author: DENNIS R. BAGNERIS, SR., Judge.

text:
    STATE of Louisiana v. Joseph J. SCOTT.
    No. 2013-KA-0321.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 26, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellee State of Louisiana.
    Christopher A. Aberle, Mandeville, LA, for Defendant/Appellant, Joseph J. Scott.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge JOY COSSICH LOBRANO).
   DENNIS R. BAGNERIS, SR., Judge.

laPefendant, Joseph Scott, appeals his conviction and sentence for possession of a firearm by a convicted felon and his adjudication as a third multiple offender. Finding that the evidence was insufficient to convict, we reverse defendant’s conviction and sentence.

STATEMENT OF THE CASE

Defendant, Joseph Scott, was charged by bill of information on May 9, 2012, with possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. He pled not guilty. Thereafter, the trial court denied defendant’s motion to suppress the evidence. The defendant proceeded to trial before a twelve-person jury on October 3, 2012; he was found guilty as charged. The trial court denied defendant’s motion for new trial on November 30, 2012. On December 5, 2012, the trial court sentenced defendant to ten years at hard labor, without benefit of parole, probation, or suspension of sentence. On the same date, the trial court adjudicated defendant a third-felony habitual offender, vacated the original sentence imposed, and resen-tenced defendant to twenty years at hard labor, without the benefit of probation or suspension of sentence.

The present appeal followed.

FACTSIPROCEDURAL HISTORY

The following testimony was adduced at trial.

Amanda Prudhomme testified that she was defendant’s parole officer based on a Texas conviction. Officer Prudhomme advised that parolees cannot engage in criminal activity or be arrested; additionally, they cannot own, possess, or have access to a firearm.

On April 11, 2012, she went to the address defendant had identified as his residence to conduct a residence check. When she entered the residence, she ^smelled what she believed was the odor of burnt marijuana. The defendant identified the master bedroom as his room. Officer Prudhomme then scheduled an appointment to see him the next business day and left. She reported her observations to her supervisor. The supervisor directed her to conduct a search of the residence and to obtain back-up assistance. Approximately thirty to forty minutes later, Officer Justin Edgecombe arrived to assist her.

Officer Edgecombe and Officer Prud-homme returned to the residence to conduct the search. Officer Prudhomme said she found a hollowed out cigar in an ashtray in the master bedroom and saw what seemed to be a marijuana stem in the toilet. Officer Prudhomme acknowledged, however, that she did not retrieve any marijuana. Officer Prudhomme stated that it was Officer Edgecombe that discovered the ammunition and the gun. She did not know if any fingerprints or DNA were found on the gun. Officer Prud-homme also did not recall if the clothing she saw was men’s or women’s clothing.

Officer Edgecombe testified that the defendant and his “wife” were present when Officer Prudhomme and he entered the residence. Officer Edgecombe also said he smelled marijuana inside the residence. Officer Edgecombe advised that Officer Prudhomme stayed with the defendant and his “wife” in the living room, while he searched the remaining parts of the residence. He found a purse underneath the bed which contained a single bullet. Officer Edgecombe searched the closet, which was beyond the master bathroom. The master bedroom provided the only access to the closet. He saw clothes everywhere; however, the officer could not say if the clothes were men’s or women’s clothing. Officer Edgecombe discovered a box of ammunition and a magazine on a shelf underneath some clothing. He notified Officer Prudhomme of his findings. When the defendant and |4his “wife” were then asked if there were any guns in the house, both denied that there were any.

Officer Edgecombe continued his search. On another shelf in the closet, he picked up a heavy purse. Upon opening, he discovered a pistol that was wrapped in crumbled paper. He acknowledged on cross-examination that he did not know who owned the gun and did not know whether DNA evidence or fingerprints were ever taken from the gun.

Valerie Taylor, the person identified by the officers as defendant’s wife, testified that she had known defendant for almost twenty-three years. He was the father of one of her children. He would stay with her off and on when he was not incarcerated. She said the residence where the gun was found was leased solely to her. She had been living there approximately two years. She testified that she owned the gun found by Officer Edgecombe. She purchased it on March 20, 2011 at Academy Sports, a year or so before defendant’s arrest for gun possession. She identified receipts which showed she had purchased the gun. She said she purchased the gun because someone had once pulled an assault weapon on Ms. Taylor and her daughter and that her home had been burglarized.

Ms. Taylor stated that defendant came to live with her on March 8, 2012, about a month before his arrest for gun possession. She said defendant had been working and drove a dump truck for a construction company. Ms. Taylor acknowledged that the defendant and she shared a bedroom; however, she clarified that they did not share a closet. She maintained that the defendant kept his clothes in the computer closet and that he showed Officer Prudhomme that his clothes were kept in the computer closet.

|fiMs. Taylor claimed that the gun had only been at her residence approximately four days before Officer Edgecombe found it. Previously, the gun had been at her mother’s residence. She admitted that she lied to Officer Prudhomme when the officer initially asked her if she had a gun in the residence. She said she lied because she knew defendant was not supposed to “be around” a firearm. She said she had told defendant that she had purchased the gun while he was still incarcerated in Texas. She maintained that he had been opposed to the purchase.

Ms. Taylor said the gun Officer Edge-combe ultimately found was in a new, unused purse in her closet. Ms. Taylor maintained that on April 11, 2012, defendant knew nothing about the gun being in the house. She said they had not had a conversation about the gun after he came to live there, but had one before, while he was in prison in Texas. She claimed that when defendant had asked her what she had done with the gun, she told him that the gun was at her mother’s. Ms. Taylor stressed that neither defendant nor her children knew anything about the gun being in the house. She testified that he did not tell her what to do with the gun and did not tell her to hide the gun in the purse.

Defendant testified that Ms. Taylor became his common law wife while he was in prison in Texas. He said he had known her for twenty-three or twenty-four years. He confirmed that they had a child together. He said that while he was in prison, she told him she was buying a firearm, and he told her he could not “be around” a firearm. He testified that before he came to live with Ms. Taylor, she told him that she had put the firearm in her mother’s residence. Defendant claimed that he did not know the gun was in the residence on the date of the arrest.

IfiDon Hancock, the telephone supervisor for the Orleans Parish Sheriffs Office, testified for the State on rebuttal. Mr. Hancock testified that all inmate calls are recorded and are stored electronically.

Mr. Hancock identified a CD that contained four telephone calls the defendant made to telephone number 418-6909 on April 11, 2012. The calls were all from the same caller, “Joseph” to the same unidentified female caller. They were made on April 11, 2012, the evening of defendant’s arrest.

The State played an excerpt of these calls to the jury. Defense counsel objected; however, he was overruled. In the portion played to the jury, the defendant chided Ms. Taylor about the gun, admonishing her that he had previously warned her that he could not be around any guns. Ms. Taylor responded: “Yeah, but you told me to put it in the purse and wrap it up. You told me that.” The defendant then reiterated, “Yeah, but I’m just saying, you knew I couldn’t be around [a gun (inaudible) ].”

At the conclusion of the trial, the jury voted 11-1 to find the defendant guilty as charged. Thereafter, the trial court adjudicated defendant to be a third felony offender and sentenced him to twenty years in prison. This appeal follows.

DISCUSSION/ASSIGNMENTS OF ERROR

Defendant’s counseled and pro se assignments of error maintain that:

1) The evidence is insufficient to sustain defendant’s conviction, specifically to prove that he intended to possess a firearm;
2) The trial court erred in admitting a record call defendant made while in Orleans Parish Prison;
3) Ineffective assistance of counsel;
4) The trial court erred in holding defendant in contempt of court;
The trial court erred in denying defendant’s motion to quash the habitual offender bill of information;
6) The trial court erred in finding that probable cause existed for his arrest based upon an illegal search and seizure;
7) The trial court erred in denying defendant’s motion to inspect, examine, fingerprint and test physical evidence, and in allowing the State to refer to impermissible and prejudicial evidence in its closing argument without advising the defense in writing prior to trial; and
8) The trial court erred in not granting defense counsel’s oral motion for a mistrial.
9) Defendant’s multiple offender adjudication must be reversed on error patent review because the State relied on improper predicate offenses to obtain the adjudication.
We first consider plaintiffs claim that the evidence was insufficient to convict.
This Court set forth the applicable standard of review for sufficiency of the evidence in State v. Huckabay, 2000-1082, p. 32 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093, 1111, as follows:
In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be 1 ¿impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall; Green; supra. “[Ajreviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319 (La.1992) at 1324.
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, supra, but rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).

Huckabay, 2000-1082, p. 32, 809 So.2d at 1111, quoting State v. Ragas, 98-0011, pp. 13-14 (La.App. 4 Cir. 7/28/99), 744 So.2d 99, 106-107.

With reference to the present offense, La. R.S. 14:95.1 states, in pertinent part, that “[i]t shall be unlawful for any person who has been convicted [of an enumerated felony] to possess a firearm.” In order to convict for possession of a firearm by a convicted felon, the State must prove beyond a reasonable doubt that the defendant: (1) possessed a firearm; (2) was previously convicted of an enumerated felony; (3) possessed the firearm within ten years of the previous conviction; (4) had the general intent to commit the crime. State v. Fields, 2012-0674, p. 6 (La.App. 4 Cir. 6/19/13), 120 So.3d 309, 315.

In the instant case, defendant stipulated at trial to five prior felony convictions. Four of the convictions, including the 2006 Texas conviction, were qualifying, enumerated offenses for purposes of La. R.S. 14:95.1. Thus, our review of defendant’s claim that the evidence was insufficient to convict is limited 19to whether the evidence proved he possessed the firearm and whether he had the general intent to possess the firearm.

Actual possession of the firearm is not necessary to prove the possession element of La. R.S. 14:95.1; constructive possession is sufficient. Fields, 2012-0674, p. 6, 120 So.3d at 315. A person is in constructive possession of a firearm if it is subject to his dominion and control. State v. Johnson, 2003-1228, p. 5 (La.4/14/04), 870 So.2d 995, 998. A defendant’s dominion and control over a firearm constitutes constructive possession even if it is only temporary and even if the control is shared. Johnson, 2003-1228, p. 5, 870 So.2d at 999; State v. Major, 2008-0861, p. 6 (La.App. 4 Cir. 12/10/08), 1 So.3d 715, 720.

However, the mere presence of a defendant in the area of contraband or other evidence, alone, does not prove that he “exercised” dominion and control over the evidence and therefore had it in his constructive possession. Johnson, 2003-1228, p. 6, 870 So.2d at 999; State v. Clements, 2012-1132, pp. 5-6 (La.App. 4 Cir. 3/13/13), 112 So.3d 306, 311. Thus, the State must prove that the offender “exercised” dominion and control over the firearm. “When the perpetrator has not carried the firearm on his person, the State must show that the defendant’s intent amounted to an intent to possess rather than a mere acquiescence to the fact that there was a firearm in his presence.” State v. Haddad, 99-1272, p. 2, fn. 2 (La.2/29/00), 767 So.2d 682, 684, fn. 2, citing State v. Woods, 94-2650 (La.App. 4 Cir. 4/20/95), 654 So.2d 809.

General criminal intent is present when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed consequences as reasonably certain to result from his act. La. R.S. 14:10(2). Accordingly, the State’s burden of proof requires it to show that the |indefendant was aware that a firearm was in his presence and that he had the general intent to possess the weapon. Clements, supra.

The defendant’s “awareness” is a factor that overlaps the elements of possession and intent. State v. Beaulieu, 2012-0735, p. 17 (La.App. 4 Cir. 8/7/13), 122 So.3d 1050, 1061; Major, supra. Guilty knowledge, an essential component of any showing that a defendant has constructive possession of contraband, may be inferred from the circumstances of the transaction. State v. Pigford, 205-0477, p. 7 (La.2/22/06), 922 So.2d 517, 521; see also Clements, supra (guilty knowledge may be inferred from the circumstances and proved by direct or circumstantial evidence).

In applying these precepts, the appellate court, in State v. Fisher, 94-2255 (La.App. 1 Cir. 12/15/95), 669 So.2d 460, reversed the defendant’s conviction for possession of a firearm by a convicted felon. The Fisher defendant was stopped for erratic driving while driving a vehicle that was registered to his sister’s mother. The stop happened after the defendant and his sister had picked up the sister’s friend who had just been released from a correctional facility. After the search, the officers found a pistol inside the sister’s purse and a magazine inside the defendant’s pocket. The sister provided a receipt which showed she purchased the gun. She testified that she was the only one who used the gun. The sister explained that at the request of prison authorities, she gave the gun to them. They returned the gun after the visit and she placed the gun in her purse. At some point, the defendant put the magazine in his shirt.

In finding the evidence insufficient to sustain the defendant’s conviction under the Jackson standard, the appellate court reasoned:

| nClearly, defendant was aware of the gun’s presence. However, there is no evidence his intent amounted to an intent to possess the gun rather than mere acquiescence to the fact his sister owned a gun and had the gun in her purse.... While defendant’s physical possession of the ammunition is relevant to establish his knowledge and general intent, considering the manner in which he came into possession of the [magazine], the presence of the [magazine] on his person does not show his intent to exercise dominion and control over the gun.... Defendant’s sister owned the gun and stored the gun in her purse. Thus, the mere fact defendant could have reached for the gun does not establish his dominion and control over it.

Fisher, 94-2255, pp. 4-5, 669 So.2d 462-463.

The Fisher court relied in part on State v. Heacox, 543 So.2d 101 (La.App. 3 Cir.1989), another opinion that decided that the evidence was insufficient to sustain the defendant’s conviction for possession of a firearm by a convicted felon. In that matter, an undercover police officer sought to purchase marijuana from the defendant, who was a passenger in a truck driven by the owner. During the exchange, the officer saw a handgun on the front seat, between the defendant and the driver. The gun was subsequently seized from the driver’s home; which later resulted in the defendant’s arrest and conviction for second offense distribution of marijuana and possession of a firearm by a convicted felon. In concluding that the evidence was insufficient to support the defendant’s conviction for possession of a firearm by a convicted felon, the court stated:

We find that, under Jackson v. Virginia, the evidence is insufficient to find that the gun was subject to Heacox’s dominion and control. There was no evidence that Heacox was aware of the presence of the gun. Alternatively, if he was aware of the gun’s presence, there is no evidence that Heacox’s intent amounted to an intent to possess rather than mere acquiescence to the fact that Willet had a gun in his truck. The gun was not found on his person or found in or on property over which he had dominion and control. There was no evidence that he had been seen with the weapon or that he touched the weapon during the October 10, 1985 transaction. Therefore, the evidence falls short of proving beyond a reasonable doubt that Heacox was in constructive possession of the weapon.

Heacox, 543 So.2d at 106.

|12The State argues that it proved constructive possession based on the testimony of Officers Prudhomme and Edge-combe; in particular, their testimony that the defendant and Ms. Taylor denied the existence of guns and/or munitions in the residence prior to the handgun’s discovery. The State cites Ms. Taylor’s testimony that she lied in order to protect the defendant. The State also maintains the “jail” tapes clearly show that the defendant had prior knowledge of the presence of the gun on the premises, despite the previous denials of the defendant and Ms. Taylor, and as such, clearly implicate him in the crime.

This Court acknowledges that the “jail” tapes show that the defendant told Ms. Taylor at some previous point in time to put the gun in “the purse,” because he knew the residence was subject to being searched. They also reveal that the defendant chastised Ms. Taylor for having a gun because she knew defendant could not afford to be around guns. However, while the tapes may undermine the credibility of both the defendant and Ms. Taylor, their credibility is undermined only to the extent that the tapes contradict their claim that he was unaware a gun was in the residence. In viewing the evidence most favorable to the prosecution, the most that any rational factfinder could conclude from the recordings is that the defendant knew the gun was someplace in the residence. We find that the issue of defendant’s general intent to possess cannot be inferred from the recorded phone calls. These recorded calls establish only that defendant believed he could not know that a gun was in the residence in which he lived and that in general, he could not be around guns.

However, neither La. R.S. 14:95.1 nor the jurisprudence interpreting its provision prohibiting convicted felons from possessing a firearm provides that a convicted felon cannot live in a residence where another member of that household | ^possesses a firearm or that a convicted felon cannot “be around” a firearm. As referenced herein, proof that a convicted felon is aware that he is “around” a firearm is not in and of itself, a violation of the statute; nor is the felon’s mere acquiescence to the presence of a firearm. In order to convict the defendant, the State has to prove that he was aware that a firearm was in his presence and that, in addition, he had a general intent to possess it. Clements, supra. The offender has to exercise dominion and control over the gun. Johnson, supra.

When we review the context of defendant’s arrest to determine whether he possessed and/or had the general intent to possess the gun in the matter at bar, the undisputed evidence established that the gun was purchased by Ms. Taylor for her personal protection about a year before defendant’s release. The gun was found in a residence where Ms. Taylor was the leaseholder and where defendant had only lived for about thirty days before his arrest. The gun was discovered within Ms. Taylor’s purse. Additionally, the closet in which the handgun, the box of ammunition, and the magazines were discovered was in an area off from the master bedroom that appeared to be within the exclusive control of Ms. Taylor. Ms. Taylor’s control of this area was bolstered by the fact that neither officer could verify that defendant’s clothes were in the closet where the handgun within the purse was found. In contrast, Ms. Taylor testified that she and the defendant did not share this closet and that defendant’s clothes were kept in a computer room closet.

The recorded jailhouse telephone calls demonstrated that the defendant and Ms. Taylor were greatly concerned about the possibility that defendant might be arrested and returned to prison because Ms. Taylor’s gun was in the residence. However, nothing either said in those calls indicated a general intent by defendant ]uto possess that gun. Even when viewed in a light most favorable to the prosecution, the recorded phone calls, along with all the other evidence, evinced not a general intent by the defendant to possess the gun or exercise dominion and control over it, but rather an intent by the defendant to keep himself separate from the gun.

As noted, the gun belonged to Ms. Taylor. She had a right guaranteed by the Louisiana and United States constitutions to own a firearm and keep it in her home for self-protection. Therefore, although the defendant and Ms. Taylor might have been concerned that he could not reside with her if she had a gun in the residence; that he “told” her at some undetermined time to put the gun in her purse; and they initially denied there was a gun in the house, these factors do not establish beyond a reasonable doubt that the defendant thereby manifested an intent to possess the gun and/or that he exercised dominion and control over the gun.

The due process standard of review under Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. at 2789, does not sanction juror speculation if the evidence is such that a reasonable factfinder must have a reasonable doubt. State v. Higgins, 2003-1980, pp. 17-18 (La.4/1/05), 898 So.2d 1219, 1232, citing State v. Lubrano, 563 So.2d 847, 850 (La.1990). This Court finds that the facts of the present case are analogous to those considered in Fisher, supra and Heacox, supra. The evidence simply does not establish the essential elements of the crime and falls short of proving beyond a reasonable doubt that the defendant was in possession of the gun and had the general intent to possess. Hence, the evidence was insufficient to convict.

hsHaving found that the evidence was insufficient to convict the defendant of being a felon in possession of a firearm, we need not review defendant’s other assignments of error.

Based on the foregoing reasons, defendant’s conviction and sentence are reversed.

CONVICTION AND SENTENCE REVERSED.

LOBRANO, J., Concurs in the Result.


source: Caselaw Access Project

author: WALLER, Chief Justice,

license: Public Domain

text:
    Daniel Luther BEASLEY a/k/a Daniel Beasley a/k/a Daniel L. Beasley v. STATE of Mississippi.
    No. 2012-KA-01595-SCT.
    Supreme Court of Mississippi.
    Jan. 16, 2014.

      Office of State Public Defender by George T. Holmes, Phillip W. Broadhead, attorneys for appellant.
    Office of the Attorney General by Stephanie B. Wood, attorney for appellee.
    Before WALLER, C. J., LAMAR and PIERCE, JJ.
   WALLER, Chief Justice,

for the Court:

¶ 1. Daniel Luther Beasley appeals from the verdict of an Amite County jury finding him guilty of murder. Finding no reversible error, we affirm.

FACTS

¶ 2. Janie Wilkinson owned a beauty salon behind her house in Liberty, Mississippi. She converted the salon into an apartment and allowed her nephew Daniel Beasley to live there. At a family gathering at Wilkinson’s house on Easter weekend of 2011, Wilkinson discussed converting the apartment back into a beauty salon for her granddaughter to operate. Wilkinson told Beasley that he would have to move out of the apartment at some point so she could begin renovations on the salon. Wilkinson later told her son Bill Bag-gett that Beasley had become very upset about having to move out of the apartment.

¶ 3. On May 14, 2011, Wilkinson went to Martha Kello’s house to play cards. When she arrived, she was visibly upset about, an incident with Beasley earlier in the day. Wilkinson had locked herself out of her house earlier in the day, so she asked Beasley to crawl through a window to retrieve the keys. Beasley had felt Wilkinson’s pockets to see if she had actually left the keys in the house, and this apparently had upset Wilkinson. Wilkinson played cards at Kello’s house until approximately 7:00 p.m. and then returned home. This was the last time she was seen alive.

¶ 4. Kello called Wilkinson several times over the next two days, but Wilkinson never answered the phone. Kello became concerned, because she and Wilkinson usually talked on a regular basis, so she called Wilkinson’s sister Mary Artman. Artman had not heard from Wilkinson either.

¶ 5. Kello went to Wilkinson’s house on May 16, 2011, to check on her. She knocked on the front door and did not get an answer. The doors to the house were locked, but she noticed that the lights were on in the back of the house. Kello then went to pick up Artman, who had a spare key to the house, and then returned. Kel-lo and Artman entered the house and found Wilkinson’s dead body wrapped in a comforter in the back bedroom. She was wearing the same clothes she had been wearing at Kello’s house two days earlier. Wilkinson’s head was covered in blood, and blood was splattered on the walls and furniture in the room. Artman testified that she was so upset by the scene that she forgot to call 9-1-1. Instead, Artman called a store where she previously had worked and told them what had happened. An employee at the store then called 9-1-1.

¶ 6. Officer Sean Umbrello of the Liberty Police Department was the first to arrive on the scene. Umbrello described the scene as follows:

Large amount of blood in that room and also the hallway leading back to that room from the kitchen, there was drops of blood in the hall, and they stopped in the kitchen next to a counter where there was a purse on top of the counter.

The police found Wilkinson’s dog dead in a trash can just outside the house. The police did not find evidence of forced entry, and no items had been stolen from the house.

¶ 7. Anna Savrock, a crime-scene investigator with the Mississippi Bureau of Investigation, performed an investigation of Wilkinson’s home and Beasley’s apartment shortly after the first responders arrived. Savrock noticed that Wilkinson’s arm was hanging in the air in an unnatural position due to rigor mortis and determined that Wilkinson’s body probably had been moved between ten and twelve hours after her death. During her investigation of Beasley’s apartment, Savrock found a bloody napkin in a trash can and noticed that the counters in Beasley’s bathroom were still wet. Using a chemical called Blue Star, Savrock found traces of what appeared to be blood in Beasley’s shower. Savrock explained that Blue Star reacts with bleach, as well as blood, but opined that the pattern of particles in Beasley’s shower was not consistent with a cleaning action.

¶ 8. Later that day, police officers found bloody clothes in a dumpster behind the local Exxon station. LaDonna Chapman, a cashier at the Exxon station, testified that she had seen Beasley behind the Exxon station when she was taking trash to the dumpster. In the dumpster, Chapman saw a jacket that Beasley had been wearing earlier. Chapman testified that she recognized Beasley because he came to the Exxon station almost every day. The police collected a blue hooded sweatshirt and gray sweat pants from the dumpster and sent cuttings from each to the Mississippi Crime Laboratory for testing. Joseph Cothern, an officer with the Liberty Police Department, testified that he had seen Beasley wearing these same clothes while he was walking down Main Street in Liberty on May 14, 2011. The blood found on the sweatshirt and sweat pants was determined to be consistent with a reference DNA sample taken from Wilkinson. DNA taken from skin cells found on the inside of the sweat pants was found to be consistent with a reference DNA sample taken from Beasley.

¶ 9. Dr. Mark Levon, chief medical examiner for the State of Mississippi, performed the autopsy of Wilkinson’s body. Dr. Levon indicated that Wilkinson’s body had undergone “post mortem changes,” meaning that she had been dead for some time before she was discovered. Dr. Le-von determined that the cause of Wilkinson’s death was multiple sharp-force trauma, and that the manner of death was homicide. Wilkinson had suffered multiple blunt-force injuries, as well as sixteen “sharp force or cut or chop type injuries made to the head and neck area,” the most severe of which resulted in actual cutting of the skull. While no murder weapon was ever recovered, Dr. Levon indicated that Wilkinson’s injuries could have been caused by a hatchet, ax, or machete. During the autopsy, Dr. Levon discovered that Wilkinson also had sustained some defensive wounds to her hands, indicating that some sort of struggle had taken place before her death.

STATEMENT OF THE CASE

¶ 10. Beasley was arrested and indicted for deliberate-design murder. Beasley’s indictment indicates that the State sought an enhanced penalty for the commission of a felony against a victim over the age of sixty-five. Prior to trial, Beasley filed a motion for mental evaluation to determine his competency to stand trial. The trial court granted this motion and ordered Beasley to undergo a competency examination. After the examination had been conducted, the trial court held a competency hearing and determined that Beasley was competent to stand trial.

¶ 11. A jury trial was conducted in the Circuit Court of Amite County, Mississippi, on September 18-19, 2012. Beasley chose to testify in his own defense. He claimed that, on the day of the murder, he was in his apartment when he heard loud noises coming from Wilkinson’s house. He stated that he became scared and ran into the woods behind the apartment. After fifteen or twenty minutes, Beasley claimed that he returned to Wilkinson’s house and went inside, where he found her dead body lying face-down. Beasley rolled her over to identify her and then moved her away from the back door of the house. Beasley admitted that he put Wilkinson’s dog in a trash can, but he denied killing the dog. He also admitted that he threw his bloody clothes into the dumpster behind the Exxon station. He claimed that he threw his clothes away because he was afraid the clothes would implicate him in the murder. Beasley never contacted the police or medical personnel.

¶ 12. At the conclusion of the trial, the jury returned a unanimous verdict finding Beasley guilty of murder. The court sentenced Beasley to life imprisonment. After the trial court denied Beasley’s post-trial motions, Beasley appealed to this Court, raising the following issues:

I. Did the trial court err in failing to conduct a hearing to determine Beasley’s competency to stand trial?

II. Did the trial court abuse its discretion in admitting cumulative photographs depicting the crime scene and the victim’s autopsy?

III. Did the trial court err in failing to sustain the appellant’s motion for judgment notwithstanding the verdict, or, in the alternative, a new trial?

DISCUSSION

I. Did the trial court err in failing to conduct a hearing to determine Beasley’s competency to stand trial?

¶ 13. A criminal defendant has a constitutional right not to be tried while legally incompetent. See Drope v. Missouri, 420 U.S. 162, 171-72, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). Putting a defendant on trial when his mental state is “so clouded that he cannot remember and intelligently relate what occurred at the time of the commission of the offense, is a denial of due process and contrary to public policy[.]” Emanuel v. State, 412 So.2d 1187, 1188 (Miss.1982). In order to be deemed competent to stand trial, a defendant must have the “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding ... and ... a rational as well as factual understanding of the proceedings against him.” Dusky v. U.S., 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam). This Court will not overturn a trial court’s finding that a defendant is competent to stand trial unless such finding was “manifestly against the overwhelming weight of the evidence.” Martin v. State, 871 So.2d 693, 698 (Miss.2004) (quoting Emanuel, 412 So.2d at 1189).

¶ 14. Our trial courts follow the procedures articulated in Rule 9.06 of the Uniform Rules of Circuit and County Court Practice to determine whether a criminal defendant is competent to stand trial. The rule provides:

If before or during trial the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination by some competent psychiatrist selected by the court....
After the examination the court shall conduct a hearing to determine if the defendant is competent to stand trial. After hearing all the evidence, the court shall weigh the evidence and make a determination of whether the defendant is competent to stand trial. If the court finds that the defendant is competent to stand trial, then the court shall make the finding a matter of record and the case will then proceed to trial.

URCCC 9.06. Simply put, Rule 9.06 “mandates that a competency hearing be conducted following a court-ordered mental examination.” Hearn v. State, 3 So.3d 722, 730 (Miss.2008).

¶ 15. Beasley argues that the trial court violated his constitutional rights by failing to hold an adequate on-the-record hearing to determine his competency to stand trial. This Court has found reversible error where a trial court orders a criminal defendant to undergo a mental evaluation but fails to meet the remaining requirements of Rule 9.06. See Sanders v. State, 9 So.3d 1132, 1139 (Miss.2009); Jay v. State, 25 So.3d 257, 263 (Miss.2009) (reversing and remanding for a new trial subject to a competency hearing, where the record contained no evidence of a competency hearing or explicit findings by the trial court regarding the defendant’s competency to stand trial). However, it is clear from the record that the trial court complied with all requirements of Rule 9.06.

¶ 16. Prior to trial, Beasley’s attorney filed a motion for a mental evaluation to determine whether Beasley was competent to stand trial. The trial court granted the motion, finding that “[t]here is a legitimate question raised of the defendant’s mental competency,” and ordered Beasley to undergo psychiatric evaluation at the Mississippi State Hospital at Whitfield. Beasley was examined by Dr. William C. Lott on September 4, 2012. The trial court then held a competency hearing on September 14, 2012. The trial judge indicated that Dr. Lott had submitted a detailed report to the court and ordered a copy of the report to be admitted as an exhibit at the hearing. In his report, Dr. Lott determined that Beasley “has the sufficient present ability to confer with his attorney with a reasonable degree of rational understanding and he has a good factual and rational understanding of the nature and object of the proceedings against him.” The trial judge asked Beasley’s attorney if he had anything further to present on the issue of competency. Beasley’s attorney replied, “No, Your Honor.” The trial judge asked the same question to Beasley and the prosecutor. Both answered in the negative. The trial court then held:

Let the record show that upon hearing of the — on the motion for the defendant’s competency and the report of Dr. Lott being ordered and admitted into evidence on this hearing, the Court finds that the defendant is competent to stand trial for the reasons set out in Dr. Lott’s report, and therefore, he will be found competent to stand trial.

Beasley’s trial commenced four days later.

¶ 17. We find that the trial court followed all requirements of Rule 9.06 in determining that Beasley was competent to stand trial. Beasley simply chose not to present any witnesses or other testimony to dispute Dr. Lott’s opinion that Beasley was competent to stand trial. The trial court’s determination was not manifestly against the overwhelming weight of the evidence. Accordingly, Beasley’s argument is without merit.

II. Did the trial court abuse its discretion in admitting photographs depicting the crime scene and the victim’s autopsy?

¶ 18. Beasley argues that the trial court erred in allowing the prosecution to “bombard[ ] the jury with photographs of the gruesome murder,” because “this pros-ecutorial ploy inevitably resulted in a fundamentally unfair trial.” Beasley argues that certain photographic exhibits were so unnecessarily gruesome that they could only serve to inflame the passion of the jury.

¶ 19. We find that Beasley’s argument is procedurally barred for lack of contemporaneous objection. Beasley did not object to the admission of any of the State’s twenty-four photographic exhibits. Upon the State’s request to admit each of the now complained-of exhibits, the trial court asked Beasley if he had any objection. Beasley replied, “No, Your Honor,” each time. “This Court has repeatedly held that ‘[i]f no contemporaneous objection is made, the error, if any, is waived.’ ” Walker v. State, 671 So.2d 581, 597 (Miss.1995) (quoting Cole v. State, 525 So.2d 365, 369 (Miss.1987)). See Barfield v. State, 22 So.3d 1175, 1180-81 (Miss.2009) (applying the procedural bar to defendant’s claim that gruesome photographs admitted into evidence were unfairly prejudicial; failure to object at trial barred consideration of the issue on appeal). Beasley waived his claim of error regarding the photographs by failing to object to their admission at trial.

¶ 20. Beasley admits that he failed to object to the admission of the crime-scene and autopsy photographs at trial. Nevertheless, he argues that the trial court’s decision to admit these photographs into evidence was plain error. See Foster v. State, 639 So.2d 1263, 1289 (Miss.1994) (citing Gray v. State, 487 So.2d 1304, 1312 (Miss.1986) (“The defendant who fails to make a contemporaneous objection must rely on plain error to raise the assignment on appeal.”)). The plain-error doctrine is implicated when an error occurs at trial which affects substantial rights and results in “a manifest miscarriage of justice.” Gray v. State, 549 So.2d 1316, 1321 (Miss.1989). Thus, procedural bar notwithstanding, we will discuss the merits of this issue to determine whether the introduction of these exhibits denied Beasley his right to a fair trial.

¶ 21. This Court reviews the admission of photographs for abuse of discretion, but the trial court’s discretion in deciding whether to allow the admission of photographs “runs toward almost unlimited admissibility.” Williams v. State, 544 So.2d 782, 785 (Miss.1987). Even if the photograph is “gruesome, grisly, unpleasant, or even inflammatory,” it still may be admitted so long as it has “probative value and its introduction serves a meaningful evidentiary purpose.” Noe v. State, 616 So.2d 298, 303 (Miss.1993) (string citation omitted). A photograph has a “meaningful evidentiary purpose” when it aids in describing the circumstances of the killing, describes the location of the body and cause of death, or supplements or clarifies witness testimony. Westbrook v. State, 658 So.2d 847, 849 (Miss.1995) (citations omitted).

¶ 22. At trial, the State sought to admit a set of photographs depicting the scene of the crime. Specifically, the State presented Exhibits 8 and 9 during the testimony of Ellis Hollingsworth, a Mississippi Highway Patrol officer, to help describe the location and condition of Wilkinson’s body when she was discovered. The photographs were taken at different angles. Exhibit 8 is a low-angle shot of Wilkinson’s upper body. Exhibit 9 was taken from directly over Wilkinson’s body and more clearly depicts her face.

¶ 23. The State also introduced photographs from Wilkinson’s autopsy, depicting Wilkinson’s specific injuries. Specifically, Exhibits 25, 26, and 27 were admitted during the testimony of Dr. Mark Levon, the medical examiner who performed Wilkinson’s autopsy. Exhibit 25 depicts the back of Wilkinson’s head and shows several significant gashes on her scalp. Exhibit 26, which was taken after Wilkinson’s head had been shaved, allows a better view of the wounds. Exhibit 27 is similar to Exhibit 26 but is more centered on the back of Wilkinson’s head.

¶ 24. In support of his argument that the admission of these photographs was error, Beasley relies on McNeal v. State, 551 So.2d 151 (Miss.1989), where this Court reversed a criminal defendant’s murder conviction based on the admission of certain photographic exhibits. The photographs introduced by the State in McNeal were described by this Court as “some of the most gruesome photographs ever presented to this Court.” Id. at 159. Specifically, the life-sized, full-color photographs depicted the victim’s nude and partially decomposed body, including a full-color, close-up view of the victim’s decomposed, maggot-infested skull. Id. This Court held that, in deciding whether to admit particularly graphic photographs into evidence, the trial court must consider: “(1) whether the proof is absolute or in doubt as to identity of the guilty party, as well as, (2) whether the photographs are necessary evidence or simply a ploy on the part of the prosecutor to arouse the passion and prejudice of the jury.” Id. While the State argued that the photographs were necessary to prove the manner of the victim’s death, this Court found that they had little or no evidentiary value when compared with their tendency to inflame and prejudice the jury. Id. This Court could not say that the admission of the photographs did not substantially and adversely affect the defendant’s right to a fair trial. Id. at 160 (citing Miss. R. Evid. 103).

1125. Notwithstanding the procedural bar, we find that Beasley’s claim is without merit. While some of the photographs are particularly graphic, even the McNeal Court reasoned that “we do not presume to conclude that every gruesome photograph admitted into evidence constitutes an abuse of discretionf.]” Id. at 159. “Some probative value is the only requirement needed in order to support a trial judge’s decision to admit photographs into evidence.” Chamberlin v. State, 989 So.2d 320, 340 (Miss.2008) (emphasis added) (quoting Jones v. State, 920 So.2d 465, 476-77 (Miss.2006)). Unlike the photographs in McNeal, the challenged photographs in this case had probative evidentiary value, as they described the circumstances and location of the killing, illustrated the cause and manner of Wilkinson’s death, and supplemented the testimony of several witnesses.

¶ 26. Exhibits 8 and 9 described the circumstances of the killing and the location of the body and were used to supplement the testimony of the officers who found Wilkinson’s body. “[T]his Court has consistently allowed photographic evidence to support the testimony of witnesses ... who described the scene upon their respective arrivals.” McFee v. State, 511 So.2d 130, 135 (Miss.1987) (citations omitted). See Parker v. State, 119 So.3d 987, 993 (Miss.2013) (holding that trial court did not abuse its discretion in admitting photographs of murder scene and victim’s gunshot wounds, even though defendant admitted to shooting the victim, since the photographs “described the location of the body” and “supplemented or clarified” the investigating officer’s testimony). In addition, Exhibits 25, 26, and 27 supplemented Dr. Levon’s opinions regarding the cause and manner of death. These exhibits aided the State in proving an essential element of the crime — that Wilkinson was murdered with deliberate design. Deliberate design may be proved or inferred from the use of a deadly weapon. See Higgins v. State, 725 So.2d 220, 224 (Miss.1998) (citations omitted). Because no murder weapon was ever recovered, Exhibits 25, 26, and 27 were necessary to supplement Dr. Levon’s opinion that Wilkinson’s fatal injuries were caused by a hatchet, ax, or machete, any of which the jury could have considered to be a deadly weapon when used to inflict the wounds depicted in the photographs.

¶ 27. Because the challenged exhibits had evidentiary value in describing the scene of the crime and the manner of the victim’s death, and notwithstanding the procedural bar, we find that the trial court did not abuse its discretion in admitting the State’s photographic exhibits.

III. Did the trial court err in failing to sustain the appellant’s motion for judgment notwithstanding the verdict, or, in the alternative, a new trial?

¶ 28. After the jury reached its verdict, Beasley filed a motion for judgment notwithstanding the verdict (JNOV), or, in the alternative, a new trial. The trial court denied this motion. On appeal, Beasley argues that evidence presented against him was legally insufficient to establish that he murdered Wilkinson. Alternatively, he argues that the jury’s verdict is against the overwhelming weight of the evidence. “The standard of review for a post-trial motion is abuse of discretion.” Dilworth v. State, 909 So.2d 731, 736 (Miss.2005) (citing Howell v. State, 860 So.2d 704, 764 (Miss.2003)).

A. Whether Beasley is entitled to JNOV.

¶ 29. “A motion for [JNOV] challenges the legal sufficiency of the evidence.” Ivy v. State, 949 So.2d 748, 751 (Miss.2007) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)). “[T]he critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed[.]’” Id. (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). In reviewing the sufficiency of the evidence, this Court will view all evidence in the light most favorable to the verdict. Bush v. State, 895 So.2d 836, 843 (Miss.2005). If this Court determines that “reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,” this Court will hold that the evidence was legally sufficient to support the jury’s verdict. Edwards v. State, 469 So.2d 68, 70 (Miss.1985). The instant case was a “circumstantial-evidence case,” as Beasley did not confess to the crime, nor were there any eyewitnesses to the crime. See Jones v. State, 918 So.2d 1220, 1234 (Miss.2005) (citations omitted). Thus, the State had the burden of proving Beasley’s guilt “not only beyond a reasonable doubt, but to the exclusion of every reasonable hypothesis consistent with innocence.” Leflore v. State, 535 So.2d 68, 70 (Miss.1988) (citing Guilbeau v. State, 502 So.2d 639, 641 (Miss.1987)). A conviction based on circumstantial evidence will not be disturbed unless it is opposed by a “decided preponderance of the evidence.” Id.

¶ 30. Beasley was charged with murder in violation of Section 97-3-19(l)(a) of the Mississippi Code, which provides “The killing of a human being without the authority of law by any means or in any manner shall be murder ... [w]hen done with deliberate design to effect the death of the person killed, or of any human being....” Miss.Code Ann. § 97-3-19(l)(a) (Rev.2006). In order to convict Beasley of murdering Wilkinson, the State was required to prove that Beasley: (1) killed Wilkinson; (2) without authority of law; and (3) with deliberate design to effect her death. Id. See also Dilworth, 909 So.2d at 736. It is undisputed that the State proved that Wilkinson was the victim of a homicide. However, Beasley argues that the State failed to present sufficient evidence proving that he was Wilkinson’s killer, or that he acted with deliberate design to effect her death.

¶ 31. Turning to the evidence in this case, we find that the State presented sufficient evidence proving that Beasley killed Wilkinson. Witnesses for the State testified without objection that Wilkinson had told them that Beasley was upset with her for making him move out of the apartment, where he had lived rent-free for more than a year. Beasley also was able to enter Wilkinson’s house without a key. This fact could have allowed the jury to rule out an unknown intruder as the killer, since the doors to Wilkinson’s house were still locked when she was found, and since there was no evidence of forced entry or theft. On the last day she was seen alive, Wilkinson was visibly upset about a dispute with Beasley. Beasley admitted to discarding blood-stained clothes into a dumpster at a local gas station, and a DNA sample taken from the blood was consistent with Wilkinson’s DNA.

¶ 32. We also find that the State presented sufficient evidence showing that Beasley acted with deliberate design. As previously noted, deliberate design may be proved or inferred from the use of a deadly weapon. Higgins, 725 So.2d at 224 (Miss.1998) (citations omitted). The existence of a deadly weapon is a question of fact for the jury to decide. Davis v. State, 530 So.2d 694, 702 (Miss.1988) (citing Duckworth v. State, 477 So.2d 935, 938 (Miss.1985)). The crime-scene photographs presented by the State clearly illustrate the scene of a brutal murder. Dr. Levon indicated that Wilkinson had suffered sixteen separate traumatic injuries, including several severe cutting-type injuries to the skull likely caused by an ax, hatchet, or machete. Dr. Levon also indicated that Wilkinson had suffered several defensive-type wounds to her hands, suggesting that a struggle had taken place. Although the jury was instructed on manslaughter, the evidence produced at trial could lead the jury only to the conclusion that Wilkinson was deliberately murdered.

¶ 33. Having reviewed the evidence in the light most favorable to the State, we find that jury’s verdict is not opposed by a “decided preponderance of the evidence,” nor is it “based on no evidence whatsoever,” which would require reversal of his conviction. Kitchens v. State, 300 So.2d 922, 927 (Miss.1974). Beasley’s testimony conflicted with the scientific evidence presented by the State. Beasley claimed that he had found and moved Wilkinson’s body about fifteen or twenty minutes after hearing a commotion inside Wilkinson’s house. However, after examining Wilkinson’s body, Savrock opined that the body likely was moved after rigor mortis had set in, ten to twelve hours after Wilkinson’s death. Beasley also never explained why he allegedly ran into the woods after hearing screams coming from Wilkinson’s house, or why he never contacted the police or medical personnel after finding Wilkinson’s body. Circumstantial evidence need not exclude every “probable doubt,” but only every other “reasonable” hypothesis of innocence. Tolbert v. State, 407 So.2d 815, 820 (Miss.1981). After hearing the evidence, the jury reasonably could have rejected Beasley’s testimony as an unreasonable hypothesis of innocence.

¶ 34. In sum, we find that the evidence presented by the State was legally sufficient to allow the jury to find Beasley guilty of deliberate-design murder beyond a reasonable doubt and to the exclusion of all reasonable hypotheses consistent with innocence. Accordingly, the trial court did not err in denying Beasley’s motion for JNOV.

B. Whether Beasley is entitled to a new trial.

¶ 35. A motion for new trial challenges the weight of the evidence. Sheffield v. State, 749 So.2d 123, 127 (Miss.1999). In reviewing a challenge to the weight of the evidence, this Court -will overturn a verdict only “when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844. See also Amiker v. Drugs for Less, Inc., 796 So.2d 942, 947 (Miss.2000) (holding that a motion for a new trial is addressed to the discretion of the court and should be granted only “in exceptional cases in which the evidence preponderates heavily against the verdict.”). As with challenges to the sufficiency of the evidence, this Court views all evidence in the light most favorable to the verdict. Id. Factual disputes are properly resolved by a jury and do not mandate a new trial. Temple v. State, 498 So.2d 379, 382 (Miss.1986).

¶ 36. While Beasley claims that the evidence presented by the State is “unsubstantiated” or “unconvincing,” his specific arguments merely challenge the credibility of the State’s witnesses. It is not for this Court to pass on the credibility of witnesses, for that is a jury function. Bond v. State, 249 Miss. 352, 162 So.2d 510, 512 (1964) (citation omitted). The jury in this case was presented with two opposing versions of the circumstances surrounding Wilkinson’s death. The State presented significant circumstantial evidence portraying Beasley as Wilkinson’s murderer. In response, Beasley took the stand in an attempt to rationalize the State’s damning evidence, and his testimony is the only evidence inconsistent with the jury’s verdict. The jury was free to accept the testimony of some witnesses and reject that of others, and this Court “need not determine with exactitude which witness or what testimony the jury believed or disbelieved in arriving at its verdict.” Brown v. State, 796 So.2d 223, 227 (Miss.2001) (citations omitted). In this case, it is clear that the jury accepted the State’s witnesses and evidence and rejected Beasley’s testimony. Allowing the jury’s verdict to stand in this case would not “sanction an unconscionable injustice,” as the evidence does not “preponderate heavily against the verdict.” Bush, 895 So.2d at 844. Accordingly, we find that the trial court did not err in denying Beasley’s motion for a new trial.

CONCLUSION

¶ 37. For the foregoing reasons, we affirm the jury’s verdict finding Beasley guilty of murder and the judgment and sentence of the Amite County Circuit Court.

¶ 38. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CONDITIONS, AFFIRMED.

DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . Investigators found a hatchet under a bed in another room of the house, but they determined that the hatchet had not been recently used. Investigators also noticed that a knife was missing from the block in Wilkinson’s kitchen. The knife was never recovered.


author: DICKINSON, Presiding Justice,

text:
    Annye C. ANDERSON, as Personal Representative and Legatee of the Estate of Carrie H. Thompson, Deceased; and Robert M. Harris, Legatee of the Estate of Carrie H. Thompson, Deceased v. Stephen C. LaVERE, Delta Haze Corporation, a Nevada Corporation; Sony Music Entertainment, Inc., a Delaware Corporation, and Claud L. Johnson.
    No. 2012-CA-00601-SCT.
    Supreme Court of Mississippi.
    Feb. 20, 2014.

      James W. Shelson, Reuben V. Anderson, Jackson, Robert Gregg Mayer, Stephen E. Nevas, attorneys for appellant.

      Richard A. Oakes, Greenwood, Anthony Kornarens, Anita K. Modak-Truran, John W. Kitchens, attorneys for appellee.
    Before DICKINSON, P.J., CHANDLER and PIERCE, JJ.
   DICKINSON, Presiding Justice,

for the Court:

STATEMENT OF THE CASE

¶ 1. Legendary blues musician Robert Johnson died in 1938 without a will. The legatees of Johnson’s deceased half-sister sought to recover royalties and fees from the use of two photographs of Johnson. Among the several reasons the trial court denied their claim was that the statute of limitations had expired. We affirm.

FACTS

¶ 2. When Johnson died intestate on August 16, 1938, he had no money and appeared to have left no assets to distribute to his heirs, so no estate was opened at that time. But the increasing popularity of Johnson’s music over the years following his death led Steven LaVere, a music producer from Tennessee who owns Delta Haze Corporation, to contact Johnson’s half-sister, Carrie Thompson, about previously unpublished photographs of Johnson. Believing Thompson to be Johnson’s only heir, LaVere requested a meeting with Thompson to discuss possibly using the photographs to launch a new release of Johnson’s music.

¶ 3. On June 12, 1973, Thompson met with LaVere and showed him a photo taken by Hooks Brothers Photography in Memphis, Tennessee, which depicted Johnson wearing a pin-striped suit, fedora hat, and polished dress shoes, while holding his Gibson guitar. Thompson allowed LaVere to take this photo — later to become known as the “Hooks Brothers” photograph — to have negatives made.

¶ 4. On LaVere’s second visit, Thompson showed him a different photograph that depicted Johnson in front of a curtain with a cigarette in his mouth, holding a Gibson guitar. This photograph — which appears to be a self-portrait taken at a photo booth in the 1930s — later became known as the “dime store photo.”

¶ 5. Sony Music Entertainment, Inc. (“Sony”) — owner of the master of Johnson’s recordings — already had published albums of Johnson’s music. Based on the discovery of the photographs and biographical information of Johnson’s life, LaVere pitched the idea of rereleasing Johnson’s music to John Hammond, then vice-president of Sony. LaVere initiated these discussions with Sony in the summer of 1973.

¶ 6. LaVere’s negotiations with Sony prompted negotiations between LaVere and Thompson, through counsel. On June 25, 1974, Thompson appointed LaVere as her agent, granting him the right

to do any and all things necessary, and to execute any and all documents, contracts, file copyrights, and institute litigation and any and all other things necessary or proper to protect my rights or the rights of my deceased brother.

¶ 7. Thompson’s attorney drafted this agreement to allow LaVere to continue negotiations with Sony pertaining to the rerelease of Johnson’s recordings. Then, on November 20, 1974, LaVere and Thompson entered into a comprehensive agreement (“the 1974 Agreement”), which included a royalties and fees provision.

¶ 8. The 1974 Agreement stated that Thompson, as Johnson’s known living heir, agreed to transfer to LaVere “all of her right, title and interest, including all common law and statutory copyrights, in and to the musical works and recordings of Robert L. Johnson, a photograph of Robert L. Johnson taken by Hooks Brothers Photography in Memphis, Tennessee ... [and] a small photograph of Johnson with a guitar.... ” But Thompson, her heirs and assigns, would retain ownership and possession of all original photographs.

¶ 9. In return, LaVere agreed to “use his best efforts to obtain commercial utilization of such photograph or photographs and memorandum in conjunction with the recordings of and or by Robert L. Johnson as well as in books, magazines or other media, and to take all steps necessary to register or protect the statutory copyright,” and he would pay Thompson fifty percent of all royalties collected by him.

¶ 10. This 1974 Agreement also stated that Thompson was “acting upon the representations to the effect that she is the nearest next of kin of Robert L. Johnson. ... She understands and agrees that in the event that there are other heirs of Robert L. Johnson who would have a right to the payment of such sums, she shall be responsible for the payment....”

¶ 11. After Thompson and LaVere finalized the 1974 Agreement, Sony entered into a separate and independent contract with LaVere and Thompson dated November 21, 1974 (“the CBS agreement”). In this agreement, Thompson and LaVere agreed to assign their rights in Johnson’s music, as well as their rights in two photographs, services, artwork, and biographical information to be used in conjunction with the release of the album Robert Johnson: The Complete Recordings (“The Complete Recordings ”). Sony agreed to pay all royalties and fees to LaVere, but it never agreed to pay Thompson any royalties or fees directly. Instead, LaVere was responsible for paying to Thompson any money generated from the CBS agreement, in accordance with the terms of the 1974 agreement.

¶ 12. After that, the project stalled, but LaVere continued to push Sony to release The Complete Recordings, and the album finally debuted on August 28, 1990. The album sold more than one million copies and, as of 2009, Thompson’s royalty agreement with LaVere had generated more than one and half million dollars. Sony paid all money due and owing under the CBS agreement to LaVere.

¶ 13. Thompson passed away in February 20,1983, leaving her estate to her half-sister, Annye Anderson, and her grandson, Robert Harris. Then in 1989, her legatees — Anderson and Harris — opened Johnson’s estate in Leflore County. When the estate was opened, Anderson and Harris believed they were the sole heirs to the Johnson estate. But in the years to follow, litigation ensued to determine the legal heirs of Johnson’s estate and, in 1998, the chancery court entered a final judgment proclaiming Claud Johnson, Johnson’s biological son, as the sole heir of the estate.

¶ 14. Prior to the chancery court naming Claud Johnson as Johnson’s sole heir, Anderson, as the adminstratrix of Johnson’s estate, swore under oath that the photographs and copyrights of the photographs belonged to the Johnson estate. Anderson also submitted accountings listing the photographs as assets of Johnson’s estate, and she requested payment for her duties as adminstratrix based on a percentage of the estate’s total assets, which included the photographs.

¶ 15. Then, in 1991 the chancellor appointed Willis B. Brumsfield administrator of Johnson’s estate. Brumsfield entered into an agreement with LaVere, on behalf of the estate, ratifying both the 1974 agreement and the CBS agreement. LaV-ere then paid all royalties and fees due and owing under the agreements to the Johnson estate. As of March 22, 1999, the property of the Johnson estate was transferred to Claud Johnson.

¶ 16. Anderson and Harris now assert that the photographs belonged to Thompson, personally, and not to Johnson’s estate. While Anderson and Harris do not dispute that the copyrights in Johnson’s musical compositions belong to Claud Johnson, they argue that, as the heirs of Thompson, they are entitled to the fees generated from the Johnson photographs, as those were Thompson’s personal property.

PROCEDURAL HISTORY

¶ 17. Anderson and Harris filed a complaint against Claud Johnson, Stephen LaVere, Delta Haze, and Sony, asserting claims of fraud, misrepresentation, concealment, conversion, unjust enrichment, unfair competition and business practice, and breach of fiduciary duty. They also asserted a breach-of-contract claim against LaVere.

1118. The complaint was filed in Hinds County, but Claud Johnson moved the court for a change of venue, which it granted. The trial court allowed Anderson and Harris to continue the action in either Copiah County, where Claud Johnson lived, or Leflore County, where Johnson’s estate was administered. Anderson and Harris filed an interlocutory appeal of the transfer order, which this Court denied on November 29, 2000. Anderson and Harris then chose to transfer to Leflore County.

¶ 19. On January 31, 2001, the LaVere defendants moved for a dismissal of the claims, or, in the alternative, for summary judgement. On August 8, 2001, Sony joined that motion. Without addressing three alternative arguments, the trial court granted the motion for summary judgment on the basis of res judicata. We reversed and remanded the case to the Leflore County Circuit Court.

¶ 20. On January 4, 2005, the LaVere defendants moved to dismiss or, in the alternative, for summary judgment on the defenses not originally adjudicated, and Sony joined this motion. This circuit court took no action on this motion for six years.

¶ 21. Then, on January 21, 2011, Sony awoke the lawsuit by moving for approval of a license to use the photographs of Johnson for a new compilation of Johnson’s music called The Centennial Collection, which was to be a tribute to Johnson’s 100th birthday. Sony sought permission among all parties to use the photographs in the packaging of this album, subject to a licensing fee which would be held by Sony until resolution of this dispute. LaVere and Claud Johnson agreed, but Anderson and Harris did not, so Sony filed an Emergency Motion for a License, which the trial court granted.

¶ 22. In April 2011, both Sony and the LaVere defendants filed separate supplemental motions for summary judgment. Claud Johnson joined Sony’s motion. Anderson and Harris then filed a motion for partial summary judgment against the LaVere defendants. The trial court granted the LaVere defendants’ motion to renew defenses not adjudicated in their motion for summary judgment, eventually holding that the doctrines of laches, judicial estoppel, and collateral estoppel precluded all of the plaintiffs’ claims.

¶ 23. The trial court also granted Sony’s supplemental motion for summary judgment — which was joined by Claud Johnson, and the LaVere defendants’ supplemental motion for summary judgment, finding that the claims also were time-barred. The trial court entered judgment orders against Anderson and Harris and denied any remaining motions. Anderson and Harris now appeal, arguing that the trial court improperly granted all of the defendants’ motions for summary judgment.

DISCUSSION

¶ 24. We apply a de novo standard of review to the trial court’s ruling on summary judgment. Summary judgment is appropriate only when there is no genuine issue of material fact. If there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in that movant’s favor. In considering a motion for summary judgment, courts view the evidence in the light most favorable to the nonmoving party. Although appellants raise several issues, we shall address only the statute of limitations, which we find to be dispositive.

Anderson and Harris failed to argue waiver of the state statute-of-limitations defenses in the trial court.

¶ 25. In granting the motions for summary judgment, the trial court ruled that Anderson’s and Harris’s claims were time-barred by the Federal Copyright Act’s statute of limitations and Mississippi’s general, three-year statute of limitations. In their brief, Anderson and Harris argued that the LaVere defendants had waived both their preemption and their Federal Copyright Act affirmative defenses by failing to timely raise and pursue them, as required under this Court’s case-law.

¶ 26. At oral argument, Anderson and Harris expanded their position, asserting that the LaVere defendants, Sony, and Claud Johnson had waived the right to argue any statute of limitations as an affirmative defense. After requesting supplemental briefing on this issue, we find that the Anderson and Harris are procedurally barred from making this broader argument on appeal.

¶ 27. This Court has held that “absent extreme and unusual circumstances— an eight-month unjustified delay in the asserting and pursuing a dispositive affirmative defense, coupled with active participation in the litigation process, constitutes waiver as a matter of law.” In order to raise such an argument before this Court, however, Anderson and Harris must have first raised this argument in the trial court — which they did not. We will not consider issues raised for the first time on appeal.

¶ 28. At the inception of this litigation in 2000, Claud Johnson and Sony asserted all applicable statutes of limitations as affirmative defenses. Similarly, in their answer, the LaVere defendants averred that the statute of limitations in Section 15-1-1, et seq., of the Mississippi Code barred Anderson’s and Harris’s claims. While the LaVere defendants, Sony, and Claud Johnson did not pursue the statute of limitations as a defense for some time, Anderson and Harris did not argue waiver.

¶29. Then, in April 2011, the LaVere defendants filed a supplemental motion for summary judgment, adding both federal preemption and the Federal Copyright Act statute of limitations as affirmative defenses. In response to this motion, Anderson and Harris — for the first time — argue waiver. Anderson and Harris, however, argue that waiver applied only to the LaV-ere defendants, and only to the federal preemption and the copyright statute of limitations defenses. But, in their response to the LaVere defendants’ supplemental motion, Anderson and Harris concede that the LaVere defendants properly pleaded and did not waive their right to assert the state statute of limitations under Section 15-1-49.

¶ 30. Anderson and Harris, however, argue that the trial court already found that they did not waive their right to object to the LaVere defendants’ untimely assertion of affirmative defenses. After filing their supplemental motion for summary judgment, the LaVere defendants filed a “motion seeking determination that plaintiffs have waived the right to object to the assertion of additional defenses by defendants LaVere and Delta Haze, or in the alternative, for leave to amend answer to assert additional defenses.” In response, the trial court issued an order ruling that Anderson and Harris did not waive their right to object to the LaVere defendants’ addition of two new affirmative defenses— federal preemption and the copyright act statute of limitations. The trial court then granted the LaVere defendants leave to amend their original answers to include these defenses. This ruling clearly applied only to the addition of any affirmative defenses not originally pleaded in the LaV-ere defendants’ answers, and therefore does not include the three-year state statute of limitations, which all defendants pleaded in their original answers.

¶ 31. The record indicates that, prior to oral argument before this Court, Anderson and Harris never asserted that the LaVere defendants, Sony, and Claud Johnson had waived the state statute of limitations as an affirmative defense. We therefore must find, consistent with our longstanding caselaw, that Anderson and Harris are barred from raising this argument for the first time on appeal. Further, because we find the state statute of limitations controls this case, it is unnecessary to address whether the trial court properly allowed the LaVere defendants to raise federal preemption and the Federal Copyright Act statute of limitations eleven years into the litigation.

Anderson and Harris failed to file suit within the statute of limitations.

¶ 32. Section 15-1-49 states that “[a]ll actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.” Anderson and Harris do not dispute that Section 15-1-49 is the controlling statute of limitations which applies to claims of fraud, misrepresentation, concealment, breach of fiduciary duty, conversion, unjust enrichment, unfair competition and business practice, and breach of contract. Thus, Section 15 — 1— 49 clearly governs all of Anderson’s and Harris’s claims.

¶33. Under Section 15-1-49, the three-year statute of limitations begins to run when the cause of action accrues, and we have held that the “cause of action accrues when it comes into existence as an enforceable claim, that is, when the right to sue becomes vested.” The trial court found that Anderson’s and Harris’s claims accrued no later than August 29, 1990, when they learned that Sony intended to release The Complete Recordings using the photographs. And Anderson and Harris filed their complaint in 2000 — long after the three-year statute of limitations expired. Anderson and Harris assert, however, that the statute of limitations was tolled by this Court’s holding in LaVere 7, and that their claims did not accrue until October 15, 1998, when the chancery court adjudicated Claud Johnson sole heir of the Johnson estate.

¶ 34. In LaVere I, we stated that Anderson and Harris had no obligation to litigate ownership of the photographs in the Johnson estate heirship proceeding. Anderson and Harris argue that this statement tolled the statute of limitations for all of their claims arising out of the ownership of the photographs until after the conclusion of the heirship proceeding in 1998. We disagree.

¶ 35. In LaVere I, we merely held that Anderson and Harris were under no obligation to litigate, nor could they litigate, ownership of the photographs in the heir-ship proceedings. Our holding in no way tolled the statute of limitations on any claims they may have had against the LaVere defendants over ownership of the photographs. Anderson and Harris could have brought a separate civil action asserting their claims.

¶ 36. Also, we note that during the heirship proceedings, Anderson and Harris did not claim the photographs belonged to Thompson. Rather, they claimed the photographs were assets of the Johnson estate. They assert that they did not bring a separate action because they thought they were the only heirs to the Johnson estate, and thus they were entitled to the photographs as Johnson’s heirs. So, only after losing the estate case did Anderson and Harris bring a separate action claiming that Thompson — and not the estate— owned the photographs. This strategy cannot serve to toll the statute of limitations.

¶ 37. Though it is likely, as the trial court ruled, that Anderson and Harris discovered their cause of action in 1990 when they learned of Sony’s upcoming release of The Complete Recordings, there is no question that they were aware of their injury — and their claims against all appel-lees — at the latest in 1991, when LaVere began paying all royalties and fees under the 1974 agreement to the Johnson estate, rather than to Thompson’s estate. Claiming to be Johnson’s sole heirs, both Anderson and Harris were parties to all of the Johnson estate proceedings. Indeed, Anderson and Harris opened Johnson’s estate, and Anderson acted as the Adminis-tratrix of that estate until 1991. Anderson obviously was aware that LaVere had made royalty payments to the Johnson estate, rather than the Thompson estate, since it was Anderson who listed the photographs as assets of the Johnson estate.

¶ 38. Additionally, Anderson and Harris — as Thompson’s legatees — knew in 1991 that Thompson’s estate had not been paid any money earned from the use of the pictures. Neither Anderson nor Harris disputes that he or she knew the funds were being paid to the Johnson estate. Instead, they argue that, since they believed themselves to be Johnson’s heirs and entitled to the profit from the pictures through Johnson’s estate, there was no need to make the claim. We must reject this argument. We find that Anderson’s and Harris’s cause of action accrued, at the latest, in 1991, when LaVere began paying royalties and fees to the Johnson estate. Therefore, Anderson’s and Haris’s claims are time-barred under the three-year statute of limitations in Mississippi Code Section 15-1-49.

CONCLUSION

¶ 39. We find that Anderson’s and Harris’s claims are barred by the three-year statute of limitations in Section 15-1-49, so we affirm the trial court’s grant of summary judgment.

¶ 40. AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., LAMAR, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR. KITCHENS, J., NOT PARTICIPATING.

      . Johnson originally recorded his masters with American Record Company in 1936 and 1937. A few years later, Columbia Broad Casting Systems (“CBS”) purchased American Record Company. Thereafter, Sony Music purchased CBS. Throughout these acquisitions, Johnson’s masters changed ownership to each acquiring company, leaving Sony the current owner.

      . Though at this point in time Sony was known as CBS, Sony later purchased CBS. For purposes of clarity, CBS will be referred to as Sony, since Sony now stands in the place of CBS and is party to this lawsuit.

      . Issues included a Robert Johnson impersonator claiming royalties from the music; a rumor that Johnson had a wife and child, bringing into question whether Thompson was Johnson’s lawful heir; and a threatened lawsuit from Mack McCormick, who claimed a contractual right to the photographs.

      . Stephen LaVere owns Delta Haze. Further, Delta Haze and LaVere have jointly submitted briefs and arguments throughout all of this litigation. Thus, "the LaVere defendants” will be used to refer to Delta Haze and LaV-ere collectively.

      . Indem. Ins. Co. of N. Am. v. Guidant Mut. Ins. Co., 99 So.3d 142, 149 (Miss.2012).

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

      . Chisolm v. Miss. Dep't of Transp., 942 So.2d 136 (Miss.2006).

      . 17 U.S.C. § 507 (West, Westlaw through P.L. 113-74 (excluding P.L. 113-66 and 113-73) approved 1-16-14.).

      . Miss.Code Ann. § 15-1-49 (Rev.2012).

      . See Meadows v. Blake, 36 So.3d 1225 (Miss.2010).

      . MS Credit Ctr., Inc. v. Horton, 926 So.2d 167, 180 (Miss.2006).

      . Flagstar Bank, FSB v. Danos, 46 So.3d 298, 311 (Miss.2010) (stating “we need not consider this issue, which has been raised for the first time on appeal”) (citing Alexander v. Daniel, 904 So.2d 172, 183 (Miss.2005)).

      . Boyles v. Miss. State Oil & Gas Bd., 794 So.2d 149, 153 (Miss.2001) ("It is a well-settled proposition that this Court will not review matters on appeal that were not considered by the lower court.”).

      . It should be noted that, in their brief, Anderson and Harris argued that the constructive-trust statute of limitations under Mississippi Code Section 15-1-39 controlled their claim for unjust enrichment. At oral argument, however, Anderson and Harris informed the Court that they were abandoning their constructive-trust argument. Thus, we will not consider the ten-year, constructive-trust statute of limitations.

      . Fletcher v. Lyles, 999 So.2d 1271, 1276 (Miss.2009) (This Court applied the three-year statute of limitations to fraud, negligence, and breach-of-contract claims.).

      . CitiFinancial Mortgage Co. v. Washington, 967 So.2d 16, 17 (Miss.2007) (This Court applied the three-year limitations period to breach of fiduciary duty, breach of implied covenant of good faith and fair dealing, fraudulent misrepresentation, and breach of contract.).

      . Carter v. Citigroup, 938 So.2d 809, 817 (Miss.2006) (citing Stephens v. Equitable Life Assurance Soc.’y of U.S., 850 So.2d 78, 82 (Miss.2003)) (holding that "this Court has also applied the three-year statute of limitations [in Mississippi Code Section 15-1-49] for fraudulent concealment, negligent hiring, and concealment)”.

      . Carter, 938 So.2d at 817 (citing Am. Bankers’ Ins. Co. v. Wells, 819 So.2d 1196, 1200 (Miss.2001) (holding that "there is a three year statute of limitations [in Mississippi Code Section 15-1-49] for claims of breach of a fiduciary duty, misrepresentation, and conspiracy”)).

      . Estate of Martin Luther King Jr., Inc. v. Ballou, 856 F.Supp.2d 860, 863 (S.D.Miss.2012) (holding that "claims for conversion and replevin are governed by Mississippi's residual statute of limitations [Mississippi Code Section 15-1-49] ...").

      . Miss.Code Ann. § 15-1-49(1) (Rev.2012) ("All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.”).

      . Id.

      . CitiFinancial Mortgage, 967 So.2d at 17 (This Court applied Section 15-1-49 to plaintiff’s breach-of-contract claim.).

      . Miss.Code Ann. § 15-1-49(1) (Rev.2012).

      . Bullard v. Guardian Life Ins. Co. of Am., 941 So.2d 812, 815 (Miss.2006) (quoting Forman v. Miss. Publishers Corp., 195 Miss. 90, 14 So.2d 344, 346 (1943)).

      . Anderson v. LaVere, 895 So.2d 828 (Miss.2004).

      . Id. at 836.

      . Id. at 836.