author: COLEMAN, Justice,

text:
    EARTHGRAINS BAKERY GROUP, INC. f/k/a Sara Lee Bakery Group, Inc. v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY.
    No. 2012-CC-01522-SCT.
    Supreme Court of Mississippi.
    Feb. 13, 2014.

      Timothy W. Lindsay, Kristi Haskins Johnson, Ridgeland, attorneys for appellant.
    Albert B. White, Madison, Leanne Franklin Brady, attorneys for appellee.
    Before RANDOLPH, P.J., KING and COLEMAN, JJ.
   COLEMAN, Justice,

for the Court:

¶ 1. The Mississippi Department of Employment Security (MDES) determined that distributors for Sara Lee Bakery Group, Inc. (now Earthgrains Bakery Group, Inc.) were agent drivers and commission drivers for Sara Lee, rather than independent contractors, such that Sara Lee was required to pay unemployment insurance taxes for the distributors. The circuit court affirmed, and Sara Lee appealed. Finding that MDES failed to apply the law correctly and that its decision was not supported by substantial evidence, we reverse.

Facts and Procedural History

¶ 2. In 2006, Sara Lee restructured its distribution process in Mississippi from having employee distributors to independent contractor distributors. However, in January 2007, MDES determined that Sara Lee’s independent contractor distributors actually were employees under Mississippi Code Section 71 — 5—11(J)(14) because they were “controlled and directed in the performance of their work.”, MDES found the existence of an employer/employee relationship and required Sara Lee to pay unemployment insurance taxes for the distributors. Sara Lee appealed the decision. A telephonic hearing with an administrative law judge (ALJ) was held on October 26, 2007.

¶ 3. Sara Lee’s first witness was Robert Fanelli, who worked for the consulting business that helped Sara Lee put the independent contractor distribution system in place. The transition was made in Mississippi in 2006, and by the time of the hearing, Sara Lee had restructured in fourteen states. Prior to 2004, Sara Lee had a fleet of trucks for distribution and employed all of its distributors nationwide. Sara Lee terminated its distributor employees, and the distributors were given the option to set up their own companies and purchase distribution territories from Sara Lee; they would have the exclusive rights to distribute Sara Lee’s products in the geographical area that they purchased. Sara Lee is the manufacturer, but it no longer has a distribution arm in the states that have converted to the independent contractor system; the territory owners are the distributors, operating their own independent distribution businesses.

¶ 4. The territory owners are corporations, and Sara Lee has a contract with each distributor corporation, not with individuals. Fanelli explained that these are “setup to be truly independent distributor contractor relationships.” He said the contract between Sara Lee and the distributor is meant to be clear that Sara Lee “does not retain any right to control the manner and means of performance” of the distributor, and the agreement specifies that the distributor is to “be an independent contractor for all purposes.” Distributors are allowed to sell all or part of their territory to third parties. They are allowed to buy and distribute other products, except products that are direct competitors to Sara Lee. They can hire employees or agents to do any part of the business, such as drive trucks or negotiate prices. The territory owners are responsible for buying or leasing their own trucks, as opposed to Sara Lee providing trucks as it did for its employees under the old system.

¶ 5. The distributors have the option of putting a Sara Lee logo on their trucks, and Sara Lee pays them a weekly advertising fee of $50 if they choose to do that. They can earn an additional $50 per week by purchasing and wearing shirts with Sara Lee’s logo on them. The shirts have the words “Independent Operator” under the Sara Lee logo. Distributors are not required to do either of these things, and some choose not to. Sara Lee does not pay wages or salaries to the distributors, other than the weekly advertising fee if the distributors opt to participate. The distributors’ profits come from selling the products at a higher price than they paid Sara Lee for them. Distributors incur their own expenses in operating their businesses, including the cost of fuel, vehicle maintenance and insurance, office and administrative expenses, health insurance, and taxes.

¶ 6. Fanelli testified that Sara Lee does not provide instructions for how the distributors should operate their distribution businesses; Sara Lee does not have any control over hiring or firing the distributors’ employees or the hours they work; Sara Lee does not provide office space; and the distributors do not submit reports to Sara Lee. Sara Lee does have a right to terminate its contract with a distributor for breach of contract (i.e., failure to deliver products). If the distributor wants to get out of the business, he has to sell the territory. Sara Lee has a right to reject a buyer in a few limited situations, such as if the buyer has had several convictions for driving under the influence or a history of criminal activity, and those terms are in the contract. Sara Lee also has a first right of refusal to buy the territory back at the distributor’s asking price.

¶7. Sara Lee’s second witness was John Shepard, Director of Alternative Distribution Systems for Sara Lee. Shepard explained how Sara Lee converted from an employee distribution system to an independent contractor distribution system by offering current distributors the opportunity to purchase territories. He corroborated Fanelli’s testimony that the distributors are independent contractors, not Sara Lee employees. Shepard explained that the distributors resigned as Sara Lee employees, set up S-corporations, and now operate under their own names. Shepard said that the distributors must be S-corporations, and they cannot be individuals or sole proprietorships. Because the distributors operate their own distribution companies, they are allowed to sell any products in or out of their territories except products that directly compete with Sara Lee. Shepard testified that the distributors do not receive wages or benefits from Sara Lee; the distributors can hire their own employees; Sara Lee does not have control over the hours the distributors work; Sara Lee does not provide training to the distributors; Sara Lee does not offer health insurance or truck insurance to the distributors; the distributors are responsible for their own taxes; and Sara Lee does not have any involvement with running the distributors’ day-to-day businesses. He said the distributors are responsible for all aspects of their businesses, including assuming “all the risk associated with owning and operating that business.”

¶ 8. Marlene Harper, Chief of Technical Services for MDES’s tax department, testified for MDES. MDES asserted that an agreement is not proof of an independent contractor relationship and that Sara Lee could not “write themselves out from under Unemployment Insurance Law” by saying in their contract that they had an independent contractor relationship. MDES did not present any additional witnesses or evidence.

¶ 9. After the telephonic hearing, on November 21, 2007, MDES sent an Amended Decision to Sara Lee stating that, in addition to being employees under Mississippi Code Section 71-5-ll(J)(14), MDES found that the distributors were “commission drivers” of Sara Lee under Section 71 — 5—11(J)(2). Sara Lee sent a letter to the ALJ stating its opposition to MDES being allowed to amend its decision after the telephonic hearing. Sara Lee maintained that both the original decision of January 31, 2007, and the amended decision of November 21, 2007, were incorrect, as the independent operator distributors did not satisfy the standards for “employment” under either subsection (J)(2) or (J)(14). Sara Lee asked for the November 21 amended decision to be dismissed, but in the alternative, it requested a hearing and an opportunity to brief the issue fully.

¶ 10. On December 13, 2007, the ALJ issued a decision in which he concluded that the independent operator distributors were not employees under Section 71-5-11(J)(14), nor were they “commissioned drivers” under Section 71 — 5—11(J)(2). However, the ALJ indicated that there was a question as to whether the distributors may be “agent drivers” under subsection (J)(2)(a). The ALJ continued the case on that issue and gave the parties two weeks to request that the matter be reconvened to submit additional evidence. Sara Lee requested that the telephonic hearing be reconvened with the limited purpose of presenting evidence on the agent-driver issue.

¶ 11. The second telephonic hearing was held on February 6, 2008, at which additional evidence was presented and several distributors were called as witnesses. John Shepard, Sara Lee’s Director of Alternative Distribution Systems, testified again. In addition to affirming his earlier testimony, Shepard provided further explanation regarding the distributors’ profit and their expenses. Shepard explained that the distributors’ profits come from their “operating margin,” which he said is easy to confuse with commission. Shepard was adamant that the distributors do not make commission, saying, “[T]here is no such thing as a commission on a sale. The margin is what [they] operate under based on their cost of goods and in turn what they sell the product to the customer at. That is their margin.” He testified that the distributors incur expenses starting with the purchase of their route, which ranges from $85,000 to $100,000. The distributors also have to purchase or lease a delivery truck, purchase vehicle insurance, pay for fuel and maintenance of the truck, obtain health insurance, and cover office and administrative expenses. Shepard said distributors can hire employees if they choose to, and Sara Lee has no control over or involvement in the selection of those employees or drivers hired to fill in. He said Sara Lee does not provide supervision or training and it does not monitor who is running the routes.

¶ 12. MDES called two distributors to testify during the second hearing, Devon Whitlock and Jeffery Lindley. Whitlock was an employee distributor for Sara Lee prior to the conversion to independent operators in 2006. He purchased his territory from Sara Lee for $59,000. Whitlock testified that Sara Lee does not provide training; he does not submit reports to Sara Lee like he did as an employee; Sara Lee does not control how he runs his route; and he pays his own expenses, including fuel, truck maintenance, and insurance. Whitlock said that a group of drivers in his area got together and hired two relief drivers. He said Sara Lee did not approve the relief drivers; Sara Lee does not pay them; and he does not get permission from Sara Lee to use a relief driver. He testified that he was not able to negotiate prices with large chain stores, but that he could negotiate with smaller stores. He testified that he received eighteen to twenty-one percent “commission” from Sara Lee.

¶ 13. Lindley was a route salesman and then a route specialist for Sara Lee before becoming an independent operator distributor. He provided a thorough explanation of the distributors’ responsibilities and relationship to Sara Lee. Lindley purchased his route from a distributor, not from Sara Lee, and he paid $51,000. Lindley said that distributors do not make “commission,” as Whitlock had said. He explained that, previously, as a Sara Lee employee, he had received a base salary plus seven percent commission; however, as an independent distributor he purchases product from Sara Lee at a discounted price and then sells it to customers at a wholesale price, and his profit comes from the difference between the discounted rate and the wholesale price. He said some people confuse that with “commission,” but it is not commission. The discounted rate is between twelve and twenty-one percent, depending on the customer. Lindley testified that he makes more money as an independent contractor than he did as an employee, but he has to pay more expenses, such as taxes, fuel, and office supplies. Lindley testified that he is not closely supervised by Sara Lee; Sara Lee does not have a say in the hours he works or how he runs his route. He confirmed Fanelli’s and Shepard’s testimony that he operates a Subchapter S-Corporation and that he is not an agent of Sara Lee.

¶ 14. The ALJ issued two decisions on March 26, 2008. First, consistent with his earlier opinion, he concluded that an employer/employee relationship did not exist under Section 71-5-ll(J)(14). In that opinion, he explained that Sara Lee made “no direct payments to distributors ... for the sale of its products,” and because wages were not paid by Sara Lee, the issue of Sara Lee’s control over the distributors need not even be addressed. He explained that the distributors’ profit comes from “the difference between what they pay Sara Lee for the products and what they are able to sell the produces] for to the retailers[,]” and he said that arrangement did “not even constitute a true commission.”

¶ 15. In his second opinion, addressing Section 71-5-ll(J)(2)(a), the ALJ concluded that the distributors were “commissioned drivers” and “effectively agents of Sara Lee.” Thus, he found that there was, in fact, an employer/employee relationship between Sara Lee and its distributors under Section 71-5-ll(J)(2)(a) and that Sara Lee was subject to Mississippi’s unemployment insurance laws for the distributors. The second opinion contradicted the first, in which the ALJ had concluded that the distributors were not paid commission by Sara Lee. Sara Lee appealed the ALJ’s decision regarding subsection (J)(2) to the MDES Board of Review. In a two-page decision — with only one paragraph devoted to “findings of fact and opinion” — the Board of Review affirmed the ALJ’s decision. Sara Lee appealed to the circuit court. On September 4, 2012, the circuit court judge entered a one-page order affirming the Board of Review’s decision. Sara Lee filed a notice of appeal.

Standard of Review

¶ 16. A limited standard of review applies to appeals from administrative agencies, and an agency’s decision will not be disturbed unless the decision (1) is not supported by substantial evidence, (2) is arbitrary or capricious, (8) is beyond the scope of authority granted to the agency, or (4) violates a constitutional right. Sprouse v. Miss. Employment Sec. Comm’n, 689 So.2d 901, 902 (Miss.1994). “A rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise.” Id. The Mississippi Employment Security Law provides that the Court’s review on appeal should be limited to questions of law, and the Board of Review’s findings of fact “if supported by evidence and in the absence of fraud, shall be conclusive.” Miss.Code Ann. § 71-5-531 (Rev.2011). However, we have said that “employment security contribution assessments are an excise tax and, therefore, every doubt as to their application must be resolved in favor of the taxpayer and against the taxing power.” Miss. Employment Sec. Comm’n v. PDN, Inc., 586 So.2d 838, 840 (Miss.1991).

Discussion

¶ 17. The purpose of the Mississippi Employment Security Law is to compensate unemployed individuals. Miss. Code Ann. § 71-5-1 (Rev.2011). Employers are required to set aside “unemployment reserves to be used for the benefit of persons unemployed through no fault of their own.” Miss.Code Ann. § 71-5-3 (Rev.2011). The issue on appeal is whether Sara Lee’s distributors are employees of Sara Lee — specifically, agent drivers or commission drivers under Mississippi Code Section 71-5-ll(J)(2)(a) — for the purpose of receiving unemployment benefits. Under Subsection (J)(2), “employment” is defined, in pertinent part, as follows:

Services performed for remuneration for a principal:

(a) As an agent-driver or commission-driver engaged in distributing meat products, vegetable products, fruit products, bakery products, beverages (other than milk), or laundry or dry-cleaning services;....
However, for purposes of this subsection, the term “employment” shall include services described in subsection J(2)(a) and (b) of this section, only if:
(i) The contract of service contemplates that substantially all of the services are to be performed personally by such individual;
(ii) The individual does not have a substantial investment in facilities used in connection with the performance of the services (other than in facilities for transportation); and
(iii) The services are not in the nature of a single transaction that is not part of a continuing relationship with the person for whom the services are performed.

Miss.Code Ann. § 71-5-ll(J)(2) (Rev. 2011). Neither party cited, and we have not found, any cases directly addressing subsection (J)(2)(a).

¶ 18. Sara Lee asserts that the ALJ’s decision that the independent operator distributors were agent drivers and commission drivers for Sara Lee was erroneous because the decision was arbitrary and capricious, not supported by the evidence, and contrary to law, because the ALJ failed to consider the factors in Section 71-5 — 11 (J) (2) (i — iii). Sara Lee also asserts that the application of Mississippi Code Section 71-5-ll(J)(2)(a) was unconstitutional.

Whether the ALJ’s decision that the independent operator distributors were agent and commission drivers for Sara Lee was erroneous because the ALJ failed to correctly apply the law.

¶ 19. The ALJ concluded that the distributors were agent and commission drivers for Sara Lee under Mississippi Code Section 71 — 5—11 (J) (2) (a), which provides that employment includes “services performed for remuneration for a principal ... [a]s an agent-driver or commission-driver engaged in distributing ... bakery products[.]” Miss.Code Ann. § 71-5-11(J)(2) (Rev.2011).

A. Services Performed for Remuneration

¶20. For services to be considered “employment” under Section 71 — 5—11 (J)(2), it must first be determined that the services were “performed for remuneration for a principal.” Id. In the ALJ’s opinion regarding Section 71 — 5—11(J)(14), he stated that “Sara Lee makes no direct payments to distributors ... for the sale of its products,” and that “MDES failed to establish wages were paid by Sara Lee to the distributors.” However, in his second opinion — issued the same day — the ALJ removed that language and held that the distributors were “agent and commissioned drivers.” He reasoned as follows:

Distributors receive remuneration from Sara Lee for their services in the forms of advertising money for wearing uniforms and having Sara Lee logos on their trucks, and in the form of weekly checks from Sara Lee. They make a profit from the difference between what they pay Sara Lee for the products and what they are able to sell the produces] for to the smaller retailers within their territories, but they make most of their income from the sale of products to large retailers, with whom Sara Lee has negotiated the price, and further under this arrangement Sara Lee buys the credit vouchers from the distributor, and collects the payments from the retailers. The distributor does effectively sell the product to the retailer at a price, which the retailer pays Sara Lee for the product, and Sara Lee pays the distributor a percentage from the sale.

Sara Lee asserts that the ALJ’s finding is contrary to law and not supported by the evidence.

¶ 21. Although “remuneration” is not defined in the act, in other contexts involving the Employment Security Law, the Court has held that “remuneration for personal services” is equivalent to “wages,” defining it as “consideration paid by an employer to an employee for services rendered by the employee to employer.” Miss. Employment Sec. Comm’n v. Jones, 826 So.2d 77, 81 (¶ 14) (Miss.2002) (quoting Miss. Employment Sec. Comm’n v. Medlin, 252 Miss. 146, 171 So.2d 496, 499 (1965)). The Medlin Court went on to say that, under the terms of the Unemployment Compensation Act (now the Employment Security Law), “money earned by self-employed persons cannot in any way be considered as ‘wages.’ ” Medlin, 171 So.2d at 499. The distributors at issue are self-employed or, more accurately, employees of their own corporate entities. The distribution agreements are between Sara Lee and the distribution companies, not with the individual distributors whom MDES would label employees of Sara Lee. The profit made by the distribution companies does not originate with Sara Lee and cannot be considered “wages.” Medlin, 171 So.2d at 499.

¶ 22. Sara Lee argues that the weekly advertising fee does not constitute remuneration from Sara Lee, as the ALJ found. The distributors have an opportunity to earn an extra $100 per week by putting a Sara Lee logo on their truck and by wearing a shirt with a Sara Lee logo. Notably, the shirts say “Independent Operator” under the Sara Lee logo. However, distributors are not required to do either of these things. We find that the option to enter into an advertising agreement, which is not required, for payment of a maximum of $100 per week is not sufficient to be considered remuneration for services performed. The service performed is distribution of products, not advertising. The $100 advertising fee is for a minor service unrelated to the primary service of distribution, and it does not constitute remuneration for distribution services.

¶ 23. Sara Lee does not pay the distributors a commission, which would be a set percentage of Sara Lee’s profit from the product sold by the distributor. See Black’s Law Dictionary 272 (6th ed.1990). The distributors purchase products from Sara Lee at a discounted price, then sell the products to customers at a wholesale price. The difference in the discounted price and the wholesale price is their “operating margin” or profit. One distributor, Whitlock, called the method of payment “commission,” but he did not contradict the testimony from Lindley and Shepard regarding the actual method of earning, which, as the ALJ correctly found the first time, was not in fact a commission.

¶ 24. For smaller stores, the distributor purchases products from Sara Lee at the discounted rate, sells the product to the customer at a wholesale price, and the customer pays the distributor directly; Sara Lee never sees the money. The distributor’s profit, then, is the difference in what he paid Sara Lee and what he charged the customer. The distributor’s profit is the same for larger stores, but the larger stores — usually chain retail stores with multiple locations — purchase the goods from the distributor in one of two ways: cash or a line of credit. The distributors then have the option to sell then-accounts receivable — the lines of credit— to Sara Lee. When Sara Lee purchases an account receivable that exceeds what the distributor already owes Sara Lee for purchasing its products, Sara Lee writes the distributor a settlement check for the difference, which creates the distributor’s profit. The profit the distributor receives, then, would be equal to the wholesale price the customer paid either in cash or through a line of credit — which Sara Lee may purchase so that the distributor does not have to collect from its accounts receivable — less the discounted price of the product. The larger chain stores often elect to pay by line of credit, so the accounts receivable that Sara Lee purchases frequently come from these larger stores. Thus, Sara Lee is not paying the distributors wages or commission, it is purchasing accounts receivable from them. Sara Lee does not pay the distributors any commission or wages, and therefore, the distributors cannot be considered to be remunerated for personal services.

¶ 25. Similarly, the portion of the Mississippi Administrative Code that pertains to the Mississippi Employment Security Law addresses newspaper and magazine distributors and provides that those distributors are not employees of the publisher for whom they distribute products:

A newspaper distributor who owns his own truck, hires or discharges his or her own employees or helpers, distributes newspapers or magazines in his own territory, and keeps track of his or her own records as to sales and collections, with all sales to such distributor by the publisher and all magazines or newspapers returned within certain limited period being credited to the distributor, who receives no salary, wages or other remuneration from the publisher, no record being kept on where the distributor disposes of the magazines or newspapers which are taken by him or her, is not an employee of the publisher for the reason that the distributor’s remuneration for his or her services or activities in distribution of magazines or newspapers is derived solely from the resale of magazines or newspapers to customers.

Miss. Admin. Code 20-1-101:603.07 (2012). The distributors at issue are much like the newspaper and magazine distributors described above. The distributors for Sara Lee own their own trucks, hire them own employees, distribute products in their territories, keep up with their own sales, and return outdated products to Sara Lee for a credit. They do not provide reports to Sara Lee, and they do not receive a salary or wages from Sara Lee. Thus, analogous to the newspaper and magazine distributors, the distributors for Sara Lee would not be employees of Sara Lee “for the reason that the distributor’s remuneration for his or her services or activities in distribution of [Sara Lee products] is derived solely from the resale of [Sara Lee products] to customers.” Miss. Admin. Code 20-1-101:603.07.

¶ 26. We conclude that the distributors’ income comes from the difference in the price they pay Sara Lee for products and the price the customers pay, less the distributors’ business and operating expenses. The method by which the distributors receive income does not constitute “remuneration of services” because the distributors are not being paid a salary, wages, or commission by Sara Lee. Even if the arrangement did constitute remuneration for services, the distributors would be precluded from classification as “agent drivers” and “commission drivers” by the required factors in subsection (J)(2), as discussed below.

B. Required Factors under Section 71-5-ll(J)(2)

¶27. Sara Lee argues that the ALJ’s finding that the independent operator distributors are “agent drivers” and “commission drivers” under subsection (J)(2)(a) was erroneous because the ALJ failed to consider the factors in Section 71-5-11 (J)(2)(i — iii). Under that section, “employment” includes “[s]ervices performed for remuneration for a principal” by an “agent-driver or commission-driver engaged in distributing ... bakery products” only if:

(i) The contract of service contemplates that substantially all of the services are to be performed personally by such individual;
(ii) The individual does not have a substantial investment in facilities used in connection with the performance of the services (other than in facilities for transportation); and
(iii) The services are not in the nature of a single transaction that is not part of a continuing relationship with the person for whom the services are performed.

Miss.Code Ann. § 71 — 5—11 (J)(2)(i — iii) (Rev. 2011). The absence of any one of these factors would preclude the applicability of the “employment” relationship described in subsection (J)(2)(a). The statute provides that “the term ‘employment’ shall include services described in subsection J(2)(a) ... only if” the three listed factors are present. The inclusion of the word “and” after the second factor is evidence that all three factors must be present. Sara Lee asserts that the ALJ “completely ignored” these factors, therefore, the ALJ’s analysis was incomplete and contrary to law. We agree that a discussion of the applicability of these factors is absent from the ALJ’s opinion, thus, the ALJ failed to apply the law correctly.

¶ 28. The first requirement for bringing a relationship under subsection (J)(2)(a) is that “[t]he contract of service contemplates that substantially all of the services are to be performed personally by such individual.]” Miss.Code Ann. § 71-5-ll(J)(2)(i) (Rev.2011). Sara Lee argues that the distribution agreements between the distributors and Sara Lee “are not personal service contracts and do not contemplate that substantially all (or any) of the services are to be performed by an individual,” therefore, subsection (i) cannot apply. Sara Lee states that the distribution agreements are between Sara Lee and distribution companies, not individuals. Further, Sara Lee maintains that the distribution companies have the authority to hire any employees they need or want to handle the actual distribution or any other services, and no one individual is required personally to fulfill the terms of the contract. We find these statements to be accurate based on the terms of the distribution agreement and the testimony from the hearings.

¶29. The distribution agreement requires that the distributor be a “business entity.” John Shepard testified that the distributors must be S-corporations, and they cannot be individuals or sole propri-etorships. The distribution agreement is executed on behalf of a company, not an individual, and the agreement does not require a certain individual to perform the work. The facts at hand do not satisfy the first requirement that “[t]he contract of service contemplates that substantially all of the services are to be performed personally by such individual.” Miss.Code Ann. § 71 — 5—11 (J)(2)(i) (Rev.2011). Therefore, the independent operator distributors could not be classified as agent or commission drivers under Section 71-5-ll(J)(2)(a). The absence of only one of the three required factors precludes classification of an employment relationship under Section 71 — 5—11 (J)(2)(a), thus, the independent operator distributors could not be agent drivers or commission drivers under Section 71-5-ll(J)(2)(a).

¶ 30. Again, we bear in mind the standard that any doubts as to the application of employment security contribution assessments “must be resolved in favor of the taxpayer and against the taxing power.” PDN, 586 So.2d at 840. We conclude that the ALJ erred in determining that the independent operator distributors were agent or commission drivers for Sara Lee, because his determination was not supported by the evidence, and he failed to apply the law correctly. The distributors do not receive remuneration for services from Sara Lee and they do not have personal service contracts with Sara Lee, so they do not satisfy the requirements for classification as employees under Section 71 — 5—11 (J)(2). Because the forgoing issue is dispositive, we decline to address Sara Lee’s alternative arguments that the ALJ’s decision is arbitrary and capricious and that the application of Section 71-5-ll(J)(2)(a) is unconstitutional.

Conclusion

¶ 31. The ALJ’s decision that the independent operator distributors were agent and commissioned drivers for Sara Lee was erroneous because the ALJ failed to apply the law correctly and the decision was not supported by substantial evidence. The Board of Review and circuit court erred in affirming the ALJ. We reverse the circuit court’s affirmance of the Board of Review and the ALJ, and we render judgment in favor of Sara Lee.

¶ 82. REVERSED AND RENDERED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, AND PIERCE, JJ., CONCUR. KING, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . The Employment Securities Law was amended effective July 1, 2007, and Section 71-5-11(I)(14) became Section 71 — 5— 11(J)(14). The briefs refer to (J)(14), but there are references to (I)(14) throughout the record. The section numbers were changed again after a 2013 amendment, and the relevant section is again (I)(14). See Miss.Code Ann. § 71-5-ll(I)(14) (Supp.2013). However, consistent with the parties' briefs, we refer to (J)(14).

      . Subsection (J)(14) defines employment as: "Services performed by an individual for wages shall be deemed to be employment subject to this chapter unless and until it is shown to the satisfaction of the department that such individual has been and will continue to be free from control and direction over the performance of such services both under his contract of service and in fact; and the relationship of employer and employee shall be determined in accordance with the principles of the common law governing the relation of master and servant.” Miss.Code Ann. § 71 — 5—11(J)(14) (Rev.2011).

      . Five distributors were available to testify, but the other three were not called, as the parties agreed that their testimony would be cumulative.

      . MDES cross-appealed the ALJ's decision on subsection (J)(14), and the Board of Review affirmed; MDES did not appeal to the circuit court.

      . With regard to the ALJ’s statement that Sara Lee negotiates prices with large retailers and MDES’s argument that Sara Lee has control over the distributors because it negotiates prices to which the distributors must adhere, we note the express terms of the distribution agreement:

        SALES TO CHAINS: In order to enable DISTRIBUTOR to pursue business opportunities with Chains, which may require standard price, delivery and other sales terms for all of its Outlets (both in and outside of the Sales Area), DISTRIBUTOR hereby designates COMPANY and COMPANY hereby agrees to act, as DISTRIBUTOR’S agent for the specific purpose of negotiating such terms with Chains having Outlets in the Sales Area, and for no other purpose ... This appointment of COMPANY as DISTRIBUTOR’S agent shall not prevent DISTRIBUTOR from having the right to negotiate prices and terms directly with a Chain or selling Products to the Chain at whatever prices and terms DISTRIBUTOR can negotiate. In addition, DISTRIBUTOR shall have the right to revoke the designation of COMPANY as DISTRIBUTOR'S agent at any time on thirty (30) days notice....
      This section clearly indicates that the distributors set up an agency agreement with Sara Lee to assist in negotiating prices, which the distributors may revoke at their option. Fa-nelli explained that the agreement included this provision because local managers of large chain stores often do not have the authority to negotiate prices. Instead, the distributor would have to travel to some far away city to negotiate prices at a central office. Thus, the distributors can elect to send Sara Lee to those locations to negotiate on their behalf. Should the distributor wish to negotiate with large chain stores on its own behalf, the agreement explicitly provides for that. Under the terms of this agreement, then, Sara Lee does not have control over the distributors— the agreement expressly contemplates that Sara Lee is the agent, which the distributor may terminate at any time, and the distributor is the principle.

      . See also Matter of Balhorn-Moyle Petroleum Co., 315 N.W.2d 481, 484 (S.D.1982) ("although the agreement uses the term 'commission,' Hemenway’s earnings, which flow from self-employment, cannot be wages”); Holman Enter. Tobacco Warehouse v. Carter, 536 S.W.2d 461, 462-63 (Ky.1976) (citing Medlin, 171 So.2d 496); Micca v. Administrator, Unemployment Comp. Act, 26 Conn.Supp. 16, 209 A.2d 682, 684 (1965) ("it seems quite clear that a person seeking self-employment is not exposing himself to the labor market but has in fact withdrawn from it to become involved in his own enterprise. In such a case, his earnings are not wages as defined by statute”). Although the cases cited here dealt with individuals who had left employment to pursue self-employment, then sought unemployment compensation, the definition of "wages” should be the same for all matters pertaining to unemployment compensation and the respective states’ unemployment compensation acts.

      . This is akin to the analysis applied under federal security law to corporate officers who perform only minor services for a corporation. Other jurisdictions have held that an officer of a corporation who "performs only minor services for the corporation is not an employee!.]" Idaho Ambucare Ctr., Inc. v. United States, 57 F.3d 752, 755 (9th Cir.1995) (discussing 26 U.S.C.A. § 3121(d)(1) and the corresponding Employment Tax Regulations found at 26 C.F.R. §§ 31.3121(d)-1(b), 31.3306(I)-1(e)). See also Nu-Look Design, Inc. v. C.I.R., 85 T.C.M. (CCH) 927, 2003 WL 548583 (T.C.2003), aff'd, 356 F.3d 290 (3d Cir.2004) (same); Western Mgmt., Inc. v. United States, 45 Fed.Cl. 543, 549 (Fed.C1.2000) (same).

      . Similarly, see Cent. Ill. Pub. Serv. Co. v. United States, 435 U.S. 21, 23-24, 98 S.Ct. 917, 55 L.Ed.2d 82 (1978) (reimbursement for employees’ lunch expenses did not qualify as "wages” subject to withholding because lunch payment was "unrelated to the employee's specific job title, the nature of his work, or his rate of pay”).

      . The fact that some customers elect to pay by line of credit rather than paying the distributors directly in cash does not render Sara Lee’s purchase of those lines of credit a form of commission. In Mississippi Employment Security Commission v. PDN, Inc., 586 So.2d 838 (Miss.1991), nurses placed by PDN, a medical placement service, were “paid by the service recipient or PDN, a matter determined solely by the agreement of the nurse and recipient.” Id. at 842. The Court distinguished other cases in which "clients were contractually forbidden to pay the nurses directly” and "the workers were paid solely by the referral agency who billed and collected from the service recipient.” Id. (citations omitted). Weighing the method of payment along with other factors, the Court concluded that an employer/employee relationship did not exist between PDN and the nurses. Id. at 842-43.


source: Caselaw Access Project

author: RANDOLPH, Presiding Justice, KITCHENS, Justice,

license: Public Domain

text:
    J.C. WILLIAMS v. STATE of Mississippi.
    No. 2011-CT-00944-SCT.
    Supreme Court of Mississippi.
    Feb. 13, 2014.

      J.C. Williams, appellant, pro se.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
   ON WRIT OF CERTIORARI

RANDOLPH, Presiding Justice,

for the Court:

¶ 1. J.C. Williams was convicted of the sale of cocaine in the Circuit Court of Jones County, Mississippi. Williams was adjudicated a habitual offender and a subsequent drug offender. Upon application of those recidivist statutes, his sentence was enhanced to forty years in the custody of the Mississippi Department of Corrections (MDOC), with thirty years to serve and ten years suspended. On appeal, Williams argued that the circuit court “erred in amending the indictment to charge him as a habitual offender.” Williams v. State, 131 So.3d 1198, 1199 (Miss.Ct.App.2012). The Court of Appeals rejected that argument and unanimously affirmed Williams’s conviction and sentence. Id. Following the Court of Appeals’ denial of Williams’s motion for rehearing, he filed this pro se petition for writ of certiorari, which this Court granted. Williams v. State, 119 So.3d 328 (Miss.2013).

FACTS AND PROCEDURAL HISTORY

¶2. Williams was indicted by a grand jury of “willfully, unlawfully, feloniously and knowingly selling] or transfer[ing][c]ocaine (less than .1 gram)-” See Miss. Code Ann. § 41-29-139 (Rev. 2013). His indictment made no mention of habitual-offender status. Three days before trial, the State filed a motion to amend the indictment to charge Williams as a recidivist pursuant to Mississippi Code Section 99-19-81. The motion was served on defense counsel the same day. The circuit court granted the State’s motion to amend the indictment following jury selection. Subsequently, Williams was found guilty of the sale of cocaine and sentenced on the same day, as a recidivist, to forty years in the custody of the MDOC, with thirty years to serve and ten years suspended.

¶ 3. Williams appealed his sentence as a habitual offender, arguing that the circuit court “erred in amending the indictment to charge him as a habitual offender.” Williams, 131 So.3d at 1199. In unanimously affirming Williams’s conviction and sentence, the Court of Appeals held:

Williams has offered no evidence to show he was “unfairly surprised” by the amendment or that he was unable to present a defense. Furthermore, since an amendment charging a defendant as a habitual offender does not affect the substance of the crime charged, but only the sentencing, Williams’s defense to the sale-of-cocaine charge was unaffected by the amendment.

Id. (citing Adams v. State, 772 So.2d 1010, 1020-21 (Miss.2000)).

¶ 4. Williams’s motion for rehearing was denied by the Court of Appeals, and he filed his pro se petition for writ of certiora-ri, which we granted.

ISSUE

¶ 5. On writ of certiorari, we will address the following issue:

Whether the circuit court erred in granting the State’s motion to amend the indictment to charge Williams as a recidivist.

ANALYSIS

¶ 6. “The circuit court’s decision to allow an indictment to be amended is a question of law.” Powell v. State, 80 So.3d 849, 852 (Miss.Ct.App.2012) (citing Jackson v. State, 943 So.2d 746, 749 (Miss.Ct.App.2006)). “Questions of law receive a de novo review.” Id. (citing Jones v. State, 912 So.2d 973, 975 (Miss.2005)).

¶ 7. Presently, Uniform Rule of Circuit and County Court 7.09 provides, in pertinent part, that “[i]ndictments may ... be amended to charge the defendant as an habitual offender....” URCCC 7.09. “Rule 7.09 ‘does not speak to the timing of the amendment[.]’ ” McCain v. State, 81 So.3d 1055, 1061 (Miss.2012) (quoting Gowdy v. State, 56 So.3d 540, 545 (Miss.2011)). But the rule implicitly recognizes a right to fair notice by prohibiting amendments to indictments where the defendant is not “afforded a fair opportunity to present a defense” or is “unfairly surprised[.]” URCCC 7.09. This Court recently has held that “adequate notice is achieved through formal pleadings which include the specific amendment to be offered and which are filed sufficiently in advance of trial to ensure that a defendant will have a ‘fair opportunity to present a defense’ and will not be ‘unfairly surprised.’ ” Boyd v. State, 113 So.3d 1252, 1256 (Miss.2013) (quoting URCCC 7.09). Whether notice of a possible enhanced sentence was given sufficiently in advance of trial “should be considered on a case-by-case basis.” McCain, 81 So.3d at 1061.

¶ 8. Williams never argued before the trial court that he was not prepared to defend or was surprised by the State seeking enhanced punishment under the recidivist statutes. See supra n. 4. As noted by the Court of Appeals, “[o]n appeal, Williams ... offered no evidence” that he was not provided adequate notice. Williams, 131 So.3d at 1199. Likewise, in his petition for certiorari to this Court, Williams has argued that the Court of Appeals erred in finding that he was not “unfairly surprised[,]” but again has failed to argue why his notice was inadequate.

¶ 9. Notwithstanding Williams’s failure to present this argument, we will address the existence of adequate notice, vel non, in the record before us. Through formal pleadings filed three days in advance of trial, the State informed Williams of its intent to seek enhanced punishment under one of Mississippi’s recidivist statutes, Section 99-19-81. The State’s motion specifically provided the details of the prior convictions which would be presented to the trial judge for sentence enhancement (subject to a conviction for the crime charged in the indictment), including the cause numbers, dates, and courts in which they were obtained. Absent an argument as to why Williams’s notice was inadequate, we cannot say, based on the record, that the State failed to provide adequate notice of its intent to seek enhanced punishment for Williams as a recidivist under Section 99-19-81.

¶ 10. However, we cannot reach the same conclusion as to Williams’s enhanced sentence as a subsequent drug offender under Section 41-29-147. The State’s motion placed Williams on notice that it intended to utilize his prior drug conviction, but only for sentence enhancement under Section 99-19-81. The State did not offer the “specific amendment” to charge Williams as a subsequent drug offender. Boyd, 113 So.3d at 1256. Williams was first apprised of that enhancement at his sentencing hearing when the State informed the trial court that he faced a “maximum sentence ... of 60 years” — double what he faced if sentenced only as a habitual offender under Section 99-19-81. Because Williams was not given proper notice in advance of trial of the State’s intent to seek enhanced punishment as a subsequent drug offender under Section 41-29-147, we are compelled to reverse that portion of his sentence.

CONCLUSION

¶ 11. Williams was provided adequate notice in advance of trial that, upon conviction, the State intended to seek enhanced punishment under Section 99-19-81. However, the State failed to provide adequate notice of its intent to seek enhanced punishment under Section 41-29-147. Thus, we affirm in part and reverse in part the judgments of the Court of Appeals and the Circuit Court of Jones County and remand this case to the Circuit Court of Jones County for a new sentencing hearing, where Williams is to be resentenced as a habitual offender under Section 99-19-81 only.

¶ 12. THE JUDGMENTS OF THE COURT OF APPEALS AND THE CIRCUIT COURT OF JONES COUNTY ARE AFFIRMED IN PART AND REVERSED IN PART. THE JUDGMENT OF CONVICTION OF SALE OF COCAINE IS AFFIRMED, THE SENTENCE IS VACATED AND THE CASE IS REMANDED TO THE CIRCUIT COURT OF THE SECOND JUDICIAL DISTRICT OF JONES COUNTY FOR RESENTENCING.

WALLER, C.J., LAMAR, CHANDLER, PIERCE AND COLEMAN, JJ., CONCUR. DICKINSON, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. KITCHENS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.; WALLER, C.J., JOINS IN PART.

KITCHENS, Justice,

concurring in part and dissenting in part:

¶ 13. The majority rightly concludes that Williams was not provided timely notice that the State would seek enhancement of his sentence as a subsequent drug offender and that, for want of proper pretrial notice of the State’s intention in that regard, this portion of his sentence should be reversed. Accordingly, I concur with this aspect of the majority opinion. Moreover, I would affirm Williams’s conviction of the unlawful sale of cocaine, but not as an habitual offender.

¶ 14. I do not agree with the majority’s approval of the trial court’s amendment of the grand jury’s indictment, which was requested in a motion filed by the prosecution some time during the Friday before the trial was to begin on the following Monday morning.

¶ 15. In the present case, Williams was charged with the sale of cocaine, a felony, by the grand jury of the Second Judicial District of Jones County. Although he previously had been convicted in that same jurisdiction and sentenced to serve significant penitentiary terms for two separate and distinct felonies, the grand jury indictment that was returned on March 3, 2009, did not charge Williams as an habitual criminal. It was not until more than seven months later, on Friday, October 9, 2009, that the prosecution filed a motion asking the trial court to elevate the charge by amending the indictment to charge Williams as an habitual offender pursuant to Mississippi Code Section 99-19-81, which exposed Williams to a mandatory thirty-year sentence without possibility of reduction, suspension, or eligibility for parole or probation. The record suggests that the prosecutor had contemplated such a motion at least ten days before it actually was filed and copied to defense counsel; the circuit clerk’s certifications of the two prior sentencing orders — one for robbery in 1998 and the other for cocaine sale in 2007 — were dated September 29, 2009. Thus, after having failed to obtain the grand jury’s approval of proceeding against Williams as an habitual offender, then having waited from very early in March until very late in September to secure the necessary documentation of Williams’s eligibility for habitual-offender status, the prosecutor bided his time for another ten days and sprang his ambush on the accused and his attorney when, at most, some seventy-two hours remained before the scheduled commencement of trial, during most of which the courthouse would be closed for the weekend.

¶ 16. Throughout nearly two centuries of jurisprudence in Mississippi, the grand jury — not the prosecutor and not the circuit judge — has been the only legal entity authorized to bring felony charges into circuit court and this by means of indictments duly considered and approved by at least twelve members of the grand jury at times when at least fifteen of the grand jurors are present and participating. Miss. Const. art. 3, § 27 (“No person shall, for any indictable offense, be proceeded against criminally by information, except ... where a defendant represented by counsel by sworn statement waives indictment ... ”). This Court has recognized that the singular power of indictment possessed by the grand jury is rooted in the bedrock constitutional framework of both our national and state constitutions. See State v. Berryhill, 703 So.2d 250, 258 (Miss.1997) (“The rule that absent waiver only a grand jury can charge a person with a crime such as burglary is found explicitly in the Fifth Amendment of the United States Constitution in cases of infamous crimes, and in Article 3, § 27 of the Mississippi Constitution.”) (citing State v. Sansome, 133 Miss. 428, 97 So. 753, 754 (1923) (holding that Article 3, § 27, requires indictments for all felonies)).

¶ 17. Though some may contend that an allegation of a criminal defendant’s status as an habitual offender under Sections 99-19-81 or 99-19-83 does not constitute a charge, or part of a charge, it is, nevertheless, an unproven accusation in the selfsame way as every other aspect of an indictment’s charging language. Indeed, in this case, the prosecutor’s eleventh-hour motion asked the trial judge to amend the indictment “to charge the defendant as a habitual offender” and the trial court’s order granting that motion authorizes “amending the Indictment in the above styled and numbered cause charging the defendant with Sale of Cocaine as a habitual offender, as the defendant has two prior felony offenses justifying such an enhancement under Mississippi Code Section 99-19-81.” (Emphasis added.) Clearly, the enhancement of a charge becomes part and parcel of the charge.

¶ 18. Although this Court, in recent years, seems to have opened the door for the liberal and late-in-the-game amendment of indictments without the knowledge or consent of the grand jury, the applicable rule itself — Uniform Circuit and County Court Rule 7.09 — seems self-contradictory by saying in the first instance that indictments may be amended as to form but not as to the substance of the offense charged, then authorizing the charging of the defendant as an habitual offender or by elevating the level of the offense by placing the accused in jeopardy of a substantially greater penalty, and this in the absence of any finite limitation upon the time that such charging can be done. See URCCC 7.09 (“All indictments may be amended as to form but not as to the substance of the offense charge.... [However,] [ajmendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.”). Rule 7.09, though undoubtedly well-intentioned, was ill-conceived. Judges and lawyers can engage in endless academic quibbling about what is substantive and what is not; but it is hard to imagine anything more substantive than a prison sentence, or the length of it.

¶ 19. During most of our state’s history, some minor amendment of grand jury indictments was permitted, on a very limited basis, by statute:

[w]henever, on the trial of an indictment for any offense, there shall appear to be any variance between the statement in the indictment and the evidence offered in proof thereof, ... it shall and may be lawful for the court before which the trial shall be had, if it shall consider such variance not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defense on the merits, to order such indictment and the record and proceedings in the court to be amended according to the proof....

Miss.Code Ann. § 99-17-13 (Rev.2007); Miss. 1942 Code Ann. § 2532 (Rev.1956). But the judicial elevation of a charge laid in an indictment, whereby an indicted defendant could become exposed to a greater sentence than that provided for the offense with which the grand jury had charged him, was unknown. For example, a murder charge could be reduced to manslaughter; but a manslaughter charge could not be increased to murder. That is true today; and, moreover, a person who has been indicted for murder cannot have that charge amended or upgraded to a charge of capital murder, unless, of course, the grand jury does it. While this dissenting opinion may be criticized for “comparing apples to oranges” — and, admittedly, these illustrations do not precisely fit the case at hand — nevertheless, experienced criminal law practitioners will readily understand that, conceptually, the comparison is an apt one.

¶ 20. It is of far greater significance that this move by the prosecution to amend Williams’s indictment would generate the need for a drastically different defense strategy, including a studied and fervent effort to reach a palatable compromise with the State and thus avoid the possibility of a mandatory, day-for-day sentence of thirty years. However, when this bombshell of a motion was delivered, it likely was too late for that. Indeed, the district attorney’s office did not have to request, then await the arrival, of documentation of Williams’s conviction records from some distant state, or from a federal court. The documents were right there, among the public records in the Jones County circuit clerk’s office.

¶21. Further, it is not inconceivable that the district attorney’s office itself had maintained files from its earlier prosecutions of Williams, and those files surely would have pointed the prosecution team to the relevant permanent records in the local circuit clerk’s office. Thus, it would not have been at all difficult for the district attorney to ask the grand jury to charge Williams as an habitual offender on the front end of the case, rather than cobbling the habitual-offender allegations onto the indictment at the tail end of things, on the very eve of trial. Since the grand jury, not the prosecutor and not the judge, is the proper entity for bringing felony charges, this would have placed the horse before the cart and would have avoided the awkward mess which this case presents.

¶22. The overarching problem in this case is one of fundamental unfairness. If the grand jury had charged Williams with the sale of cocaine as an habitual offender, listing his prior felony convictions and the statutorily required data about them, the accused and his counsel would have known in early March what they were facing and could have prepared accordingly. Instead, they did not know until some time on the last business day before trial that, if convicted, Williams would receive a mandatory thirty-year sentence which he would be required to serve day for day. Less than two years earlier, on November 9, 2007, Williams had been sentenced, in the same court, to serve ten years for sale of cocaine, the same offense for which he had been indicted in the instant case. Somehow, Williams was out of prison, charged with selling cocaine again, on October 18, 2008 (this offense, for which he was indicted the following March).

¶ 23. It was not until the last business day before his trial that he had any reason to believe that he did not at least stand a chance of being that lucky again. Had Williams and his lawyer known in March, when he was served with his indictment, rather than seven months later and mere hours away from trial, that he was to be prosecuted as an habitual offender, it is reasonable to assume that they would have approached the charge with a greatly heightened level of concern, which surely would have included a more intense effort in the realm of plea bargaining.

¶24. This Court has approved local rules for the Eighteenth Circuit Court District, which is comprised of the Circuit Courts of the First and Second Judicial Districts of Jones County, Mississippi. This trial occurred in the Second District of the county. Rule 4(j) of that court’s rules provides: “Attorneys should file and notice motions to be heard well in advance of trial, if possible.” Loe. R. 18th Cir. Ct. Dist. 4(j). The record is devoid of any indication that it was not possible for the State to have filed its motion to amend the indictment “well in advance of trial,” which it surely did not do. While the majority references the opinion of the Court of Appeals, which notes, “ ‘[o]n appeal, Williams ... offered no evidence’ that he was not provided adequate notice,” and that he does not put forth an argument to this effect in his certiorari petition to this Court, it seems self-evident that a game-changing motion such as this, dropped on a defendant when his trial was only a weekend away, constituted an unfair surprise by definition. See Williams v. State, 131 So.3d 1198, 1199-1200 (Miss.Ct.App.2012).

¶25. Williams’s trial counsel did little to oppose the State’s motion, saying only, and without elaboration, “We would object that this is brought on the part of the prosecution to punish the defendant in exercising his constitutional right for a trial.” Furthermore, in his post-trial motion for new trial or for judgment notwithstanding the verdict, defense counsel does not mention the untimely amendment of the indictment and, indeed, the motion appears to be a crude adaptation of a motion from some other case. While the quality of representation received by Williams is questionable, this Court does not have sufficient information to assess the effectiveness of his counsel. Such issues are best presented in post-conviction proceedings, should Williams choose to undertake such.

¶ 26. After a careful review of the record now before us it is not difficult to discern that Williams was denied due process of law under the Fifth and the Fourteenth Amendments to the United States Constitution and Article 3, Section 14, of the Constitution of the State of Mississippi in light of the unfair surprise visited upon him by the extreme untimeliness of the State’s motion to amend the indictment and the trial court’s granting of it. Accordingly, I would vacate his sentence and remand the case for' resentencing for the unlawful sale of cocaine, without the Section 99-19-81 enhancement.

¶ 27. I therefore concur in part and dissent in part.

KING, J., JOINS THIS OPINION. WALLER, C.J., JOINS THIS OPINION IN PART.

      . See Miss.Code Ann. § 99-19-81 (Rev.2007).

      . See Miss.Code Ann. § 41-29-147 (Rev. 2013).

      .In 1998, Williams pleaded guilty to robbery in the Circuit Court of Jones County (Cause No. 10,407). He was sentenced to ten years in the custody of the MDOC, with six years to serve, four years suspended, and four years of probation.
      In 2007, Williams pleaded guilty to sale of cocaine in the Circuit Court of Jones County (Cause No.2005-143-KR2). He was sentenced to ten years in the custody of the MDOC, suspended except for time served, upon completion of three years post-release supervision and community service.

      . Williams’s counsel objected to the amendment on the ground that the State sought to amend the indictment to include habitual-offender status for the purpose of "punishing] the defendant in exercising his constitutional right for a trial.”

      . Absent his recidivist history, Williams faced a sentence of "not more than thirty (30) years[.]” See Miss.Code Ann. § 41-29-139(b)(1) (Rev.2013).

      . In Boyd, this Court found inadequate notice where the State informed the defendant "during pretrial proceedings on the morning of trial that, if a conviction was obtained, the State would seek to sentence him as a subsequent offender.” Boyd, 113 So.3d at 1256.

      . The dissent opines that the amendment elevated the level of the offense charged in the indictment; thus infringing on the power of the grand jury. While we share in the dissent’s ardent respect for the sole authority of the grand jury to issue an indictment, our disagreement stems from what is constitutionally mandated to be included within that indictment. The United States Supreme Court has held that "[a]n indictment must set forth each element of the of the crime that it charges.... But it need not set forth factors relevant only to the sentencing of an offender found guilty of the charged crime.” Almendarez-Torres v. United States, 523 U.S. 224, 228, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Our Court consistently has held that recidivist statutes "are not criminal offenses and only affect sentencing.” Osborne v. State, 404 So.2d 545, 548 (Miss.1981). As such, prior convictions which are utilized only to enhance the sentence of a recidivist, i.e., those prior convictions which do not constitute elements of the underlying offense, are not constitutionally mandated to be included within the indictment. It is only a rule of this Court which necessitates such inclusion-and another rule of this Court which allows that inclusion to be accomplished by amending the indictment. See URCCC 11.03, 7.09.

      . Miss.Code Ann. § 99-7-9 (Rev.2007) ("All indictments ... must be ... accompanied by [the grand jury foreman’s] affidavit that all indictments were concurred in by twelve (12) or more members of the jury and that at least fifteen (15) were present during all deliberations ... ”).

      . See McCain v. State, 81 So.3d 1055 (Miss. 2012).

      . As noted above, the State obtained certified copies of the sentencing orders from Williams’s prior offenses on September 29, 2009, ten days before the State’s motion to amend the indictment was filed on October 9, 2009. Whatever the State’s reason for delaying the filing of the motion to amend and waiting until the Friday before trial was to begin on Monday, October 12, 2009, the State’s procrastination should not be countenanced by this Court. By obtaining this material from the circuit clerk, the State had begun the process of seeking a game-changing amendment of the charge against Williams. But Williams and his attorney had no clue of the State’s intention until ten days later.

      . Indeed, Rule 8.04(B) of the Uniform Circuit and County Court Rules states that “[t]he prosecuting attorney is encouraged to discuss and agree on pleas which may be entered by the defendant.” URCCC 8.04(B) (emphasis added). As the indictment can always be amended to reduce a charge, the better practice of prosecuting attorneys would be to charge the defendant as an habitual offender in the indictment and use that as a bargaining tool, as opposed to “punish[ing] the defendant in exercising his constitutional right for a trial/’ which Williams’s counsel argued happened in the court below.

      . In the style of the case at the beginning of the motion, an entirely different defendant’s name is struck by pen and ink with J.C. Williams's name handwritten in its place. Similarly, the typed cause number is struck through and replaced by the cause number for Williams’s case. At two places in the body of the motion, Williams’s name is inserted in ink in the place of the name of another defendant with an altogether dissimilar name.


author: KING, Justice,

text:
    Zachary STRINGER a/k/a Zac Stringer v. STATE of Mississippi.
    No. 2013-KA-00586-SCT.
    Supreme Court of Mississippi.
    Feb. 13, 2014.

      Office of State Public Defender by W. Daniel Hinchcliff, George T. Holmes, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before RANDOLPH, P.J., PIERCE and KING, JJ.
   KING, Justice,

for the Court:

¶ 1. Zachary Stringer (Zachary), a minor, was charged with the murder of his younger brother, Justin Stringer (Justin). The jury found Zachary guilty of the lesser-included offense of manslaughter. The trial court sentenced Zachary to twenty years, with ten years to serve and ten years of post-release supervision, with five years reporting. Zachary is to serve his sentence in the custody of the Mississippi Department of Corrections (MDOC) in the Youthful Offender Unit of the Central Mississippi Correctional Facility.

¶ 2. Zachary appeals his conviction and sentence, raising two issues: (1) whether the trial court erred by allowing multiple gruesome photographs of the victim and the crime scene into evidence; and (2) whether the trial court erred in denying Zachary’s motion for judgment notwithstanding the verdict (JNOV). Finding no error, this Court affirms Zachary’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 3. Roger Dale Stringer (Roger), Zachary and Justin’s father, testified that his sons were hunters, and that they were familiar with guns and gun safety. Both boys had gun racks in their rooms, and each had two guns and ammunition. Roger personally taught the boys everything he knew about gun safety, and Zachary had taken a firearm-safety course. According to Roger, Zachary was one of the safest people he had ever seen with a firearm.

¶ 4. On June 11, 2011, Roger had spent quality time with his sons throughout the day and had returned the boys to their mother’s home at approximately 8:15 p.m. According to Roger, a television show was airing at 8:30 p.m. which Zachary wanted to watch. Kim Stringer (Kim), the boys’ mother, was attending a party, so the boys were home alone.

¶ 5. Justin called Kim on her cell phone at approximately 8:21 p.m. He asked Kim where she was and if she could come get him. Kim agreed and told Justin she would pick him up after she was done eating. According to Kim, nothing was unusual about Justin’s call; he did not seem upset, and he just “liked to go places.” At 8:42 p.m., Kim received a phone call from the home phone. Because the party was loud, Kim declined the call and walked away to a more quiet area. A few moments later, Kim received another call from the home phone; this time, it was Zachary. She answered and Zachary told her that Justin had been shot.

¶ 6. Frantic, Kim called Roger and informed him that something was wrong with Justin. Roger immediately drove back to Kim’s house, which was approximately three miles away. While in route, Roger received a phone call from Zachary. Zachary said, “I love you, daddy ... you know that, don’t you?” Roger responded in the affirmative. Then, Zachary told Roger that Justin was dead, and that he had been shot with the .25-06 rifle. Roger called 911 immediately, and the sheriffs office was dispatched to the scene.

¶ 7. Roger arrived at Kim’s house first. Zachary attempted to stop his father from entering the home, but Roger pushed past Zachary. As Roger entered, he saw blood splattered on the wall. Justin’s body was sitting in a chair, and the top of his head was missing. According to Roger, the only thing there was the roof of Justin’s mouth. Roger also noticed Justin’s twenty-gauge shotgun lying between his legs. Blood was on the end of the barrel. Roger stated that the scene did not look right and did not add up. Kim arrived at the house a short while later, but Zachary and Roger did not allow her to enter the home.

¶ 8. Next, police and medical responders arrived at the home. Zachary told Cole Robbins, a medical responder, there was “no use” in entering the home. Despite this warning, Robbins entered and found Justin in a chair with a traumatic gunshot wound to the head. Justin was still breathing but he had no pulse. Zachary told Robbins that he was in his bedroom when he heard the gunshot. Because Zachary’s clothes were bloody, the clothing was collected as evidence. Robbins was allowed to retrieve clean clothes from Zachary’s closet. While in Zachary’s room, Robbins noticed a bloody fingerprint on the closet shelf. He immediately notified Investigator Jamie Singley of this discovery. Investigator Singley entered Zachary’s room and noticed more evidence: a spent .25-06 rifle cartridge casing on the closet floor, bloody footprints on the carpet, and a .25-06 rifle with blood on it. All items were tested, and it was confirmed the blood belonged to Justin. According to Investigator Singley, these findings negated the report of a self-inflicted wound.

¶ 9. Zachary gave three statements to police. On June 13, 2011, Zachary, along with his parents, voluntarily gave the sheriffs office a handwritten statement in which he claimed Justin had shot himself. In pertinent part, Zachary stated that Justin had shot the family dog with a dart gun, and the dog had run into Zachary’s room. Zachary removed the dart from the dog, went into the living room, and returned the dart to Justin. As Zachary left to return to his room, Justin said, “I love you Zac,” and Zachary responded, “I love you too man.” Zachary returned to his room, put his rifle away, and continued to watch a movie. Seconds later, Zachary heard a shot. He ran into the living room, and blood hit him in the face instantly. Zachary ran to Justin, apologized for “all the crap” he had put him through, told Justin he loved him, and gave him a hug. Next, Zachary called his parents and told them Justin had been shot. Following this statement, Investigator Lee Cotton obtained a warrant for Zachary’s arrest, which was served on June 17, 2011.

¶ 10. Zachary gave a second statement to Investigator Singley and Investigator Cotton on August 5, 2011. This time, Zachary’s attorney was present. The statement was written and recorded. Zachary’s second statement began like the first: Justin shot the dog with the dart gun. This time, however, Zachary said that he took the dog to Justin. Zachary stated that he turned to go back to his room when Justin asked if they could talk. Zachary replied, “Hang on man. Let me get us a conversation piece.” Zachary retrieved his .25-06 rifle from his room and returned to the living room. Zachary sat on the couch, and he and Justin talked for about ten minutes. In the recorded statement, Zachary said they talked about hunting. Zachary stated that he got up from the couch, heard a click, the gun went off, and the recoil caused the gun to fly out of his hand. Zachary said that he “did not check the action.” According to Zachary, he went over to Justin, gave him a hug, told him he loved him, and said that he would miss him. Zachary admitted that he put his rifle in the closet, placing it on the top shelf. He had retrieved Justin’s twenty-gauge shotgun, fired a round into the woods, and placed the shotgun between Justin’s legs. Zachary admitted that he “was trying to make it look like an accident.” Zachary realized “it would raise questions” if his rifle was found in the closet, so he placed it on the gun rack.

¶ 11. The third statement was an oral statement given to Ricky Dean, a Mississippi Highway Patrol investigator, on August 12, 2011. According to Dean, Zachary said that Justin had been pestering him with the dart gun, pretending to shoot at him. Zachary told Justin, “if you shoot me with that, I’ll shoot you with this,” referring to his .25-06 rifle. According to Dean’s testimony, Zachary said he had dropped a magazine and loaded a round into the chamber. When Zachary got up, the rifle went off, shooting Justin. Zachary maintained that he did not shoot Justin intentionally.

¶ 12. At trial, experts testified regarding Justin’s manner of death and tests performed on the .25-06 rifle. Dr. Erin Barnhart, deputy chief medical examiner, testified that Justin’s manner of death (accidental shooting or homicide) could not be determined. Neither Dr. Barnhart nor the previous medical examiner was able to determine the angle of trajectory or path of the projectile. According to Dr. Barn-hart, this could have been done if she had the complete skull; however, the skull had shattered into many pieces. Regardless, Dr. Barnhart opined that she still could not have determined whether the death was a homicide or an accident even if she had the benefit of the entire skull.

¶ 13. Lori Beall, a forensic scientist at the Mississippi Crime Laboratory, tested the firearm and the projectiles recovered from the scene. Some of the projectiles were mutilated and were of no comparison value. Beall was able, however, to test a projectile recovered from Justin’s chair and determined that the projectile was consistent with the type of projectile used in a .25-06 rifle, like Zachary’s. Beall also conducted several functional-reliability tests on Zachary’s rifle to determine if the rifle could or would discharge accidentally. The tests did not produce any accidental discharge, and thus confirmed that the rifle was in good working order. Beall also tested the trigger. Roger testified that Zachary’s rifle had a “hard trigger,” which took considerable force to fire. Beall testified that Zachary’s rifle had an adjustable trigger. According to Beall, Zachary’s trigger had never been adjusted, and it took more than five pounds to release the trigger.

¶ 14. Several of Zachary’s family members testified regarding his behavior leading up to and during Justin’s funeral. Debbie Peavy, Zachary’s great aunt, stated that Zachary did not seem upset, and that he had made several strange comments. Peavy said that Zachary, while preparing for Justin’s funeral, modeled his new suit and said, “I look pretty good now[;] maybe I can get all the girls.” Zachary also had expressed that he would get all the Christmas presents now. Peavy testified that Zachary, while watching a video tribute for Justin, laughed and said, “Look at Justin’s teeth ... people won’t be laughing at his teeth anymore. At the wake, Zachary had noticed one of Justin’s female friends and had asked Peavy about her. Peavy informed Zachary that Justin had been talking to and texting the girl. In response, Zachary stated, “Well she’s pretty. I can see why Justin liked her, maybe I’ll try to talk to her now.”

¶ 15. April Markins, Zachary’s aunt, testified regarding a comment Zachary made to her while he was greeting visitors in the receiving line. Markins told Zachary she was sorry about what had happened to Justin, and Zachary replied, “Look at momma and daddy[;] they’re making idiots of themselves.” Ryan Stringer (Ryan), Zachary’s uncle, testified regarding how Zachary was boastful about his new suit. Ryan also overheard Zachary say that he wished Justin could shoot him with the blowgun one more time, and he had overheard Zachary say that Justin had shot him in the foot with the blowgun. Roger testified that, while watching the funeral procession, Zachary commented, “I wonder if that many people would show up at my funeral.”

¶ 16. After both sides had rested, the trial court went over jury instructions. In addition to a murder instruction, the State requested a jury instruction for the lesser-included offense of manslaughter. Defense counsel objected. The trial court, however, allowed the manslaughter instruction. The jury found Zachary guilty of manslaughter. The trial court sentenced Zachary to serve twenty years in the custody of MDOC, with ten years to serve, ten years of post-release supervision, and five years reporting; he also was ordered to pay a $10,000 fine. The trial court denied Zachary’s post-trial motions. Aggrieved, Zachary timely filed his notice of appeal.

ANALYSIS

¶ 17. Zachary raises two issues on appeal: (1) whether the trial court erred by allowing gruesome photographs, depicting the crime scene and autopsy, into evidence, and (2) whether the trial court erred by denying Zachary’s motion for a judgment notwithstanding the verdict (JNOV).

I. Photographs

¶ 18. This Court reviews the trial court’s admission or exclusion of evidence for an abuse of discretion. Davis v. State, 849 So.2d 1252, 1255 (Miss.2003). “Photographs of a victim have evidentiary value where they T) aid in describing the circumstances of the killing and the corpus delicti; 2) where they describe the location of the body and cause of death; and 3) where they supplement or clarify witness testimony.’ ” Id. (citing Westbrook v. State, 658 So.2d 847, 849 (Miss.1995)). “Photographs of the victim[, however,] should not ordinarily be admitted into evidence where the killing is not contradicted or denied and the corpus delicti and the identity of the deceased have been established.” Conners v. State, 92 So.3d 676, 687 (Miss.2012) (quoting Jordan v. State, 995 So.2d 94, 110 (Miss.2008)). Reversal based on the admission of cumulative and/or gruesome photographs is rare. Id. (citing Bayfield v. State, 22 So.3d 1175, 1181 (Miss.2009)).

¶ 19. The trial court admitted thirty-three photographs into evidence, depicting the crime scene, Justin’s body, evidence collected by police, and an autopsy photograph. Zachary takes issue with all thirty-three photographs, specifically those photographs of the crime scene, Justin’s body, and the autopsy photograph. Photographs of the crime scene depict blood splattered on the wall and brain matter and skull pieces scattered on the floor. Photographs of Justin’s body were taken from various angles and depict Justin’s body in a chair with a twenty-gauge shotgun between his legs. The investigators also took closeup photographs of Justin’s injuries. The top of Justin’s head — from his nose upward — was completely gone.

¶ 20. Zachary argues that the photographs admitted into evidence were gruesome, redundant, and more prejudicial than probative. To support his argument, Zachary notes that the trial-court judge stated that the photos were “extraordinarily graphic” and “very difficult,” and yet still allowed the photographs into evidence. Zachary also argues that the trial court failed to limit the number of photographs necessary for any evidentiary point and failed to examine the photographs separately to assess their probative value. According to Zachary, the thirty-three photographs served no evidentiary purpose or probative value, and the photographs were used simply to inflame and arouse the emotions of the jury.

¶ 21. The State concedes that the photographs are gruesome; however, the State claims that the photographs have probative value. According to the State, the photographs provide evidence regarding the circumstances of the shooting, the location of Justin’s body, and the cause of death. The State also argues that the photographs help clarify witness testimony. The State notes that the jury’s guilty verdict as to manslaughter, instead of murder, proves that the jury was not inflamed or aroused by the photographs. Also, the State claims that defense counsel used the photographs in his closing statement to demonstrate that the shooting could not have been intentional.

¶ 22. Undoubtedly, the photographs of Justin’s head injury are difficult to view. However, they have probative value. The trial court reviewed the photographs and, under Mississippi Rule of Evidence 403, properly weighed the probative value against the danger of unfair prejudice. The trial court found that, although difficult to view, the photographs aided in describing the location of the body and cause of death and clarified witness testimony.

¶ 23. Zachary maintains that the photographs were neither necessary for identification purposes nor to identify the cause of death. In addition, Zachary claims that the proof against him showed only that the shooting was an accident and, thus, the photographs were not needed to explain the circumstances surrounding Justin’s death or to clarify any witness testimony. While who killed Justin was not contradicted, the State counters that the manner of death — homicide or accident — was disputed, and that the photographs were relevant to that point.

¶ 24. In Davis v. State, a fifteen-year-old defendant admitted shooting into a camp cabin. Davis v. State, 849 So.2d 1252, 1253 (Miss.2003). The victim was shot in the face, which produced severe injuries and killed him instantly. Id. On appeal, Davis, in pertinent part, argued that the trial court erred by admitting into evidence gruesome photographs of the crime scene and the victim’s autopsy:

Four of the disputed photographs depicted the interior of the camp cabin and the location and relation of Arnold’s body to the interior and blood splatters on the wall and floor. Two other photographs were taken during the autopsy each of which depict the injuries to each side of Arnold’s face and head.

Id. at 1254. In a unanimous decision, the Court found that the photographs “served the legitimate evidentiary purpose of depicting the angles and trajectories of the gunshots about which ... the forensic pathologist who performed the autopsy, testified, and they did not to [sic] inflame the jury.” Id. at 1255. Accordingly, the Court ruled that the probative value of the photographs did outweigh the danger of unfair prejudice; thus, the trial court did not err by admitting the photographs. Id.

¶ 25. In Baldwin v. State, the State sought to introduce 100 photos of the victim’s body. Baldwin v. State, 784 So.2d 148, 158 (Miss.2001). The trial court noted that the photographs were gruesome, but found that the photos depicted the extent of the victim’s injuries and, thus, possessed evidentiary value. Id. at 157-58. The trial court, however, allowed only five to eight of the 100 photos into evidence. Id. at 157. On appeal, Baldwin challenged the admission of the photographs. The Court found that the photographs “[did] not rise to the level of inflammatory gruesomeness,” showed the location of the body and extent of the victim’s injuries, and clarified the forensic scientist’s testimony. Id. at 158. Accordingly, the Court approved the trial court’s exercise of discretion. Id.

¶ 26. In one case, the Court reversed a murder conviction based on gruesome photographs of the victim’s body, which was nude, partially decomposed, and surrounded by maggots. McNeal v. State, 551 So.2d 151, 159 (Miss.1989). The Court held that alternative photographs could have been used to show the fatal wound. Id. Accordingly, the Court found that the photographs’ probative value was outweighed by the danger of unfair prejudice. Id.

¶ 27. Of the thirty-three admitted photographs in this case, five photographs showed Justin’s body from a distance, three photographs showed his injuries close up, one photograph depicted his autopsy, and three photographs depicted brain matter and skull, which had landed on the floor. The remaining photographs depicted blood splatters and the evidence collected. Thus, given the variety of different subjects depicted by the photographs, the sheer number of photographs is not alarming.

¶ 28. While photographs of Justin’s body are difficult to view, the photographs did not rise to the level of inflammatory gruesomeness exhibited in McNeal and have evidentiary value. Justin’s manner of death was disputed. Zachary proclaimed it was an accident, and the State proclaimed it was a homicide. The photographs aided the jury in determining the circumstances of the killing.

¶ 29. The photographs also were useful to clarify witness testimony. For instance, both Roger and Investigator Singley testified that Justin’s shotgun was sitting between his legs, indicating that the injury may have been self inflicted. Both also testified that, based on the nature of the wound and other evidence, it could not have been a self-inflicted wound. Furthermore, defense counsel harped on the State’s failure to determine the trajectory of the shot. As explained by Investigator Singley and Dr. Barnhart, and clarified and confirmed by photographs, Justin’s skull was in numerous pieces, which made it difficult to reconstruct the skull and determine the path of the bullet.

¶ 30. Additionally, the photographs helped clarify the three statements Zachary made to investigators. In his second statement, Zachary claimed that his rifle accidentally discharged when he stood up from the sofa. In his third statement, Zachary told Investigator Dean that he had threatened to shoot Justin if Justin continued to pester him, and he had loaded a round into the chamber. Although Zachary claims the shooting was accidental, the photographs provided evidence — such as the location of the body and the distance of the sofa from Justin’s chair — for the jury to determine the validity of that claim.

¶ 31. Based on the foregoing, the photographs provided evidentiary value and were more probative than prejudicial. Further, no evidence exists that the photographs were used to inflame the jury. Accordingly, this Court finds that the trial court did not abuse its discretion in allowing the photographs into evidence.

II. JNOV

¶ 32. A motion for JNOV challenges the legal sufficiency of the evidence. Knight v. State, 72 So.3d 1056, 1063 (Miss.2011). When ruling on a motion for a JNOV, the trial court must view all credible evidence consistent with the defendant’s guilt in the light most favorable to the State. Id. This Court will not disturb the trial court’s ruling if “the evidence shows ‘beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed[.]’ ” Id. (quoting Bush v. State, 895 So.2d 836, 843 (Miss.2005)). But “where the evidence fails to meet this test it is insufficient to support a conviction” and reversal is required. Id.

¶ 33. Zachary was convicted of manslaughter as a lesser-included offense of murder. Zachary argues that the evidence was insufficient to prove culpable-negligence manslaughter. According to Zachary, the evidence showed only that Justin’s killing was an accident, and Zachary committed no affirmative act of culpable negligence. He also claims that the State failed to prove the angle of trajectory, leaving the jury to infer an intentional killing based on Zachary’s demeanor and inappropriate comments.

¶ 34. The State argues that it presented sufficient evidence to justify a murder conviction and, indeed, a conviction for manslaughter. The State contends that “[w]here there is evidence to justify a murder conviction, the appellant cannot complain of a manslaughter conviction.” Hubbard v. State, 437 So.2d 430, 438 (Miss.1983). According to the State, a reasonable jury could have concluded Zachary was guilty based on the physical evidence, the conflicting statements Zachary had given to investigators, and Zachary’s demeanor following Justin’s death.

¶ 35. Manslaughter is “[e]very other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law....” Miss. Code Ann. § 97-3^47 (Rev.2006). Zachary claims that the State presented no evidence of culpable negligence. However, a reasonable jury could have found that the State met every element of manslaughter based on the physical evidence and Zachary’s statements to investigators.

¶ 36. Although Zachary later admitted fault in Justin’s killing, he initially claimed that Justin had shot himself. In his second statement, Zachary stated that he had gotten a “conversation piece” — his rifle— to have a talk with Justin, and the rifle had discharged accidentally. He admitted staging the scene and putting his rifle away to make Justin’s death look like an accident. In his third statement, Zachary said that he had threatened to shoot Justin if Justin continued to pester him. He also admitted loading the rifle. Zachary still claimed that the rifle discharged accidentally. Evidence also was presented that Zachary’s rifle had a “hard” trigger, and, when tested by the Mississippi Crime Laboratory, the rifle did not discharge accidentally or appear to be faulty.

¶ 37. Zachary argues that he did not know the rifle was loaded, and he did not deliberately point the rifle at Justin. The evidence, however, tells a different story. In at least one statement, Zachary admits that he loaded the rifle and threatened to shoot Justin. Also, the physical evidence — Justin’s gunshot wound — suggests that the rifle could have been pointed directly at Justin’s head. Zachary complains that the State failed to prove the bullet’s angle of trajectory and, thus, failed to disprove Zachary’s theory that the shooting was an accident. While evidence of the bullet’s angle of trajectory would have supplemented the State’s evidence, Zachary’s provides no caselaw which mandates that such evidence is necessary for a conviction. See Simmons v. State, 805 So.2d 452, 487 (Miss.2001) (stating that “[f]ailure to cite relevant authority obviates the appellate court’s obligation to review such issues.”)

¶ 38. The jury considers the weight and credibility of the evidence. Butler v. State, 102 So.3d 260, 270 (Miss.2012). From the verdict, the jury believed neither Zachary’s claim that the shooting was an accident nor the State’s claim that the shooting was intentional. The jury, instead, convicted Zachary of manslaughter, finding that Justin’s killing was a result of Zachary’s culpable negligence. Viewing all credible evidence consistent with Zachary’s guilt in the light most favorable to the State, ample evidence of culpable negligence existed, and the evidence was legally sufficient to prove beyond a reasonable doubt that Zachary committed the elements of the offense of manslaughter.

CONCLUSION

¶ 39. The trial court did not abuse its discretion in allowing the photographs into evidence. And, the evidence was legally sufficient to support the jury’s verdict. Thus, this Court affirms Zachary’s conviction and sentence for manslaughter.

¶ 40. CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH TEN (10) YEARS TO SERVE AND THE REMAINING TEN (10) YEARS TO BE SERVED UNDER POST-RELEASE PROVISIONS WITH A FIVE (5) YEAR SUPERVISION PERIOD, WITH CONDITIONS, AFFIRMED.

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

      . The .25-06 rifle was Zachary's personal gun.

      . Justin had just received a blow-dart gun as a present.

      . Zachary states that Dr. Barnhart could not use the autopsy photograph to identify Justin because she did not conduct the autopsy. He also states that Investigator Singley, through his testimony, established the nature of the wound. Thus, the photographs were unnecessary and used only to inflame the passions of the jury.

      . In Baldwin, the opinion states that five photographs were admitted and later states that eight photographs were admitted. See Baldwin, 784 So.2d at 157-58.

      . In the distant photographs, Justin’s injuries are barely visible.

      . ‘‘Even where a defendant claims the firing of a gun is accidental, pointing a loaded gun at an individual supports a conviction of manslaughter because the defendant’s actions 'show a conscious, wanton and reckless disregard of the likely fatal consequences of his willful act which created an unreasonable risk.’ ” Tait v. State, 669 So.2d 85, 89 (Miss.1996) (quoting Jernigan v. State, 305 So.2d 353, 354 (Miss.1974)).