author: RANDOLPH, Presiding Justice, KITCHENS, Justice,

text:
    Lester Lavon PARKER, Jr. a/k/a Lester Levon Parker, Jr. a/k/a Lester Parker, Jr. a/k/a Lester Lavon Parker v. STATE of Mississippi.
    No. 2011-KA-01158-SCT.
    Supreme Court of Mississippi.
    June 6, 2013.
    Rehearing Denied Sept. 5, 2013.

      Office of State Public Defender by Mollie Marie McMillin, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
   RANDOLPH, Presiding Justice,

for the Court:

¶ 1. Fifteen-year-old Lester Lavon Parker Jr. was convicted in the Circuit Court of Copiah County, Mississippi, for the murder of his fifty-three-year-old grandfather, James Shelton. He was sentenced to serve the remainder of his “natural life” in the custody of the Mississippi Department of Corrections (MDOC). On appeal, Parker challenges his conviction and sentence.

FACTS

¶ 2. In January 2002, James and Doris Shelton, Parker’s grandparents, became his guardians. Carl Roberts, a family friend of the Sheltons, testified that they had a “[g]ood” relationship with Parker, provided him with a “Christian home[,]” and that Parker “was very fortunate to have as many people as he had in his life.” On October 23, 2010, Doris was killed in a tragic car accident, following which, James was awarded custody of Parker.

¶ 3. On January 23, 2011, at approximately 2:00 p.m., Parker went to Roberts’s home to pick up two of Roberts’s sons, who were to go hunting on James’s property along with Parker and James. Roberts testified that when Parker arrived, he “seemed to be the [person] we’ve always known.” At around 6:30 p.m., Parker dropped off Roberts’s sons at their home and returned to his grandfather’s home. According to Roberts, “about 30 minutes later, [Parker] come back ... upset, and Taylor, my son, come got me.... [W]hen he returned, [Parker] said somebody shot my Paw Paw.... [Parker] stayed and at that time I headed toward [James’s] home.” While en route, Roberts called 911. With the 911 dispatcher on the line, Roberts entered the home, “and it was known that [James] was passed away, and ... I exited the house and waited on the officer.” According to Roberts, his “first impression” was that James had committed suicide.

¶ 4. At 7:40 p.m., Deputy Jeremy Thornton of the Copiah County Sheriffs Department arrived at the Shelton home. After Deputy Thornton observed the “gunshot wound to [James’s] head[,]” he requested an investigator from the sheriffs department. Thereafter, Investigator Chad Sills went to the Robertses’ home to talk with Parker, whom he viewed only as a witness, not a suspect. According to Investigator Sills, Parker “told me that it was an accident, he had shot [James] at the house is what [Parker] said.” Investigator Sills then brought Parker to the sheriffs department for a formal statement. According to Investigator Sills, Parker gave four different versions regarding the incident. Investigator Sills testified that:

[t]he first version was he stated that he went to drop the [Roberts] boys off at their house, come back to ... [James’s] house, went into his room and got his shotgun, went into the bedroom and got another shotgun, pointed one shotgun to his head ... and pointed one at [James] and pulled the triggers. There was only one gun that had a shotgun shell in it he said, but he pulled both triggers and the one that had the shotgun shell was in the gun that was pointed at [James].

According to Investigator Sills, the second version:

is he said he thought the gun was on safe. He went to his room and got the gun and pointed it at [James] and thought it was on safe, pulled the trigger and it wasn’t on safe and it went off and shot [James] in the back of the head.

Regarding the third version, Investigator Sills testified that:

[Parker] was upset at [James] and at his father because he ... was having to live there and he didn’t want to live there anymore,[] so he went and got the shotgun and was just going to point it at him just to prove a point. He wasn’t meaning to pull the trigger or shoot at [James], he just wanted to point the gun at [James].

According to Investigator Sills, in the fourth version, Parker stated that:

his father was going to take his truck, his phone and send him to Chamberlain Hunt[] if he decided to not live at [James’s] residence anymore.... [A]nd he said he could not live there anymore, so he shot [James]. He thought that was the only way he was going to ... be able to move away from there.

¶ 5. On March 15, 2011, Parker was indicted for “wilfully, unlawfully, feloniously, of his malice aforethought and without the authority of law, killing] and murder[ing] [James], ... contrary to and in violation of [Mississippi Code] Section 97-3-19.... ” On July 20, 2011, the jury trial commenced. During the State’s case-in-chief, photographs of the victim were admitted over Parker’s objection. See ¶ 10 infra (discussing the photographs, objections, rulings, etc.). Following the State’s casein-chief, Parker moved for a directed verdict, which was denied by the circuit court. Parker, then sixteen years old, testified on his own behalf. According to Parker, when he informed James and his father that he wished to live with his mother, they “decided that if I moved, that he would send me to Chamberlain Hunt and take all my stuff away.” According to Parker, this “[pjissed me off.” Parker testified that, upon leaving the Robertses’ home, he already had made up his mind to return home and shoot James. According to Parker, he shot James when “I saw the corner of his eye look at me.” The jury found Parker guilty of murder, and the circuit court sentenced him to “natural life” in the custody of the MDOC.

¶ 6. Following the circuit court’s denial of Parker’s “Motion to Set Aside Sentences and Motion for Judgment of Acquittal Notwithstanding the Verdict of the Jury” and “Motion for a New Trial,” Parker filed a notice of appeal.

ISSUES

¶ 7. This Court will consider:

(1) Whether the circuit court abused its discretion by allowing the introduction of photographs of the victim.
(2) Whether Parker’s murder conviction was against the overwhelming weight of the evidence.
(3) Whether Parker’s sentence of life imprisonment violates the Eighth Amendment’s ban on cruel and unusual punishment in light of the recent United States Supreme Court holding in Miller v. Alabama.

ANALYSIS

I. Whether the circuit court abused its discretion by allowing the introduction of photographs of the victim.

¶ 8. This Court has stated that:

[ajdmission of photographs by the trial court is reviewed for abuse of discretion. Dampier v. State, 973 So.2d 221, 230 (Miss.2008). A decision favoring admissibility will not be disturbed absent a clear abuse of that judicial discretion. Id. The discretion of the trial judge is “almost unlimited ... regardless of the gruesomeness, repetitiveness, and the extenuation of probative value.”[] Id. (quoting Williams v. State, 544 So.2d 782, 785 (Miss.1987)).

Chamberlin v. State, 989 So.2d 320, 340 (Miss.2008).

¶ 9. “[PJhotographs which are gruesome or inflammatory and lack an evi-dentiary purpose are always inadmissible as evidence.” McFee v. State, 511 So.2d 130, 134-35 (Miss.1987) (citations omitted). But “[s]o long as a photograph has probative value and its introduction serves a meaningful evidentiary purpose, it may still be admissible despite being gruesome, grisly, unpleasant, or even inflammatory.” Chamberlin, 989 So.2d at 340 (quoting Dampier, 973 So.2d at 230). Regarding probative value, “[o]nly some ... is needed to support a judge’s admission of a gruesome photograph.” King, 83 So.3d at 378 (citing Chamberlin, 989 So.2d at 340) (emphasis in original). As to “meaningful evi-dentiary purpose,” that requirement is satisfied when the photograph “(1) aids in describing the circumstances of the killing; (2) describes the location of the body or cause of death; or (3) supplements or clarifies witness testimony.” Chamberlin, 989 So.2d at 340 (citing Dampier, 973 So.2d at 230). See also King, 83 So.3d at 378; Barfield v. State, 22 So.3d 1175, 1181 (Miss.2009); Bennett v. State, 933 So.2d 930, 946 (Miss.2006). In sum, “[t]he question as to each photograph is whether it: (1) had probative value and (2) aided in describ[ing] the circumstances of the killing, described the location of the body and cause of death, or supplemented or clarified witness testimony.” Chamberlin, 989 So.2d at 341.

¶ 10. During the direct examination of Melissa Claire Nethery, a “crime scene analyst” with the Mississippi Bureau of Investigation, the State sought to introduce crime-scene photographs (Exhibits S-9 through S-14). As to Exhibit S-9, which the State referred to as “a picture of the crime seene[,]” counsel for Parker objected that:

[t]hey have a Power Point ... that they’ve described where all of the items are which better displays to the jury where she found these items rather than presenting a picture of the deceased. If the [Sjtate wants to show where the items are collected, they did a better job with the diagram than this photograph .... I think this is unnecessary.

The circuit judge overruled Parker’s objection, concluding that “it’s prejudicial, but I can see the probative value of it[,]” and Exhibit S-9 was admitted into evidence. (Emphasis added.) Regarding Exhibits S-10 through S-14, which the State provided “sho[w] the entrance and exit wound[,]” counsel for Parker objected that the photographs were “cumulative.” The circuit judge concluded that “I find there are issues in the case that those photographs help in explaining.... I’ll overrule your objection.” Exhibits S-10 through S-14 were then admitted into evidence.

¶ 11. Parker argues that “[t]he only issue for the jury to determine was Parker’s state of mind at the time of the shooting, specifically, whether he acted in the heat of passion. The photographs presented to the jury acted to inflame the passions of the jury and were unnecessary.” The State responds that the circuit court “did not abuse its considerable discretion” in admitting the subject photographs, as they “have evidentiary value since they: (1) aid in describing the circumstances of the killing; (2) describe the location of the body and cause of death; and (3) supplement or clarify witness testimony.” According to the State, multiple witnesses:

stated that their initial reaction to the death of [James] was that he had committed suicide. This required proof that the gunshot wound to the head could not have been self-inflicted. Further, Parker’s story changed numerous times during the aftermath and the investigation of the case.... The State simply could not rely on Parker[’s] testimony, after the State rested its case, to prove its case that Parker shot [James] with malice aforethought and not in self-defense or by mistake. While Parker did admit that he killed [James] and that he had the intent of doing so before he left the [Robertses’] house the last time, the State was required to prove that Parker murdered [James] with malice aforethought in its own case-in-chief.

The State further adds that “the evidence ... was so strong that Parker’s conviction of murder was inevitable and the admission of these ... photographs did not prejudice Parker unduly.”

¶ 12. Exhibit S-9 provided a general picture of the crime scene which both “described the location of the body” and “supplemented or clarified” the testimony of Nethery. Chamberlin, 989 So.2d at 341. See also McFee, 511 So.2d at 135 (“this Court has consistently allowed photographic evidence to support the testimony of witnesses ... who described the scene upon their respective arrivals.”). This constitutes “some” form of probative value, such that the circuit judge did not abuse his discretion in admitting this photograph. King, 83 So.3d at 378. Exhibits S-10 through S-14 were specific photographs of the gunshot wound suffered by James, with Exhibits S-12 through S-14 being particularly graphic. Yet these photographs undeniably “described the location of the body” and “supplemented or clarified” Nethery’s testimony. Chamberlin, 989 So.2d at 341. See also King, 83 So.3d at 378 (“These photographs were used to supplement the officers’ testimony and the testimony of Stanton. We find that Exhibit 3e served an evidentiary purpose and was properly admitted by the trial court.”). This satisfies the requirement of “some” probative value, such that the circuit judge did not abuse his “almost unlimited” discretion in admitting these photographs. King, 83 So.3d at 378; Chamberlin, 989 So.2d at 340. Because this Court cannot conclude that the circuit court abused its discretion in allowing these photographs to be admitted into evidence, this issue is without merit.

II. Whether Parker’s murder conviction was against the overwhelming weight of the evidence.

¶ 13. This Court has stated that it:

reviews a trial court’s denial of a motion for a new trial under an abuse-of-discretion standard.... “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (Miss.2005). Further, when there is a motion for a new trial, “the court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id.

King, 83 So.3d at 379. In our review, all evidence is “weighed in the light most favorable to the verdict.” Barfield, 22 So.3d at 1187 (quoting Jones v. State, 904 So.2d 149, 154 (Miss.2005)).

¶ 14. Jury Instruction S-1A provided, in pertinent part, that:

every intentional killing of a human being without authority of law and not in reasonable self-defense, is either [m]ur-der or [mjanslaughter; [mjurder when done with malice aforethought, and/or with a deliberate design to effect the death of the person killed[] and [manslaughter when done without malice aforethought in the heat of passion[] and not in reasonable self-defense. []
[T]he chief distinction between murder and manslaughter is the presence of deliberation and malice in murder and its absence in manslaughter.

¶ 15. Parker contends that, “[d]espite [my] admission that [I] made [my] mind up before going home,” the evidence presented “portrayed a scene of nothing more than a killing in the heat of passion.” According to Parker, his “emotions and passions” regarding the recent deaths of loved ones, coupled with frustration over James’s objection to his moving in with his mother, “built up over time,” and he “acted before [he] thought.” The State responds that:

Parker admitted that he drove back to the house to kill [James]. He admitted that he went back to his bedroom, got a gun and loaded it, went to the living room to shoot [James], and shot and killed [James] when [James] “caught him in the corner of his eye.” Parker then ... returned to the [Robertses’] house.... Parker testified that he shot [James] because this was the only way he could get what he wanted, that is, to go live with his mother.

According to the State, “[a]ny conflicts that arose in the testimony regarding whether Parker acted with malice aforethought or in the heat of passion, were for the jury to resolve.”

¶ 16. There is a serious question whether the alleged provocation was “immediate and reasonable” enough to be “legally sufficient” to implicate “heat of passion” manslaughter. Neal v. State, 805 So.2d 520, 525 (Miss.2002); Tait, 669 So.2d at 89 (quoting Buchanan, 567 So.2d at 197). Assuming arguendo the existence of an “immediate and reasonable” provocation, the issues regarding “heat of passion” and “immediacy, i.e., whether a sufficient ‘cooling off period has passed between the provocation and the killing so as to negate that the crime occurred in the heat of passion, are questions of fact [,]” to be resolved by the jury “based upon the specific facts of the case and the conditions or temperament of the defendant.” Nolan v. State, 61 So.3d 887, 894 (Miss.2011); Tait, 669 So.2d at 89 (quoting Buchanan, 567 So.2d at 197); Haley v. State, 123 Miss. 87, 85 So. 129, 131-32 (1920) (emphasis added). Here, the jury heard testimony from Roberts that, on the afternoon of January 23, 2011, Parker acted like “the kid I’ve always known prior to that....” The jury also heard Parker’s own testimony that, upon leaving the Robertses’ home, he already had decided to go home and shoot James. Viewing the evidence “in the light most favorable to the verdict[,]” this Court cannot conclude that Parker’s murder conviction is “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” King, 83 So.3d at 379; Barfield, 22 So.3d at 1187. As this is not an “exceptional cas[e] in which the evidence preponderates heavily against the verdict[,]” this Court concludes that the circuit court did not abuse its discretion in denying Parker’s “Motion for a New Trial.” King, 83 So.3d at 379. Accordingly, this issue is without merit.

III. Whether Parker’s sentence of life imprisonment violates the Eighth Amendment’s ban on cruel and unusual punishment in light of the recent United States Supreme Court holding in Miller v. Alabama.

¶ 17. “The standard of review this Court employs for Constitutional issues is de novo.” Deeds v. State, 27 So.3d 1135, 1141 (Miss.2009) (citing Thoms v. Thoms, 928 So.2d 852, 855) (Miss.2006)).

¶ 18. On June 25, 2012, the United States Supreme Court handed down its decision in Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Miller involved “two 14-year-old offenders” who were “convicted of murder and sentenced to life imprisonment without the possibility of parole.” Id. at 2460 (emphasis added). The Court emphasized that “children are Constitutionally different from adults for purposes of sentencing,” and expressed its concern that mandatory life-without-parole sentences required “each juvenile die in prison even if a judge or jury would have thought that his youth and its attendant characteristics ... made a lesser sentence (for example, life with the possibility of parole) more appropriate.” Miller, 132 S.Ct. at 2460, 2464 (emphasis in original). Relying on its seminal cases involving sentences for juveniles, the Court held “that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders.’ ” Id. at 2469 (emphasis added); see Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (banning capital punishment for all juveniles under age eighteen); see also Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (holding life without parole violates the Eighth Amendment when imposed on juveniles in nonho-micide eases).

¶ 19. Miller does not prohibit sentences of life without parole for juvenile offenders. Rather, it “require[s] [the sentencing authority] to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Miller, 132 S.Ct. at 2469. The Miller Court identified several factors that must be considered by the sentencing authority:

Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him — and from which he cannot usually extricate himself — no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth — for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. See, e.g., Graham, 560 U.S. [48], 130 S.Ct. at 2032 (“[T]he features that distinguish juveniles from adults also put them at a significant disadvantage in criminal proceedings”); J.D.B. v. North Carolina, 564 U.S. -, 131 S.Ct. 2394, 2400-01, 180 L.Ed.2d 310 (2011) (discussing children’s responses to interrogation). And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.

Id. at 2468.

¶ 20. Because Miller was decided after Parker’s conviction, sentence, and notice of appeal, this Court first considers whether Miller applies. Prior to Miller, our trial courts were not required to hold an individualized sentencing hearing for juveniles before imposing a life sentence. Thus, Miller created a new rule with which this State must comport. The Supreme Court has stated, “[w]hen a decision of this Court results in a ‘new rule,’ that rule applies to all criminal cases still pending on direct review.” Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (quoting Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)). As Parker is pending on direct review, Miller applies.

¶ 21. Parker was fifteen at the time of his conviction for murder. He was sentenced under Mississippi Code Section 97-3-21, which states, in pertinent part, “[e]very person who shall be convicted of murder shall be sentenced by the court to imprisonment for life in the State Penitentiary.” Miss.Code Ann. § 97-3-21 (Rev. 2006). His sentencing order reads, in pertinent part, “the defendant is sentenced to serve the rest of his natural life in prison in the custody of the [MDOC].” At first blush, Parker’s sentence might seem distinguishable from Miller because Section 97-3-21 neither mandates, nor makes any provision allowing for, a sentence of “life without the possibility of parole.” Compare supra n. 12. Parker was not sentenced by the trial court to life without the possibility of parole. Our courts have not been empowered by the Legislature to sentence a criminal defendant to life without parole save for the crime of capital murder and for certain habitual offenders.

¶ 22. Despite the fact that murder does not carry a specific sentence of life without parole, our analysis is not over. Parker argues that a plain reading of the parole statute, Mississippi Code Section 47-7-3, renders his life sentence “tantamount to life without parole.” Section 47-7-3(1) provides, in pertinent part, “[e]very prisoner who has been convicted of any offense ... and is confined in the execution of a judgment for such conviction in the Mississippi Department of Corrections ... for the term of his or her natural life ... [and] has served not less than ten (10) years of such life sentence, may be released on parole....” Miss.Code Ann. § 47-7-3(1) (Rev.2011). However, subsection (h) reads, “[n]o person shall be eligible for parole who is convicted except that an offender convicted of only nonviolent crimes ... ‘nonviolent crimes’ means a felony other than homicide....” Miss. Code Ann. § 47-7-3(l)(h) (Rev.2011). Thus, if Section 47 — 7—8 (1) (h) is enforced, as it presently reads, Parker will not be eligible for parole. The legislative mandates, when read together, are tantamount to life without parole and fail to consider Parker’s youth. We are constrained to address the present statutory scheme as it contravenes the dictates of Miller.

¶ 23. Although Parker would not be eligible for parole under Section 47-7-3(l)(h), the State argues that he is not entirely foreclosed from seeking release from prison. Parker was not sentenced to life for capital murder. Thus, he could be eligible, assuming all other requirements are satisfied, to seek “conditional release” at the age of sixty-five. Consequently, he is not mandated to spend the rest of his life in prison. See Miller, 132 S.Ct. at 2469 (“ ‘A state is not required to guarantee eventual freedom,’ but must provide ‘some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.’ ”) (quoting Graham, 560 U.S. 48, 130 S.Ct. at 2030, 176 L.Ed.2d 825) (emphasis added). However, we reject the State’s argument that “conditional release” satisfies the Miller mandate. Conditional release is more akin to clemency, which the Supreme Court has held “[a]s a matter of law” to be different from parole “despite some surface similarities.” Solem v. Helm, 463 U.S. 277, 300, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Additionally, a conditional release would not be determined by the sentencing authority at the time of sentencing based on age and other characteristics, as Miller mandates. See Miller, 132 S.Ct. at 2474-75 (explaining that factors must be considered by the sentencing authority at the time of sentencing).

¶ 24. Mississippi is not the first state to face Miller issues vis-a-vis a state’s parole statute. The Supreme Court of Wyoming recently addressed Miller in Bear Cloud v. Wyoming, 294 P.3d 36, 40 (Wyo.2013). Although Bear Cloud involved a juvenile convicted of capital murder for which life with or without parole were possible sentences, a measure of illumination can be found in the Wyoming Supreme Court’s analysis, as substantial similarities exist between the Wyoming and Mississippi parole statutes. Bear Cloud, a juvenile, pleaded guilty to three separate offenses, one of which was first-degree murder. Because of his ineligibility for the death penalty, Bear Cloud’s two possible sentences were “life imprisonment without parole or life imprisonment according to law.” Id. at 44. Following his plea, Bear Cloud received “life according to law.” Id. at 39. The Wyoming parole statute provided, in pertinent part, “[t]he parole board may grant parole to any person imprisoned in any institution under sentence, except a sentence of life imprisonment without parole or a life sentence ....” Id. at 44. Bear Cloud appealed his sentence, but the Wyoming Supreme Court “held that [his sentence] was constitutional under the Eighth Amendment. ...” Id. at 39. Bear Cloud then sought relief in the United States Supreme Court, which “summarily vacated the judgment ... and remanded the case ... for further consideration in light of Miller ....” Id. On remand, the Wyoming Supreme Court held that, as a result of the parole statute, “life imprisonment according to law becomes practically identical to life imprisonment without parole ” Id. at 45. The Wyoming Supreme Court found that this outcome violated Miller and remanded Bear Cloud’s sentence to the trial court to consider his eligibility for parole notwithstanding the present provisions of their parole statute. Id. at 47. The majority of this Court charts the same course today.

¶ 25. Before instructing our trial courts regarding sentencing of juveniles for murder, we are mindful that “defining crimes and prescribing punishments are exclusively legislative functions as a matter of constitutional law.” Williams v. State, 708 So.2d 1358, 1361 (Miss.1998). “[T]he authority to say what constitutes a crime, and what punishment shall be inflicted is in its entirety a legislative question.... ” Id. But, because our present statutory scheme does not meet the requirements of Miller, this Court is compelled by necessity to put into place a stopgap measure, seeking the minimal amount of instruction and intrusion into legislative prerogative, until such time as the Legislature can convene and ameliorate our temporary but required solution.

¶ 26. As previously mentioned, Parker was convicted and sentenced prior to the Court’s decision in Miller. As such, the trial court committed no error at that time in sentencing Parker to life imprisonment, for under Section 97-3-21, it was the only sentence available. It remains the only sentence available for those who do not qualify for Miller considerations. Parker requests that this Court “remand ... for a sentencing hearing with the opportunity to present mitigating evidence.” We agree and vacate Parker’s sentence and remand for hearing where the trial court, as the sentencing authority, is required to consider the Miller factors before determining sentence.

¶ 27. The State has suggested that, if this Court should determine that Miller applies, then the juvenile “would be subject to the general provisions of the parole statute which permit parole eligibility after serving of ten years.” The dissent advocates the adoption of this suggestion. Respectfully, neither the Attorney General nor this Court should create a ten-year minimum mandatory sentence. Thus, we reject this suggested disposition. We have done so only after extended and careful deliberation, and while maintaining our respect for the Legislature to prescribe punishment as it sees fit, as long as the punishment (including parole eligibility) does not violate the Eighth Amendment. Our Legislature has vested sentencing authority solely with the trial court. The United States Supreme Court has mandated that the sentencing authority consider the Miller factors before sentencing. Today’s opinion recognizes Miller and provides the trial court a stopgap mechanism to annul application of Section 47-7-3(l)(h), should the trial court determine that the juvenile should be eligible for parole after Miller consideration. The majority of the members of this Court agree with the Miller Court that this is a determination for the sentencing authority. To adopt the State’s suggested disposition would be to remove the consideration from the sentencing authority, circumventing the Miller mandate of individualized sentencing for a minor convicted of murder.

¶ 28. After consideration of all circumstances required by Miller, the trial court may sentence Parker, despite his age, to “life imprisonment.” See Miller, 132 S.Ct. at 2469 (“[W]e do not foreclose a sentencer’s ability to make that judgment in homicide cases-”). However, if the trial court should determine, after consideration of all circumstances set forth in Miller, that Parker should be eligible for parole, the court shall enter a sentence of “life imprisonment with eligibility for parole notwithstanding the present provisions of Mississippi Code Section 47-7-3(l)(h).” This allows the trial courts of this State to comport with the requirements established by the United States Supreme Court.

CONCLUSION

¶ 29. We affirm Parker’s conviction but vacate his sentence and remand this case to the Circuit Court of Copiah County for a hearing to determine whether he should be sentenced to “life imprisonment” or “life imprisonment with eligibility for parole notwithstanding the present provisions of Mississippi Code Section 47-7-3(1)00.”

¶ 30. CONVICTION OF MURDER, AFFIRMED. SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, VACATED, AND THIS CASE IS REMANDED TO THE CIRCUIT COURT OF COPIAH COUNTY FOR A RESEN-TENCING HEARING CONSISTENT WITH THIS OPINION.

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

KITCHENS, Justice,

concurring in part and dissenting in part:

¶ 31. I agree with the majority’s holding that, in light of our probation and parole statutes, Parker’s sentence was tantamount to mandatory life without parole. Compare Miss.Code Ann. § 97-3-21 (Rev. 2006) (only sentence for murder is “imprisonment for life”) with Miss.Code Ann. § 47-7-3(l)(h) (Rev.2011) (persons convicted of a violent crime are not eligible for parole). I also agree that, because Parker was fifteen years old when the crime was committed, the mandatory sentence violates the Eighth Amendment’s prohibition of “cruel and unusual punishment.” Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 2460, 183 L.Ed.2d 407 (2012); U.S. Const, amend. VIII. Respectfully, however, I disagree that compliance with Miller requires that this Court judicially modify two statutory provisions so that a juvenile convicted of murder will face the same sentencing options as a juvenile convicted of capital murder. Rather than remanding the case for additional sentencing proceedings with murky guidelines, I would adopt the State’s suggested remedy that we “simply hold that [Section 47 — 7—3(l)(h) ] may not be applied to those who committed murder at a time when they were under the age of eighteen years.” This approach is simple, preserves judicial resources, respects the legislative authority to prescribe the bounds of sentences, and does not encroach on the State Parole Board’s statutory authority over parole matters.

¶ 32. The majority constructs a new sentencing option for murder: “life imprisonment with eligibility for parole notwithstanding the present provisions of Mississippi Code Section 47 — 7—3(l)(h).” Maj. Op. 28-29. Despite the majority’s insistence that this “charts the same course” as the Wyoming Supreme Court in Bear Cloud v. Wyoming, 294 P.3d 36 (Wyo.2013), it does not. Bear Cloud held that the least intrusive approach under Miller was to leave the sentencing statute undisturbed and hold the statutes which barred parole for offenders serving life sentences “unconstitutional as applied to juvenile offenders.” Bear Cloud, 294 P.3d at 48. The reason that Bear Cloud’s case was remanded for resentencing was two-fold: (1) Bear Cloud was convicted of first-degree (capital) murder, for which life without parole is a permissible sentence; and (2) the trial court was required to determine the time period before a juvenile serving life would become parole eligible because Wyoming statutes provided no alternative. Id. at 47-48.

¶ 33. Importantly, Parker’s case is distinguishable on the same grounds that Bear Cloud’s case was remanded for re-sentencing. Unlike Wyoming, the general provisions of Mississippi’s parole statute provide a method for the determining parole eligibility when Section 47 — 7—3(l)(h) cannot constitutionally be applied in light of Miller. Miss.Code Ann. § 47-7-3(1) (Rev.2011) (a prisoner sentenced to life must serve ten years before he or she is eligible for parole). Moreover, Parker’s murder conviction, unlike a conviction for capital murder, carries one possible sentence: life. Because the trial court already has imposed the only statutorily permissible sentence, no purpose would be served by remanding the case for resen-tencing.

¶ 34. The majority’s disposition is inconsistent with this Court’s recent decision in Fernando Martinez Parker v. State, 30 So.3d 1222 (Miss.2010). In that case, we reversed a trial court’s imposition of a sentence of life without parole for murder, finding that such sentence “exceeded the statutory maximum.” Id. at 1228. The State argued that the sentence was legally permissible because Section 47-7-3(l)(h) foreclosed eligibility for parole. Id. In rejecting this argument, we held that “Section 47-7-3 applies only to the internal operating procedures of the Department of Corrections and the prisons and does not affect a judge’s sentencing prerogative under the criminal statutes.” Id.

¶ 35. The Fernando Parker decision is in line with the Wyoming Supreme Court’s upholding of a sentencing statute but finding the state’s parole statutes unconstitutional as applied to juveniles. Bear Cloud, 294 P.3d at 46. Rather than our disturbing “the existing possible statutory sentence” for murder under Mississippi Code Section 97-3-21, finding the parole statute unconstitutional as applied to Parker “minimizes our intrusion into any legislative function,” while preserving distinct sentences for murder and capital murder. Id.

¶ 36. The majority goes to great lengths to avoid the word unconstitutional, struggling to persuade the reader that its analysis is more restrained. Yet, calling it a “stopgap mechanism to annul application of Section 47 — 7—3(l)(h)” does not change the nature of the majority’s holding. If Mississippi’s statutory scheme “contravenes the dictates of Miller,” as the majority finds, then our statutory scheme is necessarily unconstitutional, for there can no other reason for this Court to tamper with legislative enactments. It would be less than judicious for an appellate court to announce a holding based on a presumption that legislative action is forthcoming. Maj. Op. 25 (“[Tjhis Court is compelled by necessity to put into place a stopgap measure ... until such time as the Legislature can convene and ameliorate our temporary but required solution.”).

¶ 37. As a final matter, the majority opinion addresses the retroactive application of Miller, but that clearly is not an issue in the present case. Maj. Op. 20. This short paragraph would establish precedent for several post-conviction cases now pending before this Court where retroac-tivity is a genuine issue.

¶ 38. I would affirm Parker’s conviction but hold that, under Miller, the Eighth Amendment to the United States Constitution prohibits the application of Section 47-7-3(l)(h) to juveniles convicted of murder. Because the trial court already has imposed the only statutorily permissible sentence, there is no reason to disturb the sentence or remand for resentencing; thus, I respectfully concur in part and dissent in part.

DICKINSON, P.J., CHANDLER AND KING, JJ., JOIN THIS OPINION.

      . According to Roberts, Parker "grew up in my house[,]” as his children were friends with Parker.

      . Regarding Doris’s death, Roberts testified that "sure, [Parker] was saddened by that ..., but ... [t]he kid I seen that day in my house was the kid I’ve always known prior to that afternoon.”

      . According to Investigator Sills, Parker “said that he had a problem living there because ... [Doris] had passed away and [it] brought up memories.”

      . Chamberlain-Hunt Academy is a "Christian Military Boarding School" located in Port Gibson, Mississippi. See Chamberlain-Hunt Academy, www.chamberlain-hunt.com/ (last visited May 16, 2013).

      .According to Parker, his contact with his father was infrequent.

      . Similarly, Investigator Sills testified that, “I asked him, 'Did you leave the Robertses' residence to go back to your grandfather's house and kill your grandfather?' And he said yes.”

      . As this Court recently stated, it "has found photographs ‘to be so gruesome and inflammatory as to be prejudicial in only one circumstance, a close-up photograph of a partly decomposed, maggot-infested skull.' ” King v. State, 83 So.3d 376, 379 (Miss.2012) (quoting Holly v. State, 671 So.2d 32, 41 (Miss.1996)). But see Welch v. State, 566 So.2d 680, 685 (Miss.1990) (autopsy photographs of dissected victim were unpleasant and were used in a way that was overly prejudicial).

      . Nethery stated that Exhibit S-10 "is a view as you first enter into the residence[;]" Exhibit S-l 1 "depicts a view of the victim and a partial view of the foyer area[;]” Exhibit S-l2 "is a close-up view of the victim’s wound to his head[;]” Exhibit S-l 3 "is another view of the back of the victim’s head, just at a different angle[;]” and Exhibit S-14 "is a side-view of the right side of the victim, and it depicts him as he was when I arrived at the scene.”

      . Section 97 — 3—19(1 )(a) provides, in pertinent part, that "[tjhe killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases: (a) When done with deliberate design to effect the death of the person killed, or of any human being...." Miss.Code Ann. § 97 — 3—19(l)(a) (Rev.2006).

      . Jury Instruction D-7 provided that " ‘heat of passion' can be violent and uncontrolled rage caused by provocations by the victim toward the Defendant, and passion and anger suddenly aroused at the time by some immediate and reasonable provocation either by words or acts.” See Tait v. State, 669 So.2d 85, 89 (Miss.1996) (quoting Buchanan v. State, 567 So.2d 194, 197 (Miss.1990)) (defining "heat of passion” as "a state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.”).

      . Mississippi Code Section 97-3-35 defines manslaughter as "[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense....” Miss.Code Ann. § 97-3-35 (Rev.2006).

      . The two juvenile offenders (Miller and Jackson) were convicted of capital murder for separate crimes in different states. Miller was convicted in Alabama, while Jackson was convicted in Arkansas. Both Alabama and Arkansas statutorily mandated the minimum sentence of life without parole for capital murder. See Ark.Code Ann. § 5 — 4—104(b) (Rev. 2006); see also Ala.Code §§ 13A-5-40(9), 13A-6-2(c) (Rev.2006).

      . See Miss.Code Ann. §§ 99-19-81, 83 (Rev. 2007).

      . Parker submits that, in light of Miller, "Section 47-7-3(l)(h) is unconstitutional as applied to juveniles.” This Court has stated that it "will strike down a statute on constitutional grounds only where it appears beyond all reasonable doubt that such statute violates the Constitution.” State v. Jones, 726 So.2d 572, 573 (Miss.1998) (quoting Wells v. Panola County Bd. of Educ., 645 So.2d 883, 888 (Miss.1994). Contrary to Parker's argument, Section 47 — 7—3(l)(h) can constitutionally be applied to juveniles provided that the sentencing authority considers the Miller factors in sentencing. Miller does not require this Court declare Section 47 — 7—3(l)(h) per se unconstitutional as applied to juveniles.

      . Mississippi Code Section 47-5-139 provides for conditional release based on earned time allowance, and states, in pertinent part,
      [a]n inmate shall not be eligible for the earned time allowance if: (a) [t]he inmate was sentenced to life imprisonment; but an inmate, except an inmate sentenced to life imprisonment for capital murder, who has reached the age of sixty-five (65) or older and who has served at least fifteen (15) years may petition the sentencing court for conditional release.
      Miss.Code Ann. § 47-5-139(l)(a) (Rev.2011).

      .The Wyoming Supreme Court faced the same dilemma and eloquently established guidance to its trial courts until the Wyoming Legislature could act to modify the State’s sentencing and parole scheme to comply with Miller. The Wyoming Supreme Court stated, ''[w]e recognize that the authority to determine possible penalties for criminal offenses is vested in the Wyoming Legislature. We also readily acknowledge that it is ‘axiomatic under our system of government that courts may not legislate.' Midwest Hotel Co. v. State Bd. of Equalization, 39 Wyo. 461, 273 P. 696, 697 (1929). While we acknowledge our role in interpreting rather than rewriting the law, we must provide guidance to the district courts that will face sentencing issues on remand in this case and in other pending cases, at least until the Legislature amends the sentencing scheme for juveniles in Wyoming to accord with Miller and other Eighth Amendment jurisprudence.” Bear Cloud, 294 P.3d at 45.

      . See Miss.Code Ann. § 97-3-21 (Rev.2006) ("Every person who shall be convicted of murder shall be sentenced by the court to imprisonment for life neither this Court nor the Parole Board is vested with sentencing authority.

      . See supra ¶ 19 for a discussion of applicable factors to be considered.

      . A review of proscribed punishments for various other serious crimes reveals a wide range of sentencing discretion made available to the sentencing authority. See Miss.Code Ann. § 97-3-53 (Rev.2006); Miss.Code Ann. § 97-3-65 (Rev.2006); Miss.Code Ann. § 97-3-71 (Rev.2006); Miss.Code Ann. § 97-3-79 (Rev.2006); Miss.Code Ann. § 97-3-101 (Rev. 2006); Miss.Code Ann. § 97-37-23 (Rev. 2006). We choose not to intrude or speculate as to what the Legislature might select as; (1) an appropriate punishment for a minor who is found by the sentencing authority to deserve parole after Miller consideration; or (2) rules for parole eligibility.

      . "Miller requires ... the sentenc[er][to] consider the individual, the factors of youth, and the nature of the homicide in determining whether to order a sentence that includes the possibility of parole.” Bear Cloud, 294 P.3d at 47.

      .This result is not inconsistent with Fernando Martinez Parker v. State, 30 So.3d 1222 (Miss.2010). In that case, upon conviction of murder, the trial court sentenced Fernando Parker to "life without parole.” Id. at 1228. We reversed and held that the sentence exceeded the statutory maximum, regardless of what the parole statute provided. Id. at 1228. However, today’s decision only grants the trial court the authority to sentence a juvenile to "life imprisonment” — the maximum sentence allowed by statute. Thus, today’s decision in no way conflicts with Fernando Parker.

      . Parole eligibility is an entirely different animal than a "minimum mandatory sentence." Maj. Op. 27.

      . Nothing in this opinion suggests that we should "strike down” Section 47 — 7—3(l)(h) as “per se unconstitutional.” Maj. Op. n. 14.

      . In fact, the legislature has convened since the Miller decision, and, effective July 1, 2013, there will be three types of murder in Mississippi: first-degree murder, second-degree murder, and capital murder. Act effective July 1, 2013, Miss. Laws WL No. 269 (S.B.2377). Under these revisions, Parker’s crime would be designated as "first-degree murder.” The sentence for "first-degree murder” remains the same as the sentence for murder, but the place where the sentence is served is no longer limited to the State Penitentiary. Id. Notably, the parole statute was not amended, but there was an attempt to modify the subsection related to capital murder. H.B. 849, Miss. Leg.2013 Reg. Session. The bill appeared to recognize the Miller holding, and would have clarified that juveniles convicted of capital murder could be eligible for parole. Id. The bill passed the House of Representatives, but died in committee in the Senate.

      . If, on remand, the trial court imposes "life imprisonment with eligibility for parole notwithstanding the present provisions of Mississippi Code Section 47-7-3(l)(h).” then "the trial court must also pronounce a specific period of time which must pass before the juvenile becomes parole eligible.” Bear Cloud, 294 P.3d at 48.


source: Caselaw Access Project

author: DICKINSON, Presiding Justice, KITCHENS, Justice,

license: Public Domain

text:
    MOBILITY MEDICAL, INC., and Mobility Medical of North Mississippi, LLC v. MISSISSIPPI DEPARTMENT OF REVENUE.
    No. 2011-CA-01780-SCT.
    Supreme Court of Mississippi.
    June 6, 2013.
    Brandon C. Dixon, Harris H. Barnes, III, Flowood, attorneys for appellant.
    James L. Powell, Jackson, Kenitta Franklin Toole, attorneys for appellee.
   DICKINSON, Presiding Justice,

for the Court:

¶ 1. Mississippi law requires Mobility Medical, Inc., and Mobility Medical of North Mississippi, LLC, (together referred to herein as “Mobility”) to pay a tax on their gross medical equipment sales proceeds, including sales to customers who are covered by the Federal Employees Health Benefits Plan (FEHBP). Federal law prohibits states from levying direct or indirect taxes on insurance carriers who participate in the FEHBP. The question before us today is whether this federal law prohibits the State of Mississippi from requiring Mobility to pay sales taxes on equipment it sells to individuals who are covered by the FEHBP. We hold that the tax on Mobility’s gross sales, is not a tax on FEHBP or any other health-benefits insurance plan. Accordingly, the federal law that prohibits the State from taxing FEHBP or its participating insurance carriers does not preempt the Mississippi law that requires Mobility to pay the tax on its gross sales, including those to individuals covered by FEHBP.

FACTS AND PROCEDURAL HISTORY

¶ 2. Mobility is a retail seller of medical equipment. In 2008, the Mississippi Department of Revenue reclassified certain sales of medical equipment paid for by third-party payors on behalf of government agencies as taxable transactions, subjecting Mobility to the 7% state sales tax on the gross proceeds of these retail sales from June 2004 through June 2007.

¶ 3. The third-party payors are participants in the FEHBP, which provides federal employees, retirees, and their families subsidized healthcare benefits. Under the FEHBP, the United States Office of Personnel Management contracts with insurance carriers — the third-party payors — to create healthcare plans for enrollees.

¶ 4. The Federal Employees Health Benefits Act (FEHBA) — the federal statute creating the FEHBP — requires enroll-ees and the federal government to make matching contributions which are deposited into the Employees Health Benefits Fund (the fund). The fund is used to reimburse insurance carriers which initially pay enrollees’ claims. The FEHBA prohibits states from assessing taxes “directly or indirectly, on a carrier or an underwriting or plan administration subcontractor of an approved health benefits plan ... with respect to any payment made from the Fund.”

¶ 5. Mobility challenged the tax, claiming the statute that created it was preempted by federal law. The Mississippi State Tax Commission affirmed the assessments. Mobility paid the assessments under protest and sued for a refund in Hinds County Chancery Court. The chancery court affirmed the Commission and granted summary judgment in favor of the Department of Revenue because it excluded sales paid for by Medicare and Medicaid from the sales tax, and, thus, Mobility’s argument that the tax was preempted by federal law was moot.

¶ 6. Mobility appealed to this Court, arguing that the chancellor erred by failing to address whether the FEHBA preempts the state sales tax.

ANALYSIS

¶ 7. The sole question presented is whether the federal statute prohibiting any direct or indirect state tax “on a carrier or an underwriting or plan administration subcontractor of an approved health benefits plan” preempts the tax on Mobility’s sales proceeds. Because the tax does not directly or indirectly tax “a carrier or an underwriting or plan administration subcontractor ... with respect to any payment made from the Fund,” the FEHBA does not preempt the tax. Accordingly, we affirm the chancery court’s grant of summary judgment in favor of the Department of Revenue.

¶ 8. Mobility recognizes that the tax is not assessed to its customers’ insurance carriers, but argues that the FEHBA precludes any state tax which may cause an increase in costs for the fund. Mobility suggests that if the state charges a sales tax on its proceeds and it charges the tax on its sales of medical equipment, insurance carriers will pass the cost of the tax to the fund. But nothing in the law requires Mobility to pass any costs to its customers, or to the fund, so there is no conflict between state and federal law, and the tax is not preempted.

¶ 9. The FEHBA states in its relevant part:

No tax, fee, or other monetary payment may be imposed, directly or indirectly, on a carrier or an underwriting or plan administration subcontractor of an approved health benefits plan by any State, the District of Columbia, or the Commonwealth of Puerto Rico, or by any political subdivision or other governmental authority thereof, with respect to any payment made from the Fund.

¶ 10. Federal preemption of state law occurs where Congress explicitly preempts state law, Congress has occupied the entire field, or there is an actual conflict between federal and state law. Here, Congress has not explicitly preempted any tax on retailers, nor has it occupied the entire field of taxation. Thus, the law creating the tax would be preempted only if it actually conflicts with the FEHBA.

¶ 11. We find that there is no conflict between the FEHBA and the law that requires Mobility to pay a tax on their sales. Because Mobility is a retailer of medical equipment — not “a carrier or an underwriting or plan administration subcontractor of an approved health benefits plan” — the state does not directly impose the tax on one of the prohibited entities. And because the state does not require that the tax be charged to its customers or their insurance carriers, or that it be reimbursed by the fund, the state does not indirectly tax a prohibited entity with respect to a payment from the fund. Therefore, state and federal law do not conflict and the FEHBA does not preempt the tax.

¶ 12. The State of Mississippi charges Mobility — not its customers — the tax. Mobility does not contest this point, but argues instead that it must — and the dissent fears it might — pass along the cost of its taxes to its customers, creating a trickle-down effect. Both Mobility and the dissent call this an indirect tax.

¶ 13. It is surprising to see the dissent conclude that the federal government has the power to prevent the State of Mississippi from levying a fee or tax on a Mississippi business, simply because that business might pass the tax or fee along to its customer who might seek reimbursement for the tax from an insurance company whose policy might cover it.

¶ 14. The dissent correctly observes that, as a matter of practice, most purveyors of cheeseburgers tack the sales tax onto the price of the cheeseburger. But the dissent is not correct in its understanding that tacking the sales tax onto the price is required, nor is the dissent correct in its understanding that the consumer must pay a tacked-on sales tax that cheeseburger vendors “are required to remit to the state.” Cheeseburger vendors are perfectly free under Mississippi law to set the price of a cheeseburger at $4.00, and then require their customers to pay exactly $4.00. It is the vendor — not the customer — who is required by' Mississippi law to pay the sales tax.

¶ 15. Using the dissent’s logic, Mobility could argue it is exempt from paying inventory tax, unemployment tax, property taxes, sales tax it pays on its own equipment, franchise tax, license fees, and numerous other taxes and fees it must pay under state law, since it must take those taxes and fees into consideration when setting its prices, and must “indirectly” pass them along to their customers.

¶ 16. We decline to hold that federal law prevents the State of Mississippi from requiring Mobility to pay a tax on the gross amount of its sales, simply because part of that tax might be passed along to its customers who are covered by the FEHBA.

¶ 17. It is also worth noting that — at least for now, and with some exceptions under the new federal healthcare law— insurance carriers are free to insure whatever they like. Mobility provides us with no authority that requires insurance companies to cover the sales tax added to the purchase price of equipment. And even if Mobility charges a customer the tax, and the customer’s insurance policy does cover sales tax — such that it reimburses Mobility’s customer for the sales tax — Mobility provides us with no authority that requires, or even allows, the insurance carrier to pass the sales tax cost to the fund.

¶ 18. Other courts have come to a similar conclusion when addressing similar pass-through cost arguments. The United States Court of Appeals for the Fourth Circuit rejected the argument that a tax on healthcare providers can constitute an indirect tax on carriers based on a pass-through principle. Likewise, the United States District Court for the District of Connecticut upheld a sales tax on hospital earnings because there was no evidence that the tax increased insurance reimbursement from the FEHBA fund.

CONCLUSION

¶ 19. FEHBA prohibits state taxation of transactions “with respect to any payment made from the Fund.” There is simply no factual basis on which to assume that Mississippi’s tax on Mobility’s gross proceeds will require a payment of that tax from the FEHBA fund. Therefore, state and federal law do not actually conflict, and the state sales tax is not preempted. The chancery court’s grant of summary judgment in favor of the Mississippi Department of Revenue is affirmed.

¶ 20. AFFIRMED.

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

KITCHENS, Justice,

dissenting:

¶21. The majority holds that, because Mobility is not an insurance carrier, the sales tax imposed upon its proceeds is not preempted by the Federal Employees Health Benefits Act (FEHBA). And, since nothing in the FEHBA specifically requires Mobility to pass costs to the fund, then there is no conflict between the federal law and the state sales tax. In my view, however, it is clear that some of the cost created by Mississippi’s sales tax on medical equipment sold by Mobility inevitably will reach the fund. This is an eventuality that the FEHBA was created to prevent. Therefore, I respectfully dissent.

¶ 22. The FEHBA provides that “[n]o tax, fee, or other monetary payment may be imposed, directly or indirectly, on a carrier or an underwriting or plan administration subcontractor ... with respect to any payment made from the Fund.” 5 U.S.C. § 8909(f)(1) (2006). The Office of Personnel Management (OPM), which manages the fund, has determined that this language should be interpreted broadly. 48 C.F.R. § 1631.205-41 (2011). The prohibition applies to any tax, fee, or monetary payment directly or indirectly imposed on FEHBP premiums. Id. The regulation provides that payments prohibited under the section include “all payments directed by States or municipalities, regardless of how they may be titled, to whom they must be paid, or the purpose for which they are collected....” Id. This language makes it abundantly clear that, although Mobility is not an insurance carrier, an underwriter, or a plan administration subcontractor, the sales tax in question creates an expenditure that will indirectly increase the costs of insurance carriers purchasing equipment from Mobility, and ultimately will increase the amount of reimbursement from the fund. This is in direct conflict with the purposes and provisions of the FEHBA.

¶23. The majority goes further and argues that the tax is imposed on Mobility and not on its customers. Therefore, the majority reasons, Mobility simply can pay the sales tax out of its own pocket. Or, the insurance carrier can pay the sales tax and not ask for reimbursement from the fund. Or, the insured can pay the sales tax. I disagree for several reasons. First, forcing Mobility to remit the sales tax itself would discourage Mobility from selling medical equipment to insureds covered under the FEHBA. It would cost Mobility more money to sell to federal employees than to other customers. This runs counter to the clear intent of the FEHBA, which is to provide economical health care solutions to federal employees. Further, insurance companies will have no incentive to pay a sales tax for which they know they will not be reimbursed. It is likely that the insured will have to foot the bill.

¶24. Additionally, the majority says that Mobility is arguing “that the FEHBA precludes any state tax which may cause an increase in costs for the fund.” Maj. Op. ¶ 8. However, the assessments at issue already have been paid under protest by Mobility. The chancery court did not address whether any of the assessments ultimately were reimbursed from the fund. It is entirely possible that the sales tax on the sale of certain medical equipment has been reimbursed from the fund. But we do not know, because the chancery court did not make that determination. I would remand to the chancery court for a determination of whether any of the challenged assessments have been reimbursed from the fund.

¶ 25. It is true, as the majority notes, that Mobility, the insurance carrier, or the insured can pay the sales tax -without seeking reimbursement from the fund. However, in the narrow range of cases in which sales tax on durable medical equipment is paid for by insurance carriers and actually is reimbursed by the fund, I believe the plain language of Section 8909(f) of the FEHBA and the OPM’s interpretation of the FEHBA clearly provide that collection of the state sales tax has been preempted by federal law. The majority professes that I conclude that preemption is appropriate where the tax might be passed along to the fund. With respect, I conclude no such thing. What I do conclude is that, where the cost of the sales tax on durable medical equipment sold to insureds under the FEHBA actually is borne by the fund, then the sales tax is preempted by the supreme law of the land: federal law. If a particular transaction is one in which the sales tax affects the fund, then Mississippi’s sales tax is preempted. It should be simple enough to determine whether the sales tax in question ultimately will be borne by the fund when a sale is made. If the sales tax does not affect the fund, then Mississippi may collect it with impunity.

¶26. The majority’s analogy that, under this logic, various other state taxes on Mobility are the same kind of indirect taxes as the sales tax in question is simply incorrect. Sales taxes, by definition, always are indirect taxes on the consumer. When a Mississippian purchases a cheeseburger, he or she pays more than the listed price because the consumer must pay the sales tax that the cheeseburger vendor is required to remit to the state. Similarly, when an insurer purchases medical equipment from Mobility, it pays more than the price of the equipment because it is covering Mobility’s sales tax. This is an indirect tax on the insurance carrier, since the carrier, in effect, is charged for the sales tax that Mobility is required to remit to the state for that sale. The other kinds of taxes mentioned by the majority are in no-wise similarly indirect upon the insurance company purchasing the medical equipment. If the additional sales tax payment ultimately is borne by the fund, then it is obvious that the sales tax in that transaction is preempted by federal law. Any such tax that Mobility was assessed which ultimately was borne by the fund should be refunded. This case should be remanded to the chancery court to make that determination. Accordingly, I respectfully dissent.

WALLER, C.J., PIERCE AND KING, JJ., JOIN THIS OPINION.

      . 5 U.S.C. §§ 8901-8913 (2006).

      . 5 U.S.C. § 8909(f)(1) (2006).

      . 5 U.S.C. § 8909(f)(1) (2006).

      . 5 U.S.C. § 8909(f)(1) (2006).

      . 5 U.S.C. § 8909(0(1) (2006).

      . Sanders v. Advanced Neuromodulation Sys., Inc., 44 So.3d 960, 965 (Miss.2010) (citing Harmon v. Regions Bank, 961 So.2d 693, 697-98 (Miss.2007)).

      . 5 U.S.C. § 8909(f)(1) (2006).

      . United States v. West Virginia, 339 F.3d 212, 218 (4th Cir.2003).

      . Connecticut v. United States, 1 F.Supp.2d 147, 153 (D.Conn.1998).

      . 5 U.S.C. § 8909(f)(1) (2006).


author: WALLER, Chief Justice,

text:
    Corey THOMPSON a/k/a Corey T. Thompson a/k/a Corey M. Thompson a/k/a Corey Terrell Thompson v. STATE of Mississippi.
    No. 2012-KA-00899-SCT.
    Supreme Court of Mississippi.
    June 20, 2013.

      Office of State Public Defender by Justin T. Cook, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before WALLER, C.J., LAMAR and PIERCE, JJ.
   WALLER, Chief Justice,

for the Court:

¶ 1. Corey Thompson was convicted on two counts of armed robbery. The Circuit Court of Warren County, Honorable M. James Chaney, Jr., presiding, sentenced Thompson to two concurrent terms of twenty years, with eight years suspended and twelve years to serve. Thompson also was ordered to pay a fine of $5,000 and court costs. Thompson now appeals his conviction. Finding no error, we affirm.

ISSUES

I. Whether the trial court violated Thompson’s right to assert his theory of the case when it failed to give the jury a self-defense instruction.

II. Whether Thompson’s trial counsel proved ineffective by not requesting a circumstantial-evidence jury instruction.

FACTS

¶ 2. On the evening of May 1, 2011, gunshots were exchanged between Corey Thompson and Jermaine Wright at the Confederate Ridge Apartments in Vicksburg. The facts surrounding the altercation were contested at trial. The State’s theory of the case was that Jermaine Wright and Patrick Tucker were victims of an attempted armed robbery by two masked men — Corey Thompson and his accomplice Maurice Morris. Wright fired his own pistol at the men in self-defense until the aggressors retreated. Both Thompson and Morris were shot during the incident. Thompson was treated for his gunshot wounds at River Region Medical Center, while Morris died at the scene of the crime. On the other hand, Thompson claims that, although he was armed, he carried his weapon only for protection and had no intention to rob or harm anyone that evening. Thompson testified that Wright was the actual aggressor, and Thompson returned fire only in self defense. Although Morris was found dead at the scene wearing a mask, Thompson denies that he or Morris was wearing a mask during the incident.

DISCUSSION

I. Whether the trial court violated Thompson’s right to assert his theory of the case when it failed to give the jury a self-defense instruction.

¶ 3. It is well-settled that jury instructions are within the discretion of the trial court, and the standard of review for the denial of jury instructions is abuse of discretion. Newell v. State, 49 So.3d 66, 73 (Miss.2010) (citations omitted).

¶ 4. Thompson claims the trial court denied his right to assert his theory of defense when it refused his proposed self-defense jury instruction. A self-defense instruction is not applicable to a charge of robbery. See Johnson v. State, 29 So.3d 738, 746 (Miss.2009). Therefore, the trial court’s refusal of the self-defense jury instruction in this case was not error.

II. Whether Thompson’s trial counsel proved ineffective by not requesting a circumstantial-evidence jury instruction.

¶ 5. In order to prevail on a claim for ineffective assistance of counsel, Thompson must show: “(1) that his counsel’s performance was deficient, and (2) that this alleged deficiency prejudiced his defense.” Goff v. State, 14 So.3d 625, 655 (Miss.2009) (citations omitted). Thompson is “faced with a rebuttable presumption that trial counsel is competent and his performance was not deficient. Id. “Additionally, [Thompson] must show that there is a reasonable probability that, but for the errors of his counsel, the judgment would have been different.” Id. This Court makes its determination of whether the trial counsel’s performance was ineffective based on the totality of the circumstances. Id.

¶ 6. Thompson asserts that no direct evidence exists to link him to the crime and that the State’s theory is based solely on circumstantial evidence. Therefore, he argues that he was entitled to a circumstantial-evidence jury instruction and his counsel was ineffective for failing to request one from the court. In Kirkwood v. State, 52 So.3d 1184, 1187 (Miss.2011), this Court explained that direct evidence includes “an admission or confession by the defendant to ‘a significant element of the offense,’ or eyewitness testimony ‘to the gravamen of the offense charged.’ ” The Court also found in Kirkwood that, because there was no direct evidence of a crime, the defendant was entitled to a circumstantial-evidence instruction. Id.

¶ 7. Thompson argues that the testimony of Wright and Tucker suggests only that a crime was committed-not that Thompson was the one who committed it. However, Thompson admitted at trial that he was involved in the shootout and that he was shot during the incident. Therefore, Thompson corroborated part of Wright’s and Tucker’s stories and admitted to one element of armed robbery (displaying a deadly weapon). In this case, both direct and circumstantial evidence linked Thompson to the crime; therefore, he was not entitled to a circumstantial-jury instruction, and his counsel was not deficient for failing to request one. This assignment of error is without merit.

CONCLUSION

¶ 8. Self-defense is not a defense to a charge of armed robbery; therefore, the trial court did not err in refusing Thompson’s proposed self-defense jury instruction. Furthermore, because direct evidence was presented linking Thompson to the crime, he was not entitled to a circumstantial-evidence jury instruction, and his counsel was not ineffective for failing to request such an instruction. We therefore affirm the trial court’s denial of the proposed self-defense jury instruction and find that Thompson’s counsel was not ineffective for failing to request a circumstantial-evidence jury instruction.

¶ 9. COUNT I: CONVICTION OF ATTEMPTED ARMED ROBBERY AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH EIGHT (8) YEARS SUSPENDED, TWELVE (12) YEARS TO SERVE, AND FIVE (5) YEARS POST RELEASE SUPERVISION, AFFIRMED. COUNT II: CONVICTION OF ATTEMPTED ARMED ROBBERY AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH EIGHT (8) YEARS SUSPENDED, TWELVE (12) YEARS TO SERVE, AND FIVE (5) YEARS POST RELEASE SUPERVISION, AFFIRMED. COUNTS I AND II ARE TO RUN CONCURRENTLY TO ONE ANOTHER. APPELLANT SHALL ALSO PAY A $5,000.00 FINE WITH $2,500.00 SUSPENDED, $156.00 COURT COSTS AND $166.50 STATE ASSESSMENTS.

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

      . Thompson asked the trial court to instruct the jury that:
      It is not incumbent upon an accused to prove that he acted in necessary self-defense, but to the contrary the burden is upon the State to prove beyond a reasonable doubt that at the time of the incident complained of in the indictment he did not act in necessary self-defense, and if there is a reasonable doubt there as to it is your duty to return a verdict of not guilty.


author: KING, Justice,

text:
    MISSISSIPPI DEPARTMENT OF HUMAN SERVICES v. S.C., As Court-Appointed Guardian of U.C., A Minor. Alliance Crossings, LLC f/k/a PSI Crossing, LLC d/b/a The Crossings and Psychiatric Solutions, Inc. v. S.C., As Court-Appointed Guardian of U.C., A Minor.
    Nos. 2012-IA-01130-SCT, 2012-IA-01131-SCT.
    Supreme Court of Mississippi.
    Aug. 8, 2013.

      Charles Stephen Stack, Jr., Dennis Jason Childress, John David Price, Jackson, attorneys for appellant.
    William W. Fulgham, Jackson, Rabun Jones, John Gordon Sims, III, Matthew Anderson Taylor, Bennie Le Nard Richard, Greenville, attorneys for appellee.
    Before WALLER, C.J., CHANDLER and KING, JJ.
   KING, Justice,

for the Court:

¶ 1. The plaintiff in this case filed suit in Hinds County against the Mississippi Department of Human Services and Alliance Crossings, a children’s psychiatric facility, based upon the alleged statutory rape of a minor that occurred while the minor resided at Alliance Crossings in Lauderdale County and was in the legal and physical custody of the Department of Human Services. The alleged basis for venue in Hinds County was that the Department of Human Services is headquartered in Hinds County. The defendants filed motions to transfer venue to Lauderdale County, which the trial court denied. Because the plaintiff failed to allege sufficient facts supporting venue in Hinds County, this Court reverses the trial court and remands the case for transfer to Lauderdale County.

FACTS AND PROCEDURAL HISTORY

¶ 2. In February of 2007, S.C. discovered her then-twelve-year-old son, U.C., fondling his younger brother. She reported the incident to the Washington County Sheriffs Office, which notified the Mississippi Department of Human Services (MDHS). The resulting Washington County Youth Court Proceedings ended with S.C. voluntarily placing legal and physical custody of U.C. with MDHS. Under MDHS’s custody, U.C. was initially evaluated at Parkwood Behavioral Health Systems in Olive Branch, Mississippi (in Desoto County). Professionals at that facility recommended that U.C. be placed in long-term, inpatient residential treatment. Pursuant to this recommendation, MDHS placed U.C. in Alliance Crossings, a residential child psychiatric facility located in Lauderdale County. In June of 2007, while U.C. was in the care of (and located at) Alliance Crossings and under MDHS’s custody, U.C. was allegedly the victim of a statutory rape committed by another patient. Subsequent to the alleged rape, S.C. alleges that the acts and omissions of Alliance and MDHS allowed U.C. to engage in additional sexual acts with other patients. S.C.’s essential allegations against MDHS are that it failed to investigate and report the instances of sexual conduct. S.C. alleges several medical negligence claims against Alliance.

¶ 3. S.C. filed suit in Hinds County Circuit Court against MDHS, Alliance, and Alliance’s parent company, Psychiatric Solutions, Inc. (PSI), on November 4, 2010. She filed an Amended Complaint on February 16, 2011. In both, she alleged simply that “[v]enue is proper in the Circuit Court of Hinds County, Mississippi as the Defendant Mississippi Department of Health [sic] Services is headquartered in Hinds County, Mississippi.” She also alleges that the acts underlying the alleged liability, to wit, the sexual acts and Alliance’s attendant failures, occurred at Alliance in Lauderdale County. She makes no specific allegations regarding the location where MDHS made the decisions regarding its failure to report or investigate.

¶ 4. On March 17, 2011, Alliance moved to transfer venue to Lauderdale County. MDHS followed suit on March 25, 2011, alleging that venue is proper only in Laud-erdale County. The circuit court held a hearing on the issue on May 9, 2011. On June 22, 2012, the circuit court summarily denied the motions to transfer venue, stating simply that they are “not well taken.”

¶ 5. MDHS and Alliance appeal to this Court. They argue that venue is improper in Hinds County and proper in Lauderdale County under the Mississippi Tort Claims Act (MTCA) venue provision, because the acts underlying the liability occurred in Lauderdale County, thus venue for MDHS is proper only in Lauderdale County. Alliance alternatively argues that, if venue for MDHS is proper in Hinds County, the case against it should be severed from the case against MDHS and transferred to Lauderdale County.

ANALYSIS

¶ 6. Decisions on motions to transfer venue and to sever are reviewed for abuse of discretion. Estate of Jones v. Quinn, 716 So.2d 624, 626 (Miss.1998). Questions of law, such as interpretation of the Mississippi Tort Claims Act, are reviewed de novo. S. Cent. Reg’l Med. Ctr. v. Guffy, 930 So.2d 1252, 1255 (Miss.2006); U.S. Fid. & Guar. Co. v. Moss, 873 So.2d 76, 77 (Miss.2004).

¶ 7. The MTCA provides that venue “against the state or its employees shall be in the county in which the act, omission or event on which the liability phase of the action is based, occurred or took place.” Miss.Code Ann. § 11-46-13(2) (Rev.2012). Venue for “all other suits” is proper “in the county or judicial district thereof in which the principal offices of the governing body of the political subdivision are located.” Id. Furthermore, “[t]he venue specified in this subsection shall control in all actions filed against governmental entities, notwithstanding that other defendants which are not governmental entities may be joined in the suit, and notwithstanding the provisions of any other venue statute that otherwise would apply.” Id. “State” includes departments and agencies of the State of Mississippi, and thus includes the Department of Human Services. Miss. Code Ann. § 11 — 46—l(j) (Rev.2012). Therefore, the venue for any suit against MDHS is in the county in which the negligence occurred, and this venue is controlling over all other venue statutes and defendants in the suit. Estate of Jones, 716 So.2d at 628.

¶ 8. “In venue disputes courts begin with the well-pleaded allegations of the complaint. These, of course, may be supplemented-and contested-by affidavits or other evidence in cognizable form.” Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1155 (Miss.1992). The plaintiff is allowed to select among the permissible venues, “and his choice must be sustained unless in the end there is no credible evidence supporting the factual basis for the claim of venue.” Id. Furthermore, “[i]n suits involving multiple defendants, where venue is good as to one defendant, it is good as to all defendants.” Estate of Jones, 716 So.2d at 627.

¶ 9. MDHS and Alliance argue that venue can only be proper in Lauderdale County, because it is where the “central event” underlying liability, the alleged statutory rape, occurred. S.C. argues that the events underlying MDHS’s liability were its decisions not to investigate and report the alleged statutory rape. These, she argues in her briefs, emanated from DHS headquarters in Hinds County, not in Lauderdale County. MDHS and Alliance argue that the location of MDHS’s decisions cannot be a basis for venue, because only the “central” or “underlying” event may provide a basis for venue.

¶ 10. In interpreting other venue statutes, this Court has held that the location of decision-making may provide a basis for venue. See, e.g., Med. Assurance Co. of Miss. v. Myers, 956 So.2d 213 (Miss.2007) (in case interpreting general venue statute, the alleged negligence was the act of refusing to renew insurance policy; where all communications were sent from Madison County and thus, all decisions occurred there, the Court noted that “every substantial act, omission, or injury-causing event occurred in Madison County”); Holmes v. McMillan, 21 So.3d 614, 619 (Miss.2009) (interpreting general venue statute, venue was proper in location where decision was made to reject settlement demand).

¶ 11. This Court has never explicitly addressed this issue under the MTCA venue statute. In Estate of Jones, Jones died in the Simpson County jail. Estate of Jones, 716 So.2d at 625. The plaintiffs filed suit in Hinds County and maintained that Jones was murdered, and also alleged simple negligence and wrongful death. Id. Included as defendants were various employees of the state who had responsibilities for the safety of the prisons. Id. In examining whether the state defendants were fraudulently included in the lawsuit, the Court determined that the various reasons for including the state defendants were based upon their responsibilities to investigate and maintain proper conditions at state institutions and their duty to oversee the State Medical Examiner’s Office and involvement in a statewide prisoner screening program. Id. at 628. The Court then transferred venue to Simpson County, finding that “proper venue is in the county in which the negligence took place.” Id. However, the Court did not discuss, and the plaintiffs did not appear to argue, that any negligence took place in Hinds County. Rather, it appears that the argument in this case was that venue was proper in Hinds County because the state defendants were Hinds County residents. Id. at 627. Thus, the case did not specifically address whether the location of the state defendants’ decisions provided a permissible venue.

¶ 12. Likewise, in Mississippi Crime Laboratory v. Douglas, this Court did not have the opportunity to address the specific issue at hand. Miss. Crime Lab. v. Douglas, 70 So.3d 196 (Miss.2011). The plaintiffs filed a wrongful incarceration claim in Hinds County based on an allegedly negligent autopsy performed in Rankin County. Id. at 202-03. “The plaintiffs argue[d] that venue [was] proper in Hinds County because the principal offices of the Mississippi Crime Laboratory and the Mississippi State Medical Examiners Office are located in Hinds County.” Id. at 203. However, the plaintiffs took “a different approach on appeal, raising issues regarding whether the Mississippi Crime Laboratory and Mississippi State Medical Office failed to perform certain duties (e.g., negligently failing to utilize proper testing procedures and negligently training employees), which led to Douglas’s wrongful incarceration.” Id. at 203 n. 2. Thus, because the arguments regarding alleged acts that took place in Hinds County were new on appeal, this Court declined to consider them, and only considered the argument that venue was proper in Hinds County because Hinds County was where the principal offices were located. Id. The Court ultimately concluded that venue was proper in Rankin County, where the act or omission (the autopsy) occurred. Id. at 203.

¶ 13. In this case as well, we decline to decide whether decisions such as those made be MDHS may provide the basis for venue because S.C. simply fails to allege any facts that show that any decisions occurred in Hinds County. Instead, she alleges that MDHS’s headquarters are in Hinds County, and so, logically, one must assume the decisions must have occurred in Hinds County. Such an extrapolation does not amount to a factual basis for the claim of venue. No credible evidence exists supporting the factual basis for the claim of venue in Hinds County. See Estate of Jones, 716 So.2d at 627. The only permissible venue under the facts of this case, as alleged in the complaint, is the location where the underlying act or omission occurred — Lauderdale County.

CONCLUSION

¶ 14. The trial court erred in denying the motions to transfer venue because the plaintiff fails to allege a factual basis that Hinds County is a permissible venue, thus this Court reverses the judgment of the Circuit Court of Hinds County and remands the case for a transfer to Lauder-dale County.

¶ 15. REVERSED AND REMANDED.

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

      . PSI joins all of Alliance’s motions and briefs, and they will be referred to jointly as "Alliance.”

      . In her response to MDHS’s motion to transfer venue in the trial court, S.C. stated that the DHS "employees’ omissions were committed by the DHS employees wherever they were located when they failed to act. It can hardly be argued that ultimately the authority and responsibility for supervision of DHS employees rests in Hinds County, Mississippi, the location of DHS headquarters.”

      . Because we find that the case should be transferred to Lauderdale County under the MTCA, we decline to address Alliance’s argument in the alternative that the case against it should be severed and transferred to Lauder-dale County.


author: DICKINSON, Presiding Justice, KING, Justice,

text:
    STATE of Mississippi v. Nina BUCKHALTER a/k/a Nina R. Buckhalter a/k/a Nina Rozanne Buckhalter.
    No. 2012-CA-00725-SCT.
    Supreme Court of Mississippi.
    Aug. 8, 2013.

      Office of the District Attorney, Fifteenth District by Lauren B. Harless, Douglas E. Miller, Haldon J. Kittrell, attorneys for appellant.
    Robert B. McDuff, Jacob Wayne Howard, Jackson, Karl C. Hightower, Farah Diaz-Tello, attorneys for appellee.
   DICKINSON, Presiding Justice,

for the Court:

¶ 1. The Lamar County grand jury indicted Nina Buckhalter for culpable-negligence manslaughter after she gave birth to a stillborn baby girl. The circuit court dismissed the indictment, finding certain language in the manslaughter statute to be “vague and ambiguous,” when applied to “a woman who has caused the miscarriage or stillbirth of her unborn child.” The State appealed. Because we find the indictment was fatally flawed, we affirm its dismissal without reaching the issue addressed by the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 2. In her thirty-first week of pregnancy, Nina gave birth to a stillborn child, Hayley Jade Buckhalter. A Lamar County grand jury indicted Nina for culpable-negligence manslaughter under Section 97-3^47, which defines manslaughter as the “killing of a human being, by the act, procurement, or culpable negligence of another.” The indictment alleged that Nina

did willfully, unlawfully, feloniously, [kjill Hayley Jade Buckhalter, a human being, by culpable negligence, contrary to and in violation of Section 97-3-47, of the Mississippi Code of 1972, as amended; against the peace and dignity of the State of Mississippi.

¶ 3. The indictment failed to disclose how Nina allegedly caused Hayley Jade’s death, but from statements in other pleadings, we assume the State planned to prove at trial that she ingested illegal drugs during the course of her pregnancy. And neither the indictment nor anything else in the record identifies the type of illegal drugs allegedly involved.

¶ 4. Nina filed a motion to dismiss the indictment, arguing the word “other” in the manslaughter statute did not apply to a pregnant woman for the death of her unborn child; and that, at best, the word was ambiguous. The State opposed the motion, but the Lamar County Circuit Court granted it, stating that Section 97-3-47 was “vague as to whether the legislature intended the term ‘other’ to be specifically inclusive of the pregnant woman herself as against her own unborn child.” The State appealed, raising two issues:

I. Whether the circuit court erred by dismissing the indictment upon finding that the manslaughter statute was vague.
II. Whether the circuit court erred by considering the legislature’s failed attempts to pass laws that specifically would criminalize a mother’s conduct which harms her unborn child.

¶ 5. Because the indictment against Nina was fatally flawed, our analysis of the case must end there. We affirm dismissal of the indictment, but for reasons other than those stated by the circuit judge, and we decline to address the merits of either of the issues presented.

DISCUSSION

¶ 6. Mississippi’s manslaughter is included in Title 97 of the Mississippi Code. Within Title 97 — prior to the manslaughter statute — are two statutes (discussed later) that criminalize the intentional killing of a fetus. Comes then the manslaughter statute which states in its entirety:

Every other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in this title, shall be manslaughter.

¶ 7. So the manslaughter statute applies only where there is no other applicable criminal statute under Title 97. Stated another way, the manslaughter statute does not apply to conduct that may be prosecuted under any other Title 97 statute. And here — assuming Nina did what the indictment charged she did— there are two statutes under which her conduct may have been prosecuted.

¶ 8. If, as the indictment alleges, Nina indeed did “willfully ... kill” her unborn child — and assuming the term “any person” applies to Nina, an issue we do not reach today — she could have been prosecuted under Section 97-3-3(1), which states:

Any person wilfully and knowingly causing, by means of any instrument, medicine, drug or other means whatsoever, any woman pregnant with child to abort or miscarry ... shall be guilty of a felony unless the same were done by a duly licensed, practicing physician ...

¶ 9. Also, she could have been prosecuted under Section 97-3-19(1), which provides:

The killing of a human being without the authority of law by any means or in any manner shall be murder ... (d) when done with deliberate design to effect the death of an unborn child.

¶ 10. So, because Nina’s conduct — as alleged in the indictment — is addressed in other Title 97 statutes, it may not be prosecuted under Section 97-3-47.

¶ 11. We must address two prior cases that might seem to — but do not — conflict with our holding today. In Williams v. State, the defendant was indicted for “willfully and feloniously killing] and slayfing] one John Turner, a human being, by culpable negligence.” The 1931 culpable-negligence manslaughter statute was similar to ours today, and provided: “every other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in this chapter, shall be manslaughter.”

¶ 12. On appeal from the trial court’s denial of Williams’s demurrer, he did not argue that, because he could have been prosecuted under other statutes, he could not be prosecuted for manslaughter. This Court did not address the issue.

¶ 13. Similarly, the defendant in Yazzie v. State was indicted for “unlawfully, wil-fully, and feloniously ... killing] and slay[ing] one Phyllis Waits, a human being ...” under Section 97-3-47. Yazzie’s con-vietion was affirmed on appeal, but he neither raised nor argued the issue before us today. But to be clear, to the extent they conflict with today’s opinion, we overrule Williams and Yazzie.

¶ 14. We also note that Nina’s counsel did not employ this argument in challenging the indictment in the trial court, nor was it briefed to this Court on appeal. It was raised at oral argument, however, and the State conceded that the indictment was flawed because the “willful” language should not have been included as there was no evidence of a willful killing. Because the flaw in Nina’s indictment is clear and obvious, and because it affects a fundamental right, we have elected to address the issue as plain error.

¶ 15. We also express concern over the indictment’s failure to provide any notice or information whatsoever as to how the State alleges Nina “did willfully, unlawfully, feloniously, [kjill Hayley Jade Buckhal-ter, a human being, by culpable negligence.” We need not elaborate further on this curious omission.

CONCLUSION

¶ 16. This Court will affirm a trial court that has reached the right result, even if we disagree with — or, as here, decline to address — the trial court’s reasoning. Nina’s indictment for manslaughter, which alleges she “willfully” caused the death of her child, is fatally flawed, so we affirm the trial court’s dismissal of the indictment.

¶ 17. AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., LAMAR, PIERCE AND COLEMAN, JJ., CONCUR. KING, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND CHANDLER, JJ.

KING, Justice,

concurring in result:

¶ 18. Finding the manslaughter statute to be vague and ambiguous regarding whether Buckhalter may be prosecuted for the death of her unborn child, the trial court dismissed Buckhalter’s indictment. The majority opinion finds the indictment to be flawed and dismisses the indictment, but leaves room for the State simply to reindict Buckhalter. See Miss.Code Ann. § 99-1-9 (Rev.2007). If the majority were able to dismiss the case with prejudice, I would concur. However, it cannot. For this reason, I join solely in the result.

¶ 19. Buckhalter did not raise the indictment issue below or on appeal. As noted by the majority, the issue was raised by the Court in oral argument. When asked about the indictment during oral argument, Buckhalter’s appellate counsel requested that the Court address the merits of the case rather than having the case returned to circuit court for a new indictment and then returned here. I agree with Buckhalter’s counsel that this Court, in the interest of judicial economy, should address the merits of this matter. The merits of the case are subject to repetition and should be addressed by the Court. See Miss. Ethics Comm’n v. Comm. on Prof'l Responsibility of the Miss. Bar, 672 So.2d 1222, 1224 (Miss.1996).

¶ 20. Since I have been a member of this Court, this issue has arisen twice. First, in Gibbs v. State, the Court initially granted Gibbs’s request for interlocutory appeal to determine whether the depraved-heart-murder statute applied to women who gave birth to stillborn babies. Gibbs v. State, 2010-IA-00819-SCT, Order No. 172566 (Miss. October 27, 2011). The Court even heard oral arguments in the case. Id. (King, J., objecting). Then, 498 days after having granted the interlocutory appeal, the Court decided it had granted improvidently Gibbs’s request for an interlocutory appeal and remanded the case to trial. Id.

¶ 21. Now, Buckhalter is before the Court with a very similar issue. Today’s decision places Buckhalter at risk of substantial injury — reindictment and a possible trial and conviction. Also with rein-dictment, Buckhalter will have the same issue to present to the circuit court for resolution — whether she can be charged for murder of any kind under Mississippi statutes. Buckhalter’s case, like Gibbs, will be back to square one. If the majority feels compelled to address the merits of an issue never raised by the defense, it certainly should feel compelled to address Buckhalter’s concerns, which are properly before this Court and possibly could end the case.

¶ 22. Thus, in the interest of judicial economy, I would address the case on the merits.

KITCHENS AND CHANDLER, JJ., JOIN THIS OPINION.

      . The Attorney General’s Office has not filed a brief in this matter. The State's brief is authored by the District Attorney’s Office of the Fifteenth District.

      . Miss.Code Ann. § 97-3-47 (Rev.2006).

      . (Emphasis added.)

      . (Emphasis added.)

      . The record does not identify the type of drugs Nina is accused of ingesting.

      . Miss.Code Ann. § 97-3-47 (Rev.2006) (emphasis added).

      . Miss.Code Ann. § 97-3-3(1) (Rev.2006).

      . Miss.Code Ann. § 97-3-19(l)(d) (Rev.2006). A "human being,” for purposes of this statute, includes an unborn child. See § 97-3-37(1 )(d)(Rev.2006).

      . Williams v. State, 161 Miss. 406, 137 So. 106, 107 (1931).

      . Id. (quoting Section 1002, Code 1930) (emphasis added).

      . Yazzie v. State, 366 So.2d 240, 242 (Miss.1979).

      . “Under the plain-error doctrine, we can recognize obvious error which was not properly raised by the defendant on appeal, and which affects a defendant's 'fundamental, substantive right.’ ” Smith v. State, 986 So.2d 290, 294 (Miss.2008) (citations omitted).

      . "Plain-error review is properly utilized for 'correcting obvious instances of injustice or misapplied law.’ ” Id. (quoting Newport v. Fact Concerts, 453 U.S. 247, 256, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981)).

        . See Falco Lime, Inc. v. Mayor and Aldermen of City of Vicksburg, 836 So.2d 711, 725 (Miss.2002) (citing Jackson v. Fly, 215 Miss. 303, 311, 60 So.2d 782, 786 (1952)).