Judge Smith argues the following:

I. The Commission erred in denying his motion to dismiss for lack of jurisdiction.
II. The Commission erred in not dismissing the amended complaint pursuant to this Court’s recent rulings in Mississippi Commission on Judicial Performance v. Little and Mississippi Commission on Judicial Performance v. McGee.
III. The Commission erred in not recommending a private admonishment pursuant to the Gibson factors.

¶ 13. Additional facts, as necessary, will be related in our discussion.

DISCUSSION

¶ 14. This Court is vested with the sole power to impose sanctions in judicial misconduct cases and, thus, must undertake an independent inquiry of the case record. In re Anderson, 412 So.2d 743, 746 (Miss.1982). In so doing, this Court accords “careful consideration [to] the findings of fact and recommendations of the Commission, or its committee, which has had the opportunity to observe the demeanor of the witnesses.” Id. This Court may “accept, reject, or modify, in whole or in part, the findings and recommendation of the Commission.” Miss. Comm’n on Judicial Performance R.10(E).

I. The Commission erred in denying his motion to dismiss for lack of jurisdiction.

II. The Commission erred in not dismissing the amended complaint pursuant to this Court’s recent rulings in Mississippi Commission on Judicial Performance v. Little and Mississippi Commission on Judicial Performance v. McGee.

¶ 15. We address issues one and two together. Judge Smith argues that, pursuant to Rule 2 of the Rules of the Mississippi Commission on Judicial Performance, the Commission did not have jurisdiction to hear the complaint against him. Rule 2 states, in part, that, “In the absence of fraud, corrupt motive, or bad faith, the Commission shall not consider allegations against a judge for making findings of fact, reaching a legal conclusion, or applying the law as he understands it.” Judge Smith contends that the complaint against him made no allegations of fraud, corrupt motive, or bad faith and that, after a thorough investigation and full hearing of this matter, there has been no finding that he committed any fraud or acted with corrupt motive or bad faith. Judge Smith maintains that the established facts show he merely sustained the motion made by the prosecutor in all the subject cases, and even if he erred in doing so, such error does not constitute fraud, corrupt motive, or bad faith.

¶ 16. Also, Judge Smith contends that this case is nearly identical to this Court’s recent decisions in Mississippi Commission on Judicial Performance v. Little, 72 So.3d 501 (Miss.2011), and Mississippi Commission on Judicial Performance v. McGee, 71 So.3d 578 (Miss.2011). In those two cases, justice court judges were charged with judicial misconduct for remanding, nonadjudicating, or retiring to the files several DUI charges at the request of county prosecutors. Little, 72 So.3d at 502; McGee, 71 So.3d at 584-85. This Court dismissed those counts with prejudice, holding that, even if the judges had improperly disposed of the DUI charges, their decisions were only a mistake of law and not sanctionable. Little, 72 So.3d at 504; McGee, 71 So.3d at 584-85.

¶ 17. Judge Smith’s contention that the Commission was without jurisdiction in this matter is meritless. As this Court has held, “a judge may ... through negligence or ignorance not amounting to bad faith, behave in a manner prejudicial to the administration of justice so as to bring the judicial office into disrepute.” Miss. Comm’n on Judicial Performance v. Russell, 691 So.2d 929, 937 (Miss.1997) (quoting Miss. Comm’n on Judicial Performance v. Milling, 651 So.2d 531, 538 (Miss.1995)). “The misconduct complained of need not be intentional or notorious; rather negligence, ignorance, and incompetence suffice as grounds for behavior to be classified as prejudicial to the administration of justice which brings the judicial office into disrepute and thus worthy of sanctions.” Mississippi Comm’n on Judicial Performance v. Carr, 786 So.2d 1055, 1059 (Miss.2001) (citing In re Quick, 553 So.2d 522, 527 (Miss.1989)). This Court can recognize generally an example of willful misconduct presented for review, without a detailed discussion of each Canon violated. Mississippi Comm’n on Judicial Performance v. Guest, 717 So.2d 325, 328 (Miss.1998) (citing In re Anderson, 412 So.2d 743, 752 (Miss.1982) (Hawkins, J. specially concurring)).

¶ 18. Judge Smith’s actions clearly constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute pursuant to Section 177A of the Mississippi Constitution of 1890. And we adopt the Commission’s findings that Judge Smith’s conduct violated Canons 1 (requiring judges to uphold the integrity and independence of the judiciary), 2A (requiring judges to avoid impropriety and the appearance of impropriety, in all activities, including respecting and complying with the law), 3B(1), 3B(2), and 3B(8) (requiring judges impartially and diligently to perform their judicial duties by, inter alia, being faithful to the law and disposing of all judicial matters assigned, efficiently and fairly).

¶ 19. Testimony was presented at Judge Smith’s hearing that DUI charges adjudicated in the City of Mendenhall Municipal Court were, for reasons undisclosed by the record before us, consistently being overturned by the Simpson County Circuit Court — thereby depriving the city of monies from the fines associated with such charge(s). Judge Smith and the prosecutor apparently saw a fix to this perceived problem with the so-called drug fund instituted by Chief Barlow. Judge Smith admitted that his decision to accept the lesser pleas contingent on payments into the drug fund was at least partially motivated by his desire to collect fees for the City of Mendenhall. “I could have said, no, we’re not going to do this, call your witness, and then dismiss them and the City of Men-denhall get nothing.” Judge Smith also apparently felt justified that the drug fund plea deals were good because it created a situation where “everybody [was] happy” and “[njobody [was] complaining.” Ultimately, it appears his decision to go along with the recommendations was practical, rather than legal. “This was a ... practical matter of getting rid of cases, getting some money for the City of Mendenhall, getting some punishment to the guys that did this, and, you know, the case is over.”

¶ 20. The powers and duties of a municipal-court judge are prescribed by Mississippi Code Section 21-23-7. It states, in part, that a “municipal judge shall have the jurisdiction to hear and determine ... all cases charging violations of the municipal ordinances and state misdemeanor laws made offenses against the municipality and to punish offenders therefor as may be prescribed by law.” Miss.Code Ann. § 21-23-7(1) (Supp.2012). Here, Judge Smith dismissed numerous charges brought before his court for adjudication in exchange for payments made into an unauthorized drug fund. Such payments, ranging — as mentioned — from $250 to $3,000, essentially constituted fines, i.e., pecuniary punishment.

¶ 21. The law plainly states that “[a] person charged with an offense shall not be punished therefor unless legally convicted thereof.” Miss.Code Ann. § 99-19-3 (Rev.2007). Section 21-23-7(11) of the Mississippi Code, however, does allow the municipal court to impose reasonable court costs when “any affidavit, complaint, or charge is dismissed,” but which shall not exceed $50. Miss.Code Ann. § 21-23-7(11) (Supp.2012).

¶22. Unlike what we found in Little and McGee, Judge Smith’s decision to dispose of the charges in this manner constituted not a mistake of the law, but a clear disregard of it, and is sanctionable.

III. Sanctions

¶ 28. Article 6, Section 177A of the Mississippi Constitution of 1890, as amended, provides that a judge may be removed, suspended, fined, publicly censured, or publicly reprimanded by the Supreme Court. The Commission recommends sanctions of a public reprimand, suspension from office for a thirty-day period without pay, and costs in the amount of $1,151.60. Judge Smith argues that he should be sanctioned with a private reprimand.

¶ 24. In determining the appropriate sanctions for a judicial misconduct, the following six Gibson criteria are considered:

(1)The length and character of the judge’s public service; (2) Whether there is any prior case law on point; (3) The magnitude of the offense and the harm suffered; (4) “Whether the misconduct is an isolated incident or evidences a pattern of conduct; (5) Whether moral turpitude was involved; and (6) The presence or absence of mitigating or aggravating circumstances.

Miss. Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155 (Miss.2004), overruled in part on other grounds by Miss. Comm’n on Judicial Performance v. Boone, 60 So.3d 172, 174 (Miss.2011).

(I) The length and character of the judge’s public service

¶ 25. Judge Smith has been a municipal-court judge for eighteen years. The record is silent as to the character of his public service.

(2) Whether there is any prior case-law on point.

¶ 26. We found no previous decision by this Court that addresses the type of misconduct at issue here. However, the case of Mississippi Commission on Judicial Performance v. Sheffield, 883 So.2d 546 (Miss.2004), bears mentioning. There, a justice-court judge, upset with Lee County over the lack of funding for a court bailiff, decided he would “teach the county a lesson” by suspending fines and state assessments in a number of cases-thereby depriving the county of money from fines and state assessments. Id. at 547. This Court found such conduct constituted a gross abuse of power and agreed with the Commission’s proposed sanctions of a public reprimand, a $192 fine, and $100 in court costs.

¶ 27. Here, Judge Smith’s actions were not based on spite, but rather were motivated on what he and the prosecutor believed was a “good idea.” Judge Smith’s good intentions notwithstanding, his judicial conduct similarly constituted a gross abuse of power.

(3) The magnitude of the offense and the harm suffered

¶ 28. Canon 1 was violated when Judge Smith engaged in a pattern of improperly adjudicating criminal matters assigned to him and failing to assess statutory fines and costs in criminal matters. Thus, his actions compromised the integrity and independence of the judiciary and his duties as a judicial officer. Judge Smith violated Canons 2A, 3B(1), and 3B(2) when he dismissed charges against criminal defendants in exchange for simultaneous payments to an authorized drug fund. Judge Smith violated Canon 3B(8) by ordering payments to be made by a criminal defendant at a time when the criminal charges were dismissed.

(4) Whether the misconduct is an isolated incident or evidences a pattern of conduct.

¶ 29. Judge Smith does not have a disciplinary history with the Commission. Nevertheless, this Court “has found that a pattern of misconduct exists where a single disciplinary action comprises multiple offenses.” Miss. Comm’n on Judicial Performance v. McKenzie, 63 So.3d 1219, 1225 (Miss.2011) (citation omitted). In this instance, Judge Smith disposed of multiple charges in thirty-eight cases by dismissing or remanding the same in exchange for a payment of money to an unauthorized drug fund.

(5) Whether moral turpitude was involved.

¶ 30. We find no moral turpitude involved in this case.

(6) The presence or absence of mitigating or aggravating factors

¶ 31. In mitigation, there is no indication that Judge Smith profited in any manner from the payments into the drug fund. Judge Smith has not been the subject of any other complaints during his eighteen years on the bench, and the conduct complained of herein has ceased. And, although Judge Smith challenged the charges against him, the Commission noted for the record that Judge Smith cooperated fully with the Commission throughout the matter.

CONCLUSION

¶ 32. In conclusion, we find the actions of Bruce B. Smith, Municipal Court Judge, Mendenhall, Mississippi, constituted willful misconduct prejudicial to the administration of justice which brought the judicial office into disrepute. Accordingly, after considering the Gibson factors, we adopt the recommendation of the Commission. Judge Smith shall be publicly reprimanded, suspended from office for thirty days without pay, and taxed with costs in the amount of $1,151.60. The Clerk of this Court shall send copies of this opinion together with the mandate of this Court to the Municipal Clerk of the City of Men-denhall and the Circuit Clerk of Simpson County.

¶ 33. MUNICIPAL COURT JUDGE BRUCE B. SMITH SHALL BE SUSPENDED FROM OFFICE FOR A PERIOD OF THIRTY DAYS WITHOUT PAY, EFFECTIVE ON THE DATE OF THE ISSUANCE OF THIS COURT’S MANDATE; PUBLICLY REPRIMANDED; AND ASSESSED COSTS OF $1,151.60. THE PUBLIC REPRIMAND SHALL BE READ IN OPEN COURT ON THE FIRST DAY OF THE NEXT TERM OF THE SIMPSON COUNTY CIRCUIT COURT IN WHICH A JURY VENIRE IS PRESENT AFTER THE ISSUANCE OF THIS COURT’S MANDATE, WITH JUDGE SMITH IN ATTENDANCE.

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

      . Charges were remanded to file in four of the thirty-eight cases.

        . See Miss. Code Ann. § 21-23-11 (Rev.2007).