source: Caselaw Access Project

license: Public Domain

text:
    GGNSC BATESVILLE, LLC d/b/a Golden Living Center-Batesville and Batesville Hospital Management, Inc. d/b/a Batesville Specialty Hospital, Inc. v. Catherine JOHNSON, individually, and as Administratrix for the Estate of Mose Cooper, and Anthony Cooper, on behalf of the Wrongful Death Beneficiaries for Mose Cooper.
    No. 2011-CA-01337-SCT.
    Supreme Court of Mississippi.
    March 21, 2013.

      L. Bradley Dillard, Tupelo, William G. Armistead, L. Carl Hagwood, Jackson, Mary Frances Stallings-England, Green-ville, attorneys for appellants.
    James Howard Thigpen, attorney for appellees.
    Before RANDOLPH, P.J., PIERCE and KING, JJ.
   KING, Justice,

for the Court:

¶ 1. In this wrongful death action against a nursing home, the nursing home moved to compel arbitration, arguing that the nursing home resident was the third-party beneficiary to the admission and arbitration agreements signed by his sister. The trial court denied the motion, finding that no valid contract was signed by someone with the legal authority to do so, and the nursing home appeals. Because the resident’s sister lacked the authority to contract for him and, thus, no valid contract exists, this Court affirms the trial court’s denial of the motion to compel arbitration.

FACTS AND PROCEDURAL HISTORY

¶ 2. Mose Cooper was admitted to GGNSC Batesville, LLC d/b/a Golden Living Center of Batesville (“Golden Living”) on August 4, 2008. Upon admission, his sister, Catherine Johnson, signed his admission agreement. In addition to the admission agreement, Johnson signed a separate arbitration agreement as an “authorized representative.” The arbitration agreement stated that it was “executed by Golden Living (the ‘Facility) and Mose Cooper (‘Resident’ or ‘Resident’s Authorized Representative’ hereafter collectively referred to as ‘Resident’).” The arbitration agreement further provided that it was “not a condition of admission” and that, upon execution, it “becomes part of the Admission Agreement.” Cooper resided at Golden Living until September 11, 2008. He passed away on February 16, 2009.

¶ 3. On September 8, 2009, the court appointed Johnson as administratrix of Cooper’s estate, pursuant to Johnson’s petition requesting the same. On May 24, 2010. Johnson, individually and as adminis-tratrix of Cooper’s estate, filed suit against Golden Living and several other hospitals and nursing homes that had provided services to Cooper for negligence and wrongful death, among other things. She filed an Amended Complaint on August 2, 2010. On October 27, 2010, Golden Living filed a Motion to Dismiss or to Stay Pending Arbitration Determination, representing that it had filed a declaratory judgment suit against Johnson in federal court, to allow the federal court to make a determination regarding arbitration. Johnson filed a Second Amended Complaint, and Golden Living subsequently filed an Amended Motion to Dismiss or to Stay Case Pending Arbitration Determination. Golden Living eventually dismissed the federal court action and filed a Motion to Dismiss Proceeding and to Compel Arbitration in the circuit court on April 1, 2011.

¶ 4. The court heard arguments on the motion and subsequently denied Golden Living’s motion to dismiss and compel arbitration. The court concluded that no evidence of a lack of capacity existed, as “[n]either party presented a declaration by Cooper’s primary physician stating that Cooper was incapable of managing his affairs prior to Johnson’s signing the admissions agreement with the arbitration agreement.” Further, the court noted that “signing the arbitration provision was not a part of the consideration necessary for Cooper’s admission as it said it was not a condition of admission.” The court then examined whether Cooper was an intended third-party beneficiary of the agreement. The court found that “there was no valid contract because [there was] no one with legal capacity or authority to sign the arbitration agreement on behalf of Cooper.” Because there was no valid contract, the court declined to reach the issue of whether Cooper was a third-party beneficiary to the arbitration agreement. Aggrieved, Golden Living appeals solely on the issue of whether Cooper “was the intended third party beneficiary of the arbitration agreement and related admission agreement.” Johnson argues that she lacked the authority to bind Cooper to a contract, and without a valid contract, this Court need not reach the third-party beneficiary analysis.

ANALYSIS

¶ 5. “The denial of a motion to compel arbitration is reviewed de novo.” Adams Cmty. Care Ctr., LLC v. Reed, 37 So.3d 1155, 1158 (Miss.2010). The Federal Arbitration Act (“FAA”) governs nursing-home admission agreements that contain an arbitration clause. Id. The FAA mandates that courts use a two-pronged inquiry to determine whether to compel arbitration. Id. First, a court must determine whether the parties intended to arbitrate the dispute. Grenada Living Ctr., LLC v. Coleman, 961 So.2d 33, 36 (Miss.2007). Second, a court determines whether external legal constraints foreclose arbitration of the claims. Id.

¶ 6. The first prong examines both whether a valid arbitration agreement exists and whether the parties’ dispute is within the scope of the arbitration agreement. Reed, 37 So.3d at 1158. To determine whether a valid arbitration agreement exists, this Court applies the law of contracts. Id. “The elements of a contract are (1) two or more contracting parties, (2) consideration, (3) an agreement that is sufficiently definite, (4) parties with legal capacity to make a contract, (5) mutual assent, and (6) no legal prohibition precluding contract formation.” Id. (emphasis added) (internal quotations omitted).

¶ 7. For a third-party beneficiary to exist, a valid contract must first exist. Reed, 37 So.3d at 1160. The arbitration agreement explicitly states that it is between Golden Living and Cooper, with Johnson signing only as Cooper’s representative. The question is thus whether Johnson had the ability to bind Cooper to the contract. The parties concede that Johnson was not Cooper’s health-care surrogate under Mississippi Code Section 41-41-211(1) and that Johnson did not possess actual authority over Cooper. See Miss. Code Ann. § 41-41-211(1) (Rev.2009). Thus, we must determine whether Johnson had apparent authority to contract for Cooper.

¶ 8. To prove that Johnson had apparent authority over Cooper, Golden Living “must put forth sufficient evidence of (1) acts or conduct of the principal indicating the agent’s authority, (2) reasonable reliance upon those acts by a third party, and (3) a detrimental change in position by the third person as a result of that reliance.” Reed, 37 So.3d at 1160. The record is utterly devoid of any acts or conduct of Cooper indicating that Johnson was his agent for the purpose of making healthcare decisions. See id. Because Golden Living failed to put forth sufficient evidence, or indeed any evidence at all, of prong one, we need not address prongs two and three. See id. Thus, Johnson did not have the apparent authority to bind Cooper to the contract, and consequently, a valid contract does not exist.

¶ 9. Because a valid contract does not exist, a third-party beneficiary cannot exist. See id.; Coleman, 961 So.2d at 38 (finding no merit in a third-party beneficiary argument in connection with a nursing home admission and arbitration agreement because, absent evidence to the contrary, no one had authority to speak for the principal except himself). Golden Living failed to put forth any evidence of Johnson’s apparent authority to execute the admission and arbitration agreements. See Reed, 37 So.3d at 1160. Thus, we need not reach the third-party beneficiary argument because we find that no valid contract exists. Because no contract, and thus no arbitration provision, exists between Cooper and Golden Living, Cooper’s estate and his wrongful death beneficiaries are not bound by the arbitration agreement.

CONCLUSION

¶ 10. The record before us provides only an arbitration agreement that explicitly states that it is between Mose Cooper and Golden Living, not between Catherine Johnson and Golden Living. Because Golden Living puts forth no evidence that Johnson had legal authority to bind Cooper to a contract, no valid contract exists. Thus, a third-party beneficiary analysis is not necessary, as a third-party beneficiary can exist only when a valid contract exists. Because no valid arbitration provision exists, we affirm the trial court’s decision to deny Golden Living’s Motion to Dismiss Proceeding and to Compel Arbitration.

¶ 11. AFFIRMED.

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

      . The record does not contain the admission agreement.

      . Anthony Cooper, on behalf of Mose Cooper’s wrongful death beneficiaries, is also a plaintiff in this case.

      . Batesville Hospital Management, Inc., D/B/A Batesville Specialty Hospital, joins Golden Living’s brief on appeal. It also joined Golden Living's motion to dismiss proceeding and compel arbitration. As the trial court noted, joinder is "odd as the claims against this Defendant did not even occur at the same time as the claims against [Golden Living], according to the complaint, and also counsel for this Defendant did not appear at oral argument on the motion.”

      . The second prong is not at issue in this case.


author: ROBERTS, J.,

text:
    Joe S. CANE a/k/a Joe Cane, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-01473-COA.
    Court of Appeals of Mississippi.
    Oct. 23, 2012.
    Rehearing Denied Mar. 19, 2013.
    Joe S. Cane, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. This appeal stems from the Oktib-beha County Circuit Court’s August 24, 2011 summary denial of Joe S. Cane’s motion for post-conviction relief (PCR). On February 1, 2010, Cane pled guilty to Count I, sexual battery (oral sex), and Count III, exploitation of a child (possessing a photograph actually depicting a child engaging in sexually-explicit conduct). On Count I, he was sentenced to serve eight years in the custody of the Mississippi Department of Corrections (MDOC) with five years of post-release supervision (PRS). On Count III, he was sentenced to serve eight years in the custody of the MDOC. The circuit judge ordered Cane’s sentence in Count III to run concurrently with his sentence in Count I. Cane was also ordered to pay a $500 fine. In Count II, Cane was charged with sexual battery (sexual intercourse), but this count was nolle prossed. Cane filed a PCR motion on August 8, 2011, and it is from the summary denial of this motion that he now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. On July 15, 2009, an Oktibbeha County grand jury indicted Cane on three counts. The first two counts charged him with sexual battery pursuant to Mississippi Code Annotated section 97-3-95 (Rev. 2006); the last count charged him with possessing a photograph of a child engaging in sexually-explicit conduct pursuant to Mississippi Code Annotated section 97-5-33 (Supp.2011). On February 1, 2010, Cane and his attorney appeared before the circuit court to enter a guilty plea. The circuit judge proceeded to describe each constitutional right Cane was waiving by entering a guilty plea. Cane indicated that he understood he was giving up the following rights: the right to a jury trial, the right against self-incrimination, the right to confront -witnesses, the right to testify on his own behalf, and the right to directly appeal to the Mississippi Supreme Court. Cane also stated that his attorney had explained the guilty-plea petition to him, including the minimum and maximum sentences and the elements of the crimes, and he understood what he was signing. He further stated that he was not promised anything or threatened to enter his guilty pleas. The circuit judge accepted Cane’s guilty pleas, finding that the guilty pleas “to count one and count three of the indictment ... [were] freely, voluntarily, knowingly!,] and intelligently entered!.]”

¶ 3. The State provided its factual basis for the crimes. According to the State, Cane engaged in oral sex with his seventeen-year-old niece. Cane also had a cell phone containing nude pictures of his niece engaged in sexually explicit conduct. The State also indicated that Cane had elected to plead in the open, but that the second count of sexual battery would be dismissed. The circuit judge accepted the factual basis for the crimes and dismissed Count II of the indictment by nolle prose-qui order. Cane was sentenced on Count I to serve eight years in the custody of the MDOC, followed by five years of PRS, plus a $500 fine. His sentence on Count III was to serve eight years in the custody of the MDOC to run concurrently with his eight-year sentence in Count I. He was also required to register as a sex offender upon release. The circuit judge also credited Cane for time he had already served in jail on these charges, which was approximately one year.

¶ 4. On August 11, 2011, Cane filed a PCR motion in the circuit court alleging that the State violated his First, Fifth, Eighth, and Fourteenth Amendment rights. Specifically, he claimed that he did not understand his Miranda rights and that his request for an attorney did not end the interrogation; thus, his statement to the police that was relied upon in the circuit court should not have been allowed. Additionally, Cane claimed that he was denied a speedy trial and that he had ineffective assistance of counsel. The circuit court summarily denied Cane’s PCR motion on August 24, 2011. From this denial, Cane now appeals.

¶ 5. On appeal, Cane raises the following issues:

I. Whether Cane’s plea of guilty was intelligently and voluntarily entered.
II. Whether the [circuit court] erred in accepting Cane’s plea to the charges of sexual battery and child exploitation^] because there was no factual basis of his guilt.
III. Whether Cane was deprived of effective assistance of counsel.
IV. Whether Cane was deprived of his right [to a] speedy trial.

STANDARD OF REVIEW

¶ 6. “When reviewing a [circuit] court’s decision to deny a [PCR motion,] this Court will not disturb the [circuit] court’s factual findings unless they are found to be clearly erroneous. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999) (citing Bank of Miss. v. S. Mem’l Park, Inc., 677 So.2d 186, 191 (Miss.1996)). Questions of law receive a de novo analysis. Id.

ANALYSIS

I. Guilty Plea

¶ 7. For the sake of judicial economy, we will combine the Issues I and II in this section of our analysis, as they both pertain to Cane’s entry of his guilty plea.

¶ 8. In his first issue, Cane asserts that his guilty plea was not intelligently and voluntarily entered because he was threatened with one hundred years in prison if he did not plead guilty, versus a five-year sentence if he did plead guilty. Additionally, Cane claims he was coerced into entering his guilty plea based on an illegally obtained, false, and inadmissible confession. In his second issue, Cane claims there was an insufficient factual basis for the circuit judge to accept his guilty plea. To support this argument, Cane asserts that the State relied on a confession he had given the police after his Miranda rights were violated and that he was interrogated for four hours with no other witnesses. He further argues that at his guilty-plea hearing, he initially denied committing the crime in Count I because his niece inserted his penis in her mouth as opposed to him inserting it himself. According to Cane, the factual basis was not sufficient because his niece was not there to testify, no witnesses were called, and only hearsay statements were relied upon to coerce him into entering the plea.

¶ 9. After a review of the Cane’s guilty-plea colloquy, we cannot find that the circuit judge erred in summarily dismissing Cane’s PCR motion on the ground that Cane’s guilty plea was voluntarily, freely, and intelligently entered. Cane repeatedly informed the circuit judge that he was guilty of the crimes and that he understood what he was doing by pleading guilty. He also informed the circuit judge that he was neither threatened or coerced by anyone into entering his guilty plea nor promised anything in exchange for entering a guilty plea. He also admitted that his attorney had explained the guilty-plea petition to him and that he knew the elements of the crimes he was pleading guilty to, as well as the minimum and maximum sentences for the crimes. Statements made in open court under oath “carry a strong presumption of veracity.” Nichols v. State, 955 So.2d 962, 965 (¶ 6) (Miss.Ct.App.2007) (quoting Herrod v. State, 901 So.2d 635, 636 (¶ 5) (Miss.Ct.App.2004)). As for any claims of error by the police officers in obtaining his confession, Cane’s valid guilty plea acts as a waiver of all non-jurisdictional defects, such as “those rights secured by the Fifth, Sixth, and Fourteenth Amendments.” Anderson v. State, 577 So.2d 390, 391 (Miss.1991) (internal citations omitted). In Turner v. State, 864 So.2d 288, 292 (¶ 17) (Miss.Ct.App.2003), this Court held: “A factual basis for a guilty plea may be established in a number of ways, including by a statement of the prosecutor, the testimony of live witnesses, and prior proceedings, as well as an actual admission by the defendant....” In establishing the factual basis in the current case, the circuit judge relied on a signed written statement made by Cane to the police and the State’s description of the underlying facts and the essential elements of both crimes. The State read the pertinent portions of Cane’s written statement to the circuit judge before Cane’s guilty pleas were accepted. Additionally, the circuit judge specifically asked Cane if he was guilty of engaging in oral sex with his niece and whether he was guilty of possessing photographs of his niece engaging in sexually explicit conduct. Cane answered that he was guilty of both acts. Based on the record before us, we find there was a sufficient factual basis for the circuit judge to accept Cain’s guilty pleas to both crimes.

¶ 10. This issue is without merit.

II. Ineffective Assistance of Counsel

¶ 11. Cane asserts that he received ineffective assistance of counsel. According to Cane, his attorney was ineffective for the following reasons: refusing to take the case to trial; failing to file a motion to suppress illegally obtained evidence; failing to file a motion to request discovery; failing to adequately investigate the facts of the case; failing to require the State to recommend a five-year sentence, as was discussed during the plea negotiations; failing to point out factual inaccuracies, such as that Cane himself was not the one who took pictures of his niece’s genitals; and committing perjury by stating he explained the guilty-plea petition to Cane. Cane claims that he would have insisted on going to trial had his attorney adequately informed him and filed the above-mentioned motions.

¶ 12. In PCR cases, “where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.” Brooks v. State, 89 So.3d 626, 628 (¶ 6) (Miss.Ct.App.2011) (quoting Vielee v. State, 653 So.2d 920, 922 (Miss.1995)). Cane failed to provide any independent affidavit to support his claim of ineffective assistance of counsel. He has presented no evidence beyond the statements made in his brief and PCR motion that his attorney was deficient. Additionally, at his guilty-plea hearing, Cane stated that his attorney had explained the guilty-plea petition to him and that his attorney had not promised him anything or threatened him into entering his guilty plea. His signed guilty-plea petition also indicated that he was “satisfied with the advice and help [his attorney] had given [him.]” As we stated above, statements made in open court under oath “carry a strong presumption of veracity.” Nichols, 955 So.2d at 965 (¶ 6) (quoting Herrod, 901 So.2d at 636 (¶ 5)). His in-court statements that he was satisfied with his attorney’s performance, coupled with his failure to provide any affidavit to support his claim of ineffective assistance of counsel, cause this claim to fail.

¶ 13. This issue is without merit.

III. Right to a Speedy Trial

¶ 14. In Cane’s last issue, he claims that he was deprived of his constitutional right to a speedy trial. Cane was arrested in March 2009 and indicted on July 15, 2009. He entered his guilty plea on February 1, 2010. The record does not provide any evidence that Cane asserted his right to a speedy trial at any time. Additionally, in his signed guilty-plea petition, Cane agreed that he waived certain constitutional rights, including his right to a speedy and public trial by jury.

¶ 15. In Fulton v. State, 844 So.2d 1171, 1172 (¶ 4) (Miss.Ct.App.2003) (citing Anderson v. State, 577 So.2d 390, 391 (Miss.1991)), this Court stated that a valid guilty plea waives all non-jurisdictional rights or defects, including the right to a speedy trial. Cane’s claim fails because his valid guilty plea acts as a waiver to his claim that his right to a speedy trial was violated. Cane’s claim also fails because he failed to assert his right to a speedy trial at any time before he entered his guilty plea. “When the [right-to-a-speedy-trial issue] was not raised below and there was no plain error, we have refused to address allegations regarding speedy trial.” Dora v. State, 986 So.2d 917, 925 (¶ 18) (Miss.2008) (quoting State v. Woodall, 744 So.2d 747, 750 (Miss.1999)).

¶ 16. Since we found that Cane’s guilty plea was unquestionably valid, he has waived his right to a speedy trial and cannot raise that issue on appeal of the dismissal of his PCR motion.

¶ 17. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CIRCUIT COURT SUMMARILY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIBBEHA COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ„ CONCUR.

      . This case was consolidated with Cane v. State, 2011-CP-00274-COA, for the purpose of obtaining Cane's guilty-plea hearing transcript.

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


author: FAIR, J.,

text:
    RIVERVIEW DEVELOPMENT COMPANY, LLC, Appellant v. GOLDING DEVELOPMENT COMPANY, LLC, Appellee.
    No. 2011-CA-00560-COA.
    Court of Appeals of Mississippi.
    Jan. 22, 2013.

      Jerome C. Hafter, Jackson, Robert Gregg Mayer, attorneys for appellant.
    Gene D. Berry, Frank J. Dantone Jr., Greenville, B. Blake Teller, Vicksburg, attorneys for appellee.
    Before LEE, C.J., BARNES and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Riverview Development brought suit to contest Golding Development’s record title to a tract of land near the Mississippi River in Vicksburg. Riverview claimed the City of Vicksburg had adversely possessed the property and conveyed it to Riverview. After Riverview presented its case, the chancellor granted a Rule 41(b) dismissal, finding that the City did not adversely possess the property, and even if it had, the disputed property was not conveyed by the deed to Riverview. The chancellor confirmed title in Golding, and Riverview appeals. We affirm the decision of the chancellor.

FACTS

¶2. The disputed property consists of approximately 11 acres that have at various times been conveyed or leased as part of two larger tracts. In 1922, it was the eastern part of 27 acres that were leased for 50 years by the City of Vicksburg to the Inland and Coastwise Waterways Service, a federal agency. In 1926, the City sold 37 acres, including the subject property and 26 other acres further east, to the Yazoo & Mississippi Valley Railroad (Y & MVRR). The disputed property is the “overlap” of the 1922 lease and the 1926 conveyance, with the remainder of the lease tract generally lying to the east and the remainder of the sold property to the west. The 1926 deed specifically noted that the 11 acres were subject to the 1922 lease.

¶ 3. Confusion began in 1951, when the federal lease was terminated early. The City then executed a new lease that contained a metes and bounds description of the entire 27-acre tract of the original lease — that is, the instrument purported to also lease the 11 acres that the City had sold 25 years earlier in 1926. The lease was acquired by Anderson-Tully, which operated a sawmill and laminating plant, allegedly occupying the entire 27 acres, including the disputed property. To further complicate things, in 1975 Anderson-Tully received a deed to the eastern 37 acres (which also included the disputed property) from Y & MVRR’s successor in title. Anderson-Tully nonetheless continued to pay the full amount of the lease to the City, and in 1994 it exercised an option to renew the lease for another twenty-five years.

¶ 4. Also in 1994, Anderson-Tully assigned the lease and conveyed title to the 37 acres to American Gaming Company for an ill-fated casino development. The two tracts were separated again in 1996 when the 37 acres was foreclosed upon by a mortgagee. In 2003 the lease was terminated by the City for nonpayment. A year later, Riverview purchased land from the City of Vicksburg, with exactly what was conveyed being a disputed issue in this lawsuit. Both parties agree Riverview acquired title to the part of the 1922 lease that had remained continuously in the City’s record ownership. Riverview contended that the conveyance also included the disputed 11 acres, which the City had reacquired by adverse possession through the occupation of Anderson-Tully under the City’s lease. Golding subsequently acquired record title to the disputed property from a successor-in-interest to the mortgagee, ánd this dispute arose between Riverview and Golding.

STANDARD OF REVIEW

¶ 5. Rule 41(b) provides for involuntary dismissals after the presentation of the plaintiffs case in actions tried to the court. “A judge should grant a motion for involuntary dismissal if, after viewing the evidence fairly, rather than in the light most favorable to the plaintiff, the judge would find for the defendant.” Gulfport-Biloxi Reg’l. Airport Auth. v. Montclair Travel Agency, Inc., 937 So.2d 1000, 1004 (¶ 13) (Miss.Ct.App.2006). On the other hand, “[t]he court must deny a motion to dismiss only if the judge would be obliged to find for the plaintiff if the plaintiffs evidence were all the evidence offered in the case.” Id. at 1004-05 (¶ 13) (citation omitted). Rule 41(b) involuntary dismissals are reviewed under the deferential substantial-evidence/manifest-error standard, since the court’s decision is not only as arbiter of the law but as the finder of fact. See id. at 1005 (¶ 13).

DISCUSSION

¶ 6. The parties devote much of their briefs to two rather novel questions regarding the mechanics of adverse possession — whether and under what circumstances the City could adversely possess the property: (1) through the occupation of its tenant and (2) after previously conveying it away. Having studied the record and controlling law, we believe Riverview has put the cart before the horse in advancing these issues without directly challenging the chancellor’s finding that the City did not convey the subject property to Riverview. Because Riverview’s claim is that the City — and not Riverview itself— adversely possessed the property, this case is controlled by Grice v. Brewer, 302 So.2d 511 (Miss.1974). Consequently, we limit our discussion to those issues raised on appeal that are necessary to resolve the case.

¶ 7. In Grice, the Mississippi Supreme Court considered a case in which the proof showed that a claimant’s predecessor in title — and not the claimant himself — had adversely possessed a strip of land adjoining the property identified in his deed. Id. at 512. The boundaries set out in the deed excluded the disputed strip. Id. The supreme court concluded that the record title remained paramount. Id.

¶ 8. It is important to note that neither Grice nor today’s case involve tacking, which allows a party claiming adverse possession to connect his occupation with predecessors in privity of possession. Rutland v. Stewart, 630 So.2d 996, 998 (Miss.1994). Privity of possession can be through “any conveyance, agreement, or understanding[ ] that has for its object the transfer of possession and is accompanied by a transfer in fact.” Walters v. Rogers, 222 Miss. 182, 186, 75 So.2d 461, 462 (1954). However, the claimant’s possession must be continuous with the predecessor for tacking to give rise to a claim of adverse possession in the claimant. See 2 C.J.S. Adverse Possession § 164 (2003). There was little, if any, evidence that the City was in possession of the disputed property at the time of the conveyance to Riverview, nor did Riverview take possession of the disputed area immediately after the conveyance. Riverview simply did not attempt to prove tacking at trial, nor has it been argued on appeal.

¶ 9. Instead, Riverview’s claim is that the City adversely possessed the property at some point in the distant past and transferred it by deed to Riverview. The flaw in this argument is that Riverview— like the plaintiff in Grice — does not have a deed transferring ownership from the City. Instead, the deed from the City expressly identifies the eastern boundary of the property conveyed as the disputed property — i.e., the disputed property is specifically excluded from the conveyance to Riverview. The deed does contain more general language that could be construed to include the disputed property, but the chancellor found the specific language controlling over the general. See Carrere v. Johnson, 149 Miss. 105, 110, 115 So. 196, 197 (1928).

¶ 10. On appeal Riverview has not challenged this finding by the chancellor as to what was conveyed by the City. It simply asserts to the contrary in its brief, without substantial arguments or supporting authority. Riverview also contends that the chancellor could have reformed the deed, which was requested of the lower court; but again the chancellor’s refusal to do so has not been raised as an issue on appeal.

¶ 11. Grice requires a party asserting adverse possession by its predecessor to show that title to the adversely possessed property was actually conveyed by the predecessor. The chancellor found otherwise in the present case, and Riverview has not challenged the relevant findings on appeal. Consequently we must affirm the chancellor’s decision to cancel Riverview’s claim to the disputed property.

¶ 12. Remaining at issue is River-view’s contention that the chancellor erred in finding that Golding held record title to the disputed property, because Golding’s deraignment of title was never entered into evidence during the trial. This record title formed the basis of the chancellor’s decision to quiet title in Golding. “It is an elementary proposition of law that in a cloud suit the complainant has the burden of proving his title and may not rely on the weakness of [his] adversary’s title.” Culbertson v. Dixie Oil Co., 467 So.2d 952, 954-55 (Miss.1985).

¶ 13. It is true that the supporting deeds were not entered into evidence during the trial, but they were submitted with Golding’s pleadings and are public records. Given that the deeds were duly recorded, we find no abuse of discretion in the trial court taking judicial notice of their existence under Rule 201(b) of the Mississippi Rules of Evidence. Under Rule 201, “[a] court may look to any source it deems helpful and appropriate, including official public documents, records and publications.” Enroth v. Mem’l. Hosp. at Gulfport, 566 So.2d 202, 205 (Miss.1990).

? 14. Finally, Riverview contends that the trial court erred in denying a post-trial motion to “establish the correct lines on the ground so as to end the controversy among these adjacent landowners.” Riverview points to lay testimony taking issue with the surveys entered into evidence during the trial. We note that this relief v/as not sought by Riverview in its complaint, nor was any serious effort made during the trial to contest the reliability of the surveys. On appeal, River-view has simply failed to present compelling authority that the chancellor can be held in error for denying this belated request for additional relief. There is “a presumption that the judgment of the trial court is correct, and the burden is on the appellant to demonstrate some reversible error to the appellate court.” Cobb v. Cobb, 29 So.3d 145, 152 (¶24) (Miss.Ct.App.2010). We find that no reversible error has been shown on this point.

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

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

      . M.R.C.P. 41(b).

      . By 2004, only about ten acres of the undisputed area remained above the bank of the Mississippi River.

      . In its original complaint, Riverview asserted that it was the record owner of the disputed 11 acres. It eventually changed its theory to adverse possession.

      . An argument could also be made that the general language is tantamount to a “Mother Hubbard” clause, as contemplated in Grice; but such clauses are effective only for “small areas omitted by inadvertence,” not large parcels. See Grice, 302 So.2d at 512; see also Whitehead v. Johnston, 461 So.2d 240, 242 (Ala.1985).

      . There was some proof that Riverview entered the disputed property later, but the break in continuity is fatal to a tacking claim.


author: ISHEE, J., CARLTON, J.,

text:
    DC GENERAL CONTRACTORS, INC., Appellant v. SLAY STEEL, INC., Appellee.
    No. 2011-CA-00827-COA.
    Court of Appeals of Mississippi.
    Feb. 5, 2013.

      Lawrence Cary Gunn Jr., Hattiesburg, attorney for appellant.
    Adam Stone and Kaytie Michelle Pickett, Jackson, attorneys for appellee.
   ISHEE, J.,

for the Court:

¶ 1. DC General Contractors Inc. contracted with Slay Steel Inc. for the fabrication of steel for a construction project that was ultimately abandoned. Slay Steel filed a breach-of-contraet suit seeking to recover $165,000 for its losses on materials purchased for the project and lost profits. A jury trial was held. The jury found in favor of Slay Steel and awarded $41,500 in damages.

¶2. DC General appeals, asserting the parties agreed to a contract modification that released DC General from liability. Slay Steel cross-appeals requesting an ad-ditur. It asserts the jury’s verdict of $41,500 was an impermissible compromise verdict. We affirm on both the appeal and cross-appeal.

FACTS AND PROCEDURAL HISTORY

¶ 3. DC General, a general contractor, was hired to oversee the construction of a Big Buck Sports retail store in Hatties-burg, Mississippi. On January 15, 2008, DC General contracted with Slay Steel for the fabrication of structural steel for the store. Slay Steel agreed to cut and fabricate the steel in preparation for construction. The purchase order was for $936,830. Big Buck Sports’ owners had trouble financing the store, and the construction was delayed. However, Slay Steel had already begun purchasing materials, as the price quoted in the purchase order was based on the then-current market price of steel.

¶ 4. On May 13, 2008, when no progress had been made by Big Buck Sports, Slay Steel invoiced DC General $289,819.90 for materials Slay Steel had purchased and stored in anticipation of construction starting. DC General forwarded the invoice to Big Buck Sports’ owners with an attached letter stating: “We need to pay for these materials as soon as possible.” Big Buck Sports’ owners replied that they did not want to commit funds to hold the inventory, and the invoice went unpaid. Through subsequent letters exchanged by the parties, Slay Steel was given permission to “utilize this material on other projects as needed,” since it was unclear when the project would start. However, Slay Steel proposed that the contract price would need to be renegotiated if this was done. DC General responded, “we will evaluate steel costs to replace the steel you use and adjust our pricing at that point.” Slay Steel used or sold the materials as it was able. Ultimately, Big Buck Sports failed to obtain financing and cancelled its contract with DC General. DC General paid Slay Steel $60,000 for shop drawings, but this was the only payment Slay Steel received. This amount is separate from the $289,819.90 requested for materials.

¶ 5. Slay Steel sought compensation from DC General for its losses. DC General refused. On January 14, 2010, Slay Steel filed a breach-of-contract suit in the Lauderdale County Circuit Court. A trial was held, consisting of testimony by Greg Slay, vice president of Slay Steel, and Dorian Shoemake, owner of DC General.

¶ 6. At trial, Slay Steel argued DC General breached the contract by failing to specify a delivery date for the fabricated steel in a timely manner. DC General moved for a directed verdict at the end of Slay Steel’s ease-in-chief and again at the close of all evidence. In its motions, DC General argued that it was not liable to Slay Steel for breach of contract because the subsequent letters exchanged by the parties served to modify the contract upon the decision by Big Buck Sports’ owners not to proceed with construction of the store. The motions were denied. The jury returned a verdict in favor of Slay Steel for $41,500. DC General moved for an additur, a judgment notwithstanding the verdict, or, in the alternative, a new trial. All three motions were denied. DC General now appeals arguing the trial court erred in denying its motion for a directed verdict. Slay Steel cross-appeals arguing the trial court erred in denying its motion for an additur or, in the alternative, a new trial on damages.

STANDARD OF REVIEW

¶ 7. The denial of a motion for a directed verdict or JNOV is reviewed de novo. White v. Stewman, 932 So.2d 27, 32 (¶ 10) (Miss.2006). The criteria for review are as follows:

This Court will consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inferenee[s] that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable [jurors] could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand[,] if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required. The above standards of review, however, are predicated on the fact that the trial judge applied the correct law.

Solanki v. Ervin, 21 So.3d 552, 557 (¶ 10) (Miss.2009) (quoting Ala. Great S. R.R. v. Lee, 826 So.2d 1232, 1235-36 (¶ 12), 826 So.2d 1232 (Miss.2002)). In other words, we must consider “whether the evidence, as applied to the elements of a party’s case, is either so indisputable, or so deficient, that the necessity of a trier of fact has been obviated.” White, 932 So.2d at 32 (¶ 11).

¶ 8. The denial of an additur is reviewed for abuse of discretion. Thompson v. Nguyen, 86 So.3d 232, 237 (¶ 18) (Miss.2012).

DISCUSSION

I. DENIAL OF MOTION FOR A DIRECTED VERDICT

¶ 9. DC General argues it was entitled to a directed verdict because the two letters exchanged by the parties modified the contract such that it was not liable for Slay Steel’s losses once the project was abandoned by Big Buck Sports’ owners.

¶ 10. “It is well established that contracts may be modified by a subsequent agreement between the parties.” Heritage Bldg. Prop., LLC, v. Prime Income Asset Mgmt., Inc., 43 So.3d 1138, 1143 (¶ 10) (Miss.Ct.App.2009) (citing Kelso v. McGowan, 604 So.2d 726, 731 (Miss.1992)). “For a subsequent agreement to modify an existing contract, the later agreement must, itself, meet the requirements for a valid contract.” Singing River Mall Co. v. Mark Fields, Inc., 599 So.2d 938, 947 (Miss.1992). A valid contract requires an offer and acceptance. Heritage Bldg. Prop., 43 So.3d at 1143 (¶ 10). “Failure to communicate acceptance of an offer is fatal to [the] creation of a valid contract.” Anderton v. Bus. Aircraft, Inc., 650 So.2d 473, 476 (Miss.1995) (citing R.C. Constr. Co., Inc. v. Nat’l Office Sys., Inc., 622 So.2d 1253, 1255 (Miss.1993)). An agreement modifying a contract does not need consideration to be binding. Miss.Code Ann. § 75-2-209(1) (Rev.2002).

¶ 11. The contract that is the subject of this action is the January 15, 2008 purchase order for the fabrication of steel. The purchase order states that Slay Steel will “effect complete delivery [of the fabricated steel] to the job site by TBD with partial deliveries as required by job progress .... ”

¶ 12. On June 25, 2008, when no delivery date had been determined, Slay Steel sent DC General’s manager, Ken Taylor, the following letter:

Dear Ken,
As you know, I received a purchase order on Big [B]uck on January 15, 2008. With this in hand, I immediately bought all of the major steel members on this project. I took delivery of it and stored it on my yard with a preliminary delivery date of June-July in mind. To date, we have not even begun fabrication. To date, I have spent $321,042.41 just on material. All of this material is bought and paid for. We did this for two reasons: #1: to be protected from the ongoing price increases. #2: to have the material readily available for fabrication since there are shortages in the market. On May 13, 2008, I invoiced you for $298,819.00 worth of material. Since that date, I have took [sic] delivery of another $22,223.41 worth of material that was placed in rollings. I also invoiced for $40,000.00 worth of [detailing for [s]hop [drawings. To date, we have not received payment on anything.
This morning, we received an increase from [Slay Steel’s supplier]. Our purchase order was sent to [Slay Steel’s supplier] on January 15, 2008. At that point, they agreed to hold their price if the job shipped within 20 weeks of that date. We are now in week 22. Their increase is $64,113.00. This will have to be passed on to the owner[s].
In recent phone calls & visits, [the project manager] tells me that the owners are still discussing financing. With that in mind, I have prepared a spreadsheet for you showing what we paid for material versus today[’]s pricing. This will show the owners their savings on material, at my expense.
With all of the above in mind, I need to receive payment on the May invoice. If this is not possible, then we need to sale [sic] the material. I cannot afford to keep carrying this much inventory. I hope that the attached spreadsheet will help the owner[s] make up their minds. I assure you that the $157,380.77 is the minimum that the increase will be that they incur. It is based on 6-25-2008 pricing. We are receiving base price increases at a minimum of once a month. We have 306.25 tons on our yard for Big Buck. A one cent per pound increase will cost the owner[s] $6,125.07 every time it goes up. This pricing does not include ANY surcharges. This is published base price only.
Please let me know something as soon as possible[,] Ken. I know this is sort of out of your hands, but if the owner[s] choose[] option two mentioned above, then it may be that I can go on and use some of the material on some work that we are currently doing. If this is done, then we would have to re[-]price the entire job whenever they are ready to proceed.
Sincerely,
Slay Steel, Inc.

On July 10, 2008, DC General responded to Slay Steel’s letter:

Greg:
We have discussed the steel situation on the referenced project with the Owners. At this time, they do not want to commit any funds to holding the steel inventory. You can utilize this material on other projects as needed.
We do still consider this a viable project. As with all retail projects, store opening times are tuned to the seasons and the Owners try to plan construction to coincide. Once we receive notice to proceed on this project, we will evaluate steel costs to replace the steel you use and adjust our pricing at that point. We appreciate your working with us on this project and will keep you updated on its status.
Sincerely,
Ken Taylor

¶ 13. Since the purchase order left the date for delivery to be determined, we must first look to Mississippi Code Annotated section 75-2-311 (Rev.2002), which instructs us on contracts that leave a term unspecified. When a contract leaves a particular aspect of performance open, the term may be made later, as long as it is “made in good faith and within limits set by commercial reasonableness.” Miss. Code Ann. § 75-2-311(1). If the specification is one that materially affects the other party’s performance, it must be “seasonably made.” Miss.Code Ann. § 75-2-311(3). Greg testified that the typical time from purchase order to delivery is ten to twelve weeks. This testimony was not contradicted. Five months passed before Slay Steel’s first letter to DC General, and no delivery date was ever determined because the project was cancelled. Thus, taking Greg’s testimony as true, it follows that DC General was in breach for failure to specify a delivery date. DC General does not dispute on appeal that it was in breach of the purchase order. Its sole issue is whether or not the two letters sent subsequent to the purchase order effected a contract modification that extended the time for performance.

¶ 14. DC General’s argument regarding modification focuses on one particular issue in the two letters — the statement that the parties would re-price the job once Big Buck Sports’ owners decided to move forward. Slay Steel’s letter requests permission to use or sell the materials it had purchased if payment was not possible. But, it goes on to state, if the materials were used or sold, the parties “would have to re[-]price the entire job whenever [Big Buck Sports’ owners were] ready to proceed.” DC General gave Slay Steel permission to “utilize this material on other projects as needed.” As to re-pricing the job, DC General’s letter states: “Once we receive notice to proceed on this project, we will evaluate steel costs to replace the steel you use and adjust our pricing at that point.” DC General argues these statements formed a clear agreement that no further action was required unless the Big Buck Sports project moved forward. Worded differently, DC General argues the modification created a contingency contract, where the parties’ obligations to one another were contingent on two factors: (1) the project moving forward, and (2) an agreement on a renegotiated price. It asserts no reasonable juror could have found that this was not a contract modification; thus, it was entitled to a directed verdict.

¶ 15. Contract modification is a question of fact for the jury. Green v. Pendergraft, 253 Miss. 891, 901, 179 So.2d 831, 836 (1965). In order to reverse and render the jury’s decision, the facts must “point so overwhelmingly in favor of the appellant that reasonable [jurors] could not have arrived at a contrary verdict.” Solanki, 21 So.3d at 557 (¶ 10) (citation omitted). Further, when reviewing the denial of a directed verdict, we must consider the evidence in the light most favorable to the nonmoving party. Id. Considering the evidence in the light most favorable to Slay Steel, we cannot find that the facts so overwhelmingly favored DC General such that no reasonable juror could have arrived at a contrary decision. Slay Steel received permission from DC General to use the materials on other projects. However, no other agreement was made. Slay Steel asked to re-price the entire project, but DC General’s response only stated that it would re-price any material Slay Steel used. This language did not release DC General from liability, and it does not mention what would happen if the project did not move forward. In fact, DC General’s letter does not indicate any doubt as to the construction going forward; rather, it states the project was still considered “viable.”

¶ 16. The letters, at the least, raise a jury question as to whether the contract had been breached or modified. The burden was on DC General to show a contract modification, and we find the evidence was insufficient to support a directed verdict. The jury weighed the evidence and found Slay Steel presented more credible evidence than DC General. Viewing the evidence in the light most favorable to Slay Steel, we find substantial evidence existed to support the jury’s verdict. This issue is without merit.

II. CROSS-APPEAL

A. ADDITUR

¶ 17. Slay Steel cross-appeals arguing the trial court erred in denying its motion for an additur or, alternatively, a new trial on damages. Slay Steel argues it presented uncontradicted evidence to support an award of $165,068.82, rather than the jury’s award of $41,500, and the trial court had a duty to correct the verdict to conform to the evidence.

¶ 18. An additur may be awarded when (1) “the damages are ... inadequate for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion,” or (2) “the damages awarded were contrary to the overwhelming weight of credible evidence.” Miss. Code Ann. § 11-1-55 (Rev.2002). In determining whether the jury was influenced by bias, passion, or prejudice, our focus is on whether the verdict is so “inadequate as to shock the conscience.... ” Walker v. Gann, 955 So.2d 920, 931-32 (¶ 38) (Miss.Ct.App.2007) (quoting Wal-Mart Stores, Inc. v. Johnson, 807 So.2d 382, 392 (¶ 27) (Miss.2001)).

¶ 19. Our standard of review for a denial of an additur is abuse of discretion. Thompson, 86 So.3d at 237 (¶ 18). Our review is limited to the trial judge’s decision to deny the motion for an additur, not the jury’s action in awarding damages. McClatchy Planting Co. v. Harris, 807 So.2d 1266, 1270 (¶ 16) (Miss.Ct.App.2001) (citing McNair Transp., Inc. v. Crosby, 375 So.2d 985, 986 (Miss.1979)). The evidence is viewed in the light most favorable to the nonmoving party, giving “him or her the benefit of all favorable inferences reasonably drawn therefrom,” Id. “If that evidence is contradicted, we will defer to the jury, which determines the weight and worth of testimony and the credibility of the witness at trial.” Scott Prather Trucking, Inc. v. Clay, 821 So.2d 819, 821-22 (¶ 10) (Miss.2002) (internal quotation omitted). The jury’s award of damages will be taken as conclusive if it is “not contradicted by positive testimony or circumstances, and is not inherently improbable, incredible, or unreasonable.... ” A & F Props., LLC v. Lake Caroline, Inc., 775 So.2d 1276, 1282 (¶ 17) (Miss.Ct.App.2000) (quoting Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 635, 53 So.2d 69, 75 (1951)).

¶ 20. Slay Steel purchased approximately $321,042 in materials in anticipation of construction starting on Big Buck Sports. When it became evident the project had been delayed indefinitely, Slay Steel sought to use the materials on other projects or sell the materials to other companies. However, because the price of steel had dropped significantly, Slay Steel took a loss on all of the materials it sold. Further, it was difficult to resell the materials, as they had been specially cut for Big Buck Sports. According to charts submitted by Slay Steel at trial, it paid $172,890.06 for the materials it was able to resell; however, it was only able to resell the materials for $91,896.24, resulting in a loss of $80,993.82. The remaining materials, which Slay Steel purchased for approximately $150,000 to $200,000, were used by Slay Steel on other projects. Slay Steel is not claiming a loss for these materials. Regarding the calculation of lost profits, Greg testified he would have made a ten percent profit on the contract. The lost profit was calculated to be $84,075. Slay Steel asserts the amounts presented— $80,993.82 in costs and $84,075 in lost profits — were uncontradicted, and the jury should have awarded the total amount, $165,068.82, in damages.

¶ 21. Despite Slay Steel’s argument to the contrary, DC General did attempt to dispute the amount of damages presented by Slay Steel at trial. DC General asserted that, based on Slay Steel’s own figures, the damages were, at the most, $29,146. DC General took the total price paid by Slay Steel for materials and subtracted the prices of sales to other companies. It then subtracted the approximate purchase price of the materials used by Slay Steel in its own business ($321,042-$91,896.24-$200,000 = $29,145.76). When questioned on cross-examination as to whether or not this formula was correct, Greg responded, “if the $200,000 is correct, then you’d be right, but ... that was a guess....” Greg admitted that, at some point, he stopped keeping records of the materials Slay Steel reused on other projects. DC General also questioned Greg as to why it appeared some materials were listed as being sold twice. Greg explained that he intended to use some of the materials that were later sold to other companies. However, he testified that all the numbers presented to the jury were correct.

¶ 22. DC General also challenged the alleged lost profits. Slay Steel determined its lost profits by anticipating an approximate ten percent return on the job. This was lowered to approximately eight percent at some point, but, at trial, Greg testified that Slay Steel was asking for the full ten percent due to the length of time that had passed without compensation. However, it is unclear how this number was calculated. Ten percent of the contract price would have been $93,683, yet Slay Steel has continually stated its lost profits are $84,075. No explanation is given as to how this figure was calculated.

¶ 23. In addition to the calculation of lost profits, DC General challenged the reasonableness of a near ten percent profit. Shoemake was asked whether a ten percent profit on a project such as this was reasonable. Shoemake testified that he had never made a ten percent profit on an approximately million-dollar job; rather, a more reasonable profit would have been “[f]ive or less” percent.

¶ 24. Because the verdict of the jury was a general verdict, we cannot say for sure why the jury decided upon $41,500 in damages. See Thompson, 86 So.3d at 238 (¶ 22). However, an additur “is not available to a plaintiff merely because a jury awards less than the plaintiff alleges to be owed.” Benchmark Health Care Ctr., Inc. v. Cain, 912 So.2d 175, 181 (¶ 14) (Miss.Ct.App.2005). An additur may be granted only if it is found that the jury’s award was so low as to shock the conscience, or if it was contrary to the overwhelming weight of the evidence. Walker, 955 So.2d at 931 (¶ 38). We cannot find the award was so inadequate as to shock the conscience, or that the verdict was against the overwhelming weight of the evidence. Likewise, we find the trial court did not abuse its discretion in denying the additur. We affirm the trial court’s judgment as to the denial of the motion for an additur.

B. COMPROMISE VERDICT

¶ 25. Slay Steel next argues that, in the alternative, if an additur is denied, a new trial on damages is warranted because the trial court failed to instruct the jury that compromise verdicts are not allowed.

¶ 26. After the jury deliberated, it announced that nine members had reached a verdict in favor of Slay Steel for $41,500. The trial judge polled the jury and discovered that only five of the twelve jurors agreed to the verdict. Since nine or more jurors must agree on the verdict in a civil case, the trial judge asked the jurors to continue deliberating. See Miss.Code Ann. § 13-5-93 (Rev.2012). Before leaving the courtroom, the jurors asked if they could explain their vote. The jury members stated they had first taken a vote on liability, and nine members agreed that DC General was liable. Then the jury voted on damages, and nine members agreed to an award of $41,500. However, the nine who voted for the award of $41,500 were not the same nine who voted in favor of liability. The trial judge instructed the jury to continue deliberating until nine members agreed on the verdict.

¶ 27. While the jury was deliberating, Slay Steel requested that the judge instruct the jury that it was not allowed to reach a compromise verdict — that is, a verdict “where the jury compromise[s] between the issues of liability and amount of damages.” Dunn v. Jack Walker’s Audio Visual Ctr., 544 So.2d 829, 831 (Miss.1989). The judge agreed. But before the instruction could be given, the jury returned with the same verdict. When polled again, eleven of the twelve jurors stated they agreed DC General was liable to Slay Steel, and the same eleven agreed on the award of $41,500.

¶ 28. “There is no question but that our law condemns compromise verdicts.” Id. at 832. If a party fears the jury may reach a compromise verdict, the party can “request that the jury be instructed that it may not compromise between the question[s] of liability and damage.” Id.; see also Vicksburg Chemical Co. v. Thornell, 355 So.2d 299, 302 (Miss.1978). However, before we will disturb a verdict, “the complaining party must establish that the verdict was indeed a compromise verdict.” Dunn, 544 So.2d at 832.

¶ 29. Again, because the verdict was a general verdict, we cannot say for sure why the jury awarded $41,500 in damages. See Thompson, 86 So.3d at 238 (¶ 22). This particular amount was not presented by either party. However, this does not necessarily indicate the award was a compromise verdict. A compromise verdict occurs when the jury cannot agree on a verdict and, consequently, awards a lower amount of damages to get the agreement of the number required to reach a verdict — in other words, the jury compromises on damages to get an agreement on liability. Here, on both occasions that the jury was polled, at least nine members of the jury found Slay Steel was entitled to damages. Also, on both occasions, the jury awarded $41,500. Since the jury concluded Slay Steel was entitled to damages both times, this would seem to indicate no compromise was needed. Rather, Slay Steel’s contention seems to be solely with the amount of damages, which we have found did not evidence bias, passion, or prejudice and was not contrary to the weight of the evidence.

¶ 30. Despite the fact that DC General’s requested compromise-verdict instruction was not given, the judge did give a similar instruction before the jury returned to deliberate the second time:

BY THE COURT: You know, it doesn’t make sense to me for somebody that doesn’t find for the Plaintiff to be involved in assessing damages. That’s not acceptable. There need[s] to be nine of you that are in agreement as to for the Plaintiff or for the Defendant. If the nine are in agreement for the Plaintiff, then there needs to be an agreement as to the amount of damages. If you haven’t reached an agreement on both of those issues; nine people, those same nine people; then you’re to continue your deliberations.

Further, in jury instruction C-7, the jury was instructed that although “the precise amount of damage may be difficult to determine,” a verdict may not be rendered “based upon mere speculation or guesswork. ...” This instruction also states that the jury should be able to “arrive at the amount of damages with reasonable certainty ...,” but Slay Steel was not required to “prove the amount of those damages with mathematical precision.”

¶ 31. We find that Slay Steel has not established the jury reached a compromise verdict, or that reversal is warranted for the trial court’s failure to instruct the jury against such a verdict. The jury was instructed that the same nine members who agreed on liability must have agreed on the damages award, and that the award must be determined with reasonable certainty. Slay Steel argues that because of the jury’s first vote on liability, it is possible that the damages verdict was a compromise verdict between those who found for liability and those who did not yet vote on damages anyway. Slay Steel argues this would explain the award of a lesser amount than demanded. However, it is a “fallacy ... that the possibility of a compromise verdict proves that one did in fact occur.” Dunn, 544 So.2d at 831. This issue is without merit.

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

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

CARLTON, J.,

Concurring in Part and Dissenting in Part:

¶ 33. I concur in part and dissent in part with respect to the majority’s opinion. I concur with the majority in affirming the jury’s verdict assessing damages against DC General and the trial court’s judgment entered on the jury’s verdict. I, however, submit that the trial court abused its discretion in failing to grant the motion filed by Slay Steel for an additur or, alternatively, a new trial on damages. The verdict of the jury lies against the overwhelming weight of the evidence.

¶ 34. The evidence shows that a purchase order was issued January 15, 2008, by DC General to Slay Steel for the fabrication of steel. The issuance of the purchase order constituted the purchase of fabricated steel by DC General from Slay Steel, and Slay Steel was obligated to perform by providing the fabricated steel, as stated in the purchase order, within a reasonable time of issuance of the purchase order.

¶ 35. The record shows that upon receipt of the purchase order, Slay Steel performed by purchasing steel to fulfill the purchase order, and payment was due to DC General upon its receipt of the invoice from Slay Steel. Payment was due within a reasonable time of receipt of the invoice showing performance of the terms of the purchase order issued by DC General.

¶ 36. While the purchase order constituted a purchase by DC General, the purchase order identified the delivery date of the fabricated steel as “TBD,” with partial deliveries as required by job progress. Slay Steel had already performed under the requirements of the January 2008 purchase order issued by DC General to Slay Steel for fabricated steel. Slay Steel performed as required within a reasonable time of receipt of the purchase order by purchasing steel for fabrication to be delivered at some later time. The subsequent letters at issue occurring in June 2008 and July 2008 reflect attempts to mitigate the losses in the costs of the steel already ordered by DC General, but these letters fail to extinguish the preexisting rights to recovery for prior performance of the terms of the purchase order. The purchase order issued to Slay Steel had already been performed at that point, and the date of delivery was the only issue to be determined. I, therefore, submit that the trial court abused its discretion in failing to grant an additur or to grant Slay Steel’s motion for a new trial on damages.

¶ 37. In addressing the overwhelming weight of the evidence in this case, I further acknowledge Plaintiffs Exhibit 1, submitted at trial, and the other evidentiary exhibits, including the AIA documents incorporated into the contract at issue. The AIA document and its relevant provisions contain the requirements and conditions for termination in the document’s Article 14. A review of that document shows that a termination by the owner for the owner’s convenience requires written notice, and that the termination is only effective as to work not yet performed after the effective notice. This provision in the AIA document is consistent with Mississippi Code Annotated section 75-2-106 (Rev.2002) on terminations. Section 75-2-106 recognizes that only obligations that are still executo-ry may be discharged, but that rights based upon prior performance survive. In my view, the damages awarded to Slay Steel contradict the overwhelming weight of the evidence. See Miss.Code Ann. § 11-1-55 (Rev.2002).

¶ 38. Based on the foregoing, I concur in part and dissent in part with respect to the majority’s opinion.

      . See Miss.Code Ann. § 11-1-55 (Rev.2002); see generally Dedeaux v. Pellerin Laundry, Inc., 947 So.2d 900, 903-09 (¶¶ 7-16) (Miss.2007); Cash Distrib. Co. v. Neely, 947 So.2d 317, 324-26 (¶¶ 14-20) (Miss.Ct.App.2006).

      . See Miss.Code Ann. § 75-2-301 (Rev.2002) (identifying obligations of the buyer and seller); Miss.Code Ann. § 75-2-206 (Rev.2002) (providing that an order to buy goods for prompt or current shipment invites acceptance and discussing how acceptance is made).

      . See generally APAC-Miss., Inc. v. Goodman, 803 So.2d 1177, 1183 (¶ 20) (Miss.2002); O’Neal Steel Co. v. Leon C. Miles, Inc., 187 So.2d 19, 25 (Miss.1966); see also Miss.Code Ann. § 75-2-106 (Rev.2002) (addressing contracts, contract sales, and contract termination and providing that upon termination, "all obligations which are still executory on both sides are discharged!)] but any right based on prior breach or performance survives”); Miss.Code Ann. § 75-2-209 (Rev. 2002) (addressing modification of contracts and providing in the comment that the test of good faith applies to modifications and includes "observance of reasonable commercial standards of fair dealing in the trade”).

      . See Miss.Code Ann. § 75-2-301 (general obligations of the parties); Miss.Code Ann. § 75-2-206 (providing that an order to buy goods invites acceptance).

      . See Plaintiffs Exhibit 1 (AIA document incorporated into the contract between the parties).

      . See Miss.Code Ann. § 75-2-204 (Rev.2002) ("Even though one or more terms are left open[,] a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.").

      . See Miss.Code Ann. § 75-2-105 (Rev.2002); Miss.Code Ann. § 75-2-301; see also Goodman, 803 So.2d at 1183 (¶ 20); O’Neal Steel, 187 So.2d at 25.

      . See Plaintiff's Exhibit 1.

      . See Miss.Code Ann. § 75-2-209 cmt. (modification fails to include a unilateral termination or cancellation as defined in section 75-2-106).


author: ISHEE, J.,

text:
    Xezavion TAYLOR, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00835-COA.
    Court of Appeals of Mississippi.
    Feb. 12, 2013.

      George T. Holmes, Jackson, Carol L. White-Richard, Marvell Maurice Gordon, Leslie S. Lee, Jackson, attorneys for appellant.
    Office of the Attorney General by Stephanie B. Wood, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Xezavion Taylor was indicted by a Washington County grand jury for Count I, armed robbery; Count II, armed carjacking; Count III, kidnapping; Count IV, house burglary; Count V, possession of a weapon by a felon; and a sentence enhancement for using a firearm during the commission of the crimes. After a trial, the jury returned a guilty verdict on all counts. Taylor was then sentenced in the Washington County Circuit Court to twenty years for Count I, twenty years for Count II, twenty years for Count III, ten years for Count IV, five years for Count V, and a ten-year sentence enhancement for using a firearm during the commission of the crimes, with the sentences to run consecutively to each other, all in the custody of the Mississippi Department of Corrections (MDOC). Thereafter, Taylor filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. His motion was denied. Taylor now appeals arguing: (1) the evidence was insufficient as a matter of law to prove that he committed burglary of a dwelling; (2) the trial court erred by giving the State’s jury instruction regarding the elements of the crimes, which effectively amended the indictment to include both April 16 and April 17 as the dates of the offenses; (3) the trial court erred by refusing his jury instruction regarding the identity of the culprit; (4) trial counsel’s performance constituted ineffective assistance of counsel; and (5) the trial court erred by denying his motion for a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 2. Kendall Franklin, the victim in this case, heard a knock on his door at approximately 10:00 p.m. on April 16, 2009. Franklin lived in what he described as a “rooming house,” which was a house that contains four bedrooms, each of which was rented out to a separate individual. The tenants shared a bathroom and a kitchen. But their rooms were locked, and only the occupant of each room had a key to the room. When Franklin answered his door, he was greeted by Terry Johnson and a second individual whom Franklin did not know at the time, but who was later identified by Franklin as Taylor. Johnson then asked Franklin to drive him home, which Franklin agreed to do.

¶ 3. As Franklin drove the men to Johnson’s apartment, Taylor, who was in the back seat, pointed a gun at Franklin and ordered him to drive to the levee. Franklin followed his instruction. Upon their arrival at the levee, Taylor moved to the driver’s seat, Franklin moved to the front passenger seat, and Johnson sat in the back seat of the vehicle. Taylor then demanded money from Franklin; however, Franklin had none because he had left his wallet at home.

¶ 4. Taylor then began driving Franklin’s vehicle to various locations. At one point they picked up a fourth individual, but Franklin was unable to identify that individual. Taylor then drove to Franklin’s residence, at which point Johnson and the unidentified fourth person went inside while Taylor continued to hold Franklin at gunpoint. The men then stole various items from Franklin’s residence.

¶ 5. After leaving the rooming house, they met a second vehicle and placed the stolen items in that vehicle. Franklin was then taken back to the levee and forced to get in the trunk of his vehicle. The vehicle was driven to a second location with Franklin in the trunk. Franklin was eventually able to escape from the trunk, walk home, and call the police. He called the police shortly after midnight on April 17, 2009.

¶ 6. On November 23, 2009, Taylor and Johnson were indicted by the grand jury for Count I, armed robbery; Count II, armed carjacking; Count III, kidnapping; Count IV, house burglary; and Count V, possession of a weapon by a felon. They were also charged with a sentence enhancement for using a firearm during the commission of the armed robbery, armed carjacking, and kidnapping, pursuant to Mississippi Code Annotated section 97-37-37(1) (Supp.2012). On February 17, 2010, the trial court entered an order for a severance of the trials of the two men and for them to be tried separately.

¶ 7. Taylor’s trial began on May 3, 2010, and lasted two days. On May 4, 2011, the jury returned a guilty verdict on all five counts and the firearm enhancement. On May 20, 2011, Taylor was sentenced to twenty years for Count I, twenty years for Count II, twenty years for Count III, ten years for Count IV, five years for Count V, and a ten-year sentence enhancement for using a firearm during the commission of the crimes, with the sentences to run consecutively to each other, all in the custody of the MDOC. Taylor then filed a motion for a JNOV or, in the alternative, a new trial, which was denied. Taylor now appeals.

DISCUSSION

I. Sufficiency of Evidence to Establish Each Element of the Crime of Burglary of a Dwelling

¶ 8. When considering the sufficiency of evidence on appeal, we must determine “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; and where the evidence fails to meet this test it is insufficient to support a conviction.’ ” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 9. Taylor argues the evidence was insufficient to establish that he committed the crime of burglary of a dwelling. He asserts the term “dwelling house” as used by the legislature to constitute the burglary of a dwelling does not include Franklin’s room in the rooming house. Taylor further claims that Franklin’s room is more akin to the buildings and rooms covered by Mississippi Code Annotated section 97-17-33(1) (Rev.2006), which states:

Every person who shall be convicted of breaking and entering, in the day or night, any shop, store, booth, tent, warehouse, or other building or private room or office therein, water vessel, commercial or pleasure craft, ship, steamboat, flatboat, railroad car, automobile, truck or trailer in which any goods, merchandise, equipment or valuable thing shall be kept for use, sale, deposit, or transportation, with intent to steal therein, or to commit any felony, or who shall be convicted of breaking and entering in the day or night time, any building within the curtilage of a dwelling house, not joined to, immediately connected with or forming a part thereof, shall be guilty of burglary, and imprisoned in the penitentiary not more than seven (7) years.

His contention is that Franklin’s room in the rooming house constitutes a “private room or office.”

¶ 10. Taylor concedes this issue was never raised before the trial court; however, he argues the issue should be reviewed under the plain-error doctrine. The plain-error doctrine is employed by this Court when the defendant’s substantive or fundamental rights are affected. Jenkins v. State, 75 So.3d 49, 57 (¶ 22) (Miss.Ct.App.2011) (citation omitted). The plain-error doctrine applies when there is “(i) an error at the trial level and (ii) such an error resulted in a manifest miscarriage of justice.” Stephens v. State, 911 So.2d 424, 432 (¶ 19) (Miss.2005) (citation omitted). This Court has previously found that when the crime charged was burglary of a dwelling, the State’s failure to prove the building burglarized was, in fact, a dwelling constituted plain error. Carr v. State, 770 So.2d 1025, 1029-30 (¶¶ 15-16) (Miss.Ct.App.2000). Accordingly, we will consider Taylor’s claim under the plain-error doctrine.

¶ 11. The elements of burglary of a dwelling, for which Taylor was convicted, are: “(1) the unlawful breaking and entering of a dwelling; and (2) the intent to commit some crime when entry is attained.” Kirkwood, v. State, 52 So.3d 1184, 1187 (¶ 12) (Miss.2011) (citations omitted). The term “dwelling house” is defined as “a place where people dwell or reside.” Robinson v. State, 864 So.2d 1131, 1134 (Miss.1978). The intention of the dweller is the material consideration in determining whether a place constitutes a dwelling house. Id. Thus, for example, if an individual plans to permanently reside in a hotel or motel, that place is considered his dwelling. Id.

¶ 12. We find Franklin’s room in the rooming house constitutes a dwelling for the purposes of the statute. It is clear that the room was Franklin’s residence; he paid rent and was the only individual with a key to the room. In addition, all of his belongings were in the room. Furthermore, throughout his testimony Franklin repeatedly referred to his room as his “home.” There is no evidence that the room was not his permanent residence or that he did not plan to remain there. Accordingly, there was sufficient evidence to support Taylor’s burglary conviction. This issue is without merit.

II. Elements Jury Instruction

¶ 13. Taylor argues the trial court erred by giving the State’s jury instruction referring to the elements of the crimes charged, because it informed the jury that it should find Taylor guilty if it determined the offenses charged occurred “on or about April 16, 2009-April 17, 2009.” Taylor asserts the “elements jury instruction” effectively amended the indictment, which alleged the crimes occurred on or about April 17, 2009. However, the State’s revised demand for notice of an alibi stated the time and date of the offense was April 16, 2009 at 10:15 p.m. Taylor’s alibi covered the time period from approximately 10:00 p.m. on April 16, 2009, until the next morning on April 17, 2009. Taylor argues he was prejudiced by the instruction because it negated the evidence he presented at trial of his alibi for April 16, 2009. In addition, he asserts that he had no opportunity to defend himself against the April 17, 2009 date because the jury instruction came after the defense had rested.

¶ 14. “The indictment is not required to state the correct date as long as it does not invalidate the indictment, and the time element does not have to be specific as long as it is within reasonable limits.” Burbank v. State, 800 So.2d 540, 544 (¶ 8) (Miss.Ct.App.2001) (citing Morris v. State, 595 So.2d 840, 842 (Miss.1991)). Here, the indictment stated the crimes occurred “on or about April 17, 2009,” and the evidence presented at trial showed the crimes occurred between 10:00 p.m. on April 16, 2009, and shortly after midnight on April 17, 2009. The elements jury instructions listed the offense date as “on or about April 16, 2009-April 17, 2009.”

¶ 15. The date provided in the indictment reasonably covered the time period of April 16, 2009, to April 17, 2009. Thus, the dates listed in the elements jury instruction fell within the time period provided for in the indictment and conformed to the evidence presented at trial. Because the dates listed in the elements jury instructions were covered by the time period given in the indictment, they did not effectively amend the indictment.

¶ 16. The Mississippi Supreme Court has noted that “notice of a specific date is often essential to the preparation of a defense—especially where an alibi defense is relied on.” Wilson v. State, 515 So.2d 1181, 1183 (Miss.1987). Although the indictment listed “on or about April 17, 2009,” the State’s revised demand for notice of an alibi listed “on or about April 16, 2009, at approximately 2215 hours” as the offense date and time. Taylor’s alibi covered the time period from the night of April 16, 2009, until the morning of April 17, 2009. This conformed to both the evidence presented at trial of the time period when the offense occurred and the time period listed in the jury instructions. Hence, he has not show any prejudice by the dates listed in the jury instructions because they were, in fact, covered by the alibi he presented at trial.

¶ 17. Moreover, Taylor does not assert that the addition of April 16, 2009, was in error; he simply asserts the jury instructions should not have included April 17, 2009. This argument is misguided because April 17, 2009, is the date actually listed in the indictment. Furthermore, his alibi covered both the night of April 16, 2009, and the morning of April 17, 2009. Accordingly, Taylor has not shown that the elements jury instructions amended the indictment or that he was prejudiced. This issue is without merit.

III. Identity Jury Instruction

¶ 18. The standard of review for the giving or refusal of jury instructions is an abuse of discretion. Victory v. State, 83 So.3d 370, 373 (¶ 12) (Miss.2012) (citation omitted). When reviewing the giving or refusal of jury instructions, we do not view the jury instructions in isolation, but instead we consider them as a whole. Rushing v. State, 911 So.2d 526, 537 (¶ 24) (Miss.2005) (citation omitted).

¶ 19. Defendants clearly have the right to a fair trial; included in that right is a proper jury instruction on the theory of defense for which the defendant presented proof. Mitchell v. State, 90 So.3d 584, 589 (¶ 10) (Miss.2012) (citation omitted). The trial court may refuse the requested jury instructions if they (1) incorrectly state the law, (2) are covered elsewhere in the instructions, or (3) are without evidentiary foundation. Id.

¶ 20. With regard to a request for a jury instruction referencing the culprit’s identity, the trial court is required to provide the instruction when “the identification of the accused rests entirely upon the testimony of a single witness.” Tugle v. State, 68 So.3d 691, 696 (¶ 21) (Miss.Ct.App.2010) (quoting Thomas v. State, 766 So.2d 809, 811 (¶ 8) (Miss.Ct.App.2000)). “However, ... a defendant is only entitled to such an instruction if requested and if he is identified as the guilty party by, at most, one witness to his alleged crime.” Id. at (¶ 22). Furthermore, regarding jury instructions dealing with eyewitness identification, the supreme court has stated: “‘[T]he general instruction given to the jury to the effect that the State has the burden of proving each element of the offense charged beyond a reasonable doubt,’ includes the misidentification issue.” Brunner v. State, 37 So.3d 645, 648 (¶ 14) (Miss.Ct.App.2009) (quoting Smith v. State, 802 So.2d 82, 88 (¶ 20) (Miss.2001)).

¶ 21. Taylor argues the trial court erred by refusing his proffered “identity jury instruction,” proposed jury instruction D-l. Proposed jury instruction D-l stated: “The [c]ourt instructs the jury that in any criminal case, the [S]tate must not only prove the essential elements of the [S]tate’s case but must also prove the identity of the defendant as the perpetrator of the offense or offenses.” Taylor claims his theory of defense was that he was misidentified; therefore, the jury instruction should have been given.

¶ 22. Mississippi law is clear that a defendant is entitled to an identity jury instruction when the case rests entirely on a single witness’s testimony. Here, while there was only one eyewitness, Taylor’s fingerprint was also found at the crime scene. Thus, the entire case did not hinge on the single witness’s testimony, and the trial court was not required to include the identity jury instruction.

¶ 23. Although a misidentification instruction was not required, the jury instructions given nonetheless included the misidentification issue. Jury Instructions S-1A, S-3A, S^LA, S-5A, and S-6A informed the jury that the State had to prove beyond a reasonable doubt that between April 16, 2009, and April 17, 2009, Taylor had committed the elements of armed robbery, armed carjacking, kidnapping, house burglary, and possession of a firearm by a felon. Jury Instruction D-8 advised the jury: “You have the duty to determine the believability of the witnesses. In performing this duty, you must consider each witnesses] intelligence, the witnesses] ability to observe and accurately remember, the witnesses] sincerity, and the witnesses] demeanor while testifying.” As in Brunner, these jury instructions, taken together, encompass the theory of misidentification. Accordingly, this issue is without merit.

IV. Ineffective Assistance of Counsel

¶ 24. To establish a claim of ineffective assistance of counsel, the defendant must show (1) counsel’s performance was deficient, and (2) the deficiency prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance[.]” Id. at 689, 104 S.Ct. 2052. Therefore, the defendant must overcome the presumption that counsel’s conduct could be considered sound trial strategy. Id. Moreover, to establish a claim of ineffective assistance of counsel, the defendant must show that but for counsel’s errors, the outcome of the proceedings would have been different. Id. at 694, 104 S.Ct. 2052.

¶ 25. Taylor argues his trial counsel was ineffective based on the trial counsel’s failure to (1) request a jury instruction regarding Taylor’s alibi, (2) lay a proper foundation to impeach Franklin’s testimony regarding his conflicting accounts of the night in question, (3) object to improper rebuttal testimony regarding Taylor’s alibi, and (4) effectively confront the State’s fingerprint expert.

A. Alibi Jury Instruction

¶ 26. Taylor asserts that he introduced two theories of defense at trial — alibi and misidentification. Although defense counsel requested a jury instruction on the misidentification issue, which was refused, he failed to request an “alibi instruction.” Taylor argues he was prejudiced by defense counsel’s failure to request an alibi instruction because it resulted in the jury not being instructed regarding one of his theories of defense.

¶ 27. Traditionally, trial counsel’s decision regarding whether to request certain jury instructions is considered trial strategy. See Smiley v. State, 815 So.2d 1140, 1148 (¶ 31) (Miss.Ct.App.2001) (citation omitted). As noted above, the defendant must overcome the presumption that trial counsel’s decision is sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. While we will not theorize regarding what the exact trial strategy was, it is conceivable that, after hearing the alibi witnesses testify, trial counsel decided to focus the theory of defense around the misidentification issue, for which a jury instruction was requested. Thus, we cannot conclude that Taylor’s trial counsel’s failure to request an alibi jury instruction does not fall under the umbrella of sound trial strategy. This issue is without merit.

B. Proper Foundation to Impeach Franklin’s Testimony

¶ 28. Taylor argues his trial counsel failed to lay the proper foundation to impeach Franklin regarding prior inconsistent statements he had given to the police, prior inconsistent trial testimony given during Johnson’s trial, and prior inconsistent testimony given during the preliminary hearing. Trial counsel was allowed to present a proffer regarding some of the inconsistencies; however, he was unable to cross-examine Franklin in front of the jury about the inconsistencies because he failed to lay the proper foundation under Mississippi Rule of Evidence 613. Taylor asserts this denied him the right of confrontation guaranteed by the Sixth Amendment.

¶ 29. We cannot say that the trial counsel’s failure to lay the proper foundation to impeach Franklin’s testimony was not trial strategy. Although Franklin’s testimony was not impeached by his prior inconsistent statements, trial counsel called Robert Gibson, the officer who took Franklin’s statement, as a defense witness at trial. Trial counsel attempted to elicit testimony from Officer Gibson regarding Franklin’s statements on the night of the incident. However, the trial judge would only let him question Officer Gibson about the length of time Franklin was in the trunk of the vehicle. Trial counsel was allowed to proffer the other testimony he sought to introduce. Thus, we cannot say that it was not trial strategy to attempt to introduce the inconsistencies through Officer Gibson rather than impeach Franklin, even though the inconsistencies ultimately were not allowed. This issue is without merit.

C. Improper Rebuttal Testimony

¶ 30. Taylor next claims his trial counsel’s failure to object to improper rebuttal testimony regarding his alibi constitutes ineffective assistance of counsel. He asserts the State’s introduction of rebuttal witnesses violates Mississippi Rules of Evidence 401 and 613(b). Therefore, he argues his trial counsel should have objected to the introduction of the evidence.

¶ 31. Taylor alleged he was at the home of Shelia Scullark on the night in question until the next morning. Scullark testified that she asked Taylor to stay with her because she had an altercation with her boyfriend that night. After the defense called its two alibi witnesses, the State called Kevin Terry, a police officer with the Greenville Police Department (GPD), and Cathy Drake, the custodian of records for the GPD. Officer Terry testified that he was dispatched to Scullark’s house on April 5, 2009, regarding a domestic disturbance; however, he was not called to her home on April 16, 2009. Drake testified that the GPD received a phone call reporting a domestic situation at Scullark’s residence on April 5, 2009, but that no call was received on the night in question.

¶ 32. The Mississippi Supreme Court has stated that “ ‘counsel’s choice of whether or not to ... make certain objections fall[s] within the ambit of trial strategy' and cannot give rise to an ineffective assistance of counsel claim.” Powell v. State, 806 So.2d 1069, 1077 (¶ 18) (Miss.2001). While the testimony presented did indicate that the police were not called to Scullark’s house on the night of April 16, 2009, it did establish there had been domestic issues there in the past. Thus, although the testimony appeared to discredit one portion of Taylor’s alibi, it strengthened his reason for going to Scul-lark’s house on the night in question. By establishing that Scullark and her boyfriend had disputes in the past, it bolstered Taylor’s claim that he went to Scullark’s house because of a domestic dispute. Accordingly, Taylor has failed to show that his trial counsel’s decision falls outside the ambit of trial strategy. This issue is without merit.

D. State’s Fingerprint Expert

¶ 33. Finally, Taylor asserts his trial counsel was ineffective for failing to challenge the State’s fingerprint expert by either questioning the fingerprint expert about the challenges and problems associated with fingerprint identification or hiring a defense expert to challenge the State’s expert’s findings. The State’s fingerprint expert, Shannon Roy, testified regarding a fingerprint found on the rear driver’s side quarter panel of Franklin’s vehicle. She stated that the fingerprint matched a known fingerprint of Taylor’s.

¶ 34. “ ‘[C]ounsel’s choice of whether or not to ... call witnesses [or] ask certain questions ... fall[s] within the ambit of trial strategy’ and cannot give rise to an ineffective assistance of counsel claim.” Powell, 806 So.2d at 1077 (¶ 18). Accordingly, the decision to question the fingerprint expert about the reliability of fingerprints or to acquire a defense fingerprint expert falls within trial strategy. When questioning the fingerprint expert about the reliability of fingerprint analysis, even if negative aspects regarding the science were introduced, the reliability of fingerprint analysis would almost certainly have been noted as well. Furthermore, if trial counsel had called a defense expert, that expert may have agreed with the State’s fingerprint expert’s findings, thus strengthening the State’s case. Accordingly, this issue is -without merit.

V. Denial of Motion for New Trial

¶ 35. A motion for a new trial challenges the weight of the evidence. See Bush, 895 So.2d 836, 844 (¶ 18) (citation omitted). Appellate courts “will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. When reviewing the denial of a motion for a new trial, this Court must view the evidence in the light most favorable to the verdict. Id. Taylor’s entire argument regarding the denial of his motion for a new trial is contained in one paragraph of his brief in which he argues the verdict was against the overwhelming weight of the evidence because it rested entirely on the conflicting testimony of a single eyewitness and one distorted fingerprint.

¶ 36. Here, the victim in the case testified extensively about the events on the night in question and identified Taylor as the perpetrator. The jury “may believe or disbelieve, accept or reject the utterances of any witness.” Conley v. State, 790 So.2d 773, 807 (¶ 138) (Miss.2001) (citation omitted). In this case, the jury chose to believe Franklin’s testimony. Furthermore, Taylor’s fingerprint was found in Franklin’s car, which was testified to by an expert. Accordingly, this issue is without merit.

¶ 37. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, ARMED ROBBERY; COUNT II, ARMED CARJACKING; COUNT III, KIDNAPPING; COUNT IV, HOUSE BURGLARY; AND COUNT V, POSSESSION OF A FIREARM BY A FELON AND SENTENCES OF TWENTY YEARS FOR COUNT I, TWENTY YEARS FOR COUNT II, TWENTY YEARS FOR COUNT III, TEN YEARS FOR COUNT IV, FIVE YEARS FOR COUNT V, AND A TEN-YEAR FIREARM ENHANCEMENT, WITH THE SENTENCES IN ALL COUNTS TO RUN CONSECUTIVELY TO EACH OTHER, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

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