author: ROBERTS, J., IRVING, P.J.,

text:
    Earnest Ray MAGEE, Appellant v. COVINGTON COUNTY BANK, Appellee.
    No. 2011-CA-00589-COA.
    Court of Appeals of Mississippi.
    Sept. 25, 2012.
    Rehearing Denied April 23, 2013.
    Certiorari Denied Aug. 8, 2013.

      George Thomas Sullivan, Collins, attorney for appellant.
    Audry Regnal Blackledge, Hattiesburg, attorney for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. After a scheduled hearing, Coving-ton County Bank (CCB) was granted a writ of replevin by the Covington County Circuit Court to seize Earnest Ray Ma-gee’s property that served as collateral for a loan. However, on Magee’s motion, the replevin was later set aside. Over a year later, Magee filed a motion for a writ of inquiry seeking damages for wrongful detention of his property. The motion was initially granted but later set aside due to lack of jurisdiction. The circuit court found it lost jurisdiction when the matter was transferred to justice court.

¶ 2. Magee now appeals asserting the circuit court erred in setting aside his writ of inquiry. We agree that the order granting Magee a writ of inquiry should have been set aside; however, we find that jurisdiction was lacking not because the matter was transferred to justice court, but, rather, because the circuit court had no jurisdiction under statutory replevin law to entertain a writ of inquiry. Thus, the order regarding the writ of inquiry from which Magee appeals is not a final, appealable judgment. For this reason, we must dismiss this appeal for lack of jurisdiction.

FACTS AND PROCEDURAL HISTORY

¶ 3. The record in this case is sparse. There exists no testimony by the parties or any witnesses. The underlying facts are gleaned from the pleadings, motions, exhibits, orders, and documents that do appear in the record.

¶ 4. This case began when Magee fell behind on a collateralized note owed to CCB. The collateral consisted of a 1991 Chevrolet pickup truck, a 1996 Ford pickup truck, and a utility trailer. On July 7, 2008, CCB filed a sworn complaint in re-plevin in the Covington County Circuit Court for the seizure of Magee’s property that secured the note. The sworn complaint alleged Magee was an adult resident citizen of Covington County and did not request a pre-seizure of the collateral. On July 11, 2008, an order was filed setting a hearing on August 1, 2008, in the county courthouse in Mendenhall, Simpson County, Mississippi, and requiring that Magee be issued a summons to appear on that date. The clerk issued a summons on that date. There is a hand-written return stating it was “[sjerved 7-19-2008,” and it is signed: “James Morehead, P.O. Box 291, D’Lo[,] Ms. 39062.”

¶ 5. Magee appeared and met with CCB’s attorney on August 1, 2008, in Men-denhall and apparently agreed with the attorney to pay his loan deficiency of $1,061.21 within two weeks, or the bank would pick up the collateral. A letter written by CCB’s attorney to the judge shows Magee apparently failed to timely pay the agreed amount. On August 27, 2008, the circuit court entered its order granting replevin and directed the issuance of the writ of replevin to the sheriff. CCB attempted to seize the collateral but was unable to locate it until December 2008. It was not until after the property was located and seized that Magee employed an attorney and moved to set aside the order granting replevin.

¶ 6. Magee’s motion to set aside the replevin was filed on February 24, 2009. He argued that the replevin should be set aside for insufficient service of process. He claimed the summons was defective because it ordered him to appear in court in Mendenhall, Mississippi, on a date the court was not in session. On May 8, 2009, CCB filed a response and a motion to hold Magee in contempt for concealing the property that was subject to seizure. Ma-gee denied he had attempted to conceal the property. The next two orders entered by the circuit court are somewhat confusing. In an order signed June 23, 2009, but “nunc pro tunc June 12, 2009,” the circuit court granted Magee’s motion and stated that the prior order granting the writ of replevin filed on August 27, 2008, was “set aside and of ... no effect.” The circuit court also ordered on its own motion that “this case [be] remanded to the Justice Court of Covington County, Mississippi!,] to determine if any attorney’s fees and late charges are due the [p]laintiff from the defendant.” Another order was signed on June 16, 2009, by the circuit judge on his own motion. It stated “that the above styled and numbered [cause] should be, and the same hereby is, remanded to the Justice Court of Coving-ton County, Mississippi,] for disposition.”

¶ 7. Apparently, the dispute over attorney’s fees and late charges proceeded to justice court. However, before a trial there, Magee counterclaimed for actual damages of $24,300 and punitive damages, all above the jurisdictional limits of justice court set out in Mississippi Code Annotated section 9-11-9 (Supp.2011). The justice court dismissed the ease without prejudice on March 24, 2010, for lack of jurisdiction.

¶ 8. Magee then returned to the circuit court seeking damages. On July 8, 2010, Magee filed a motion for a writ of inquiry in the circuit court replevin action to determine damages pursuant to Mississippi Code Annotated section 11-37-129 (Rev. 2002). This motion was granted on September 24, 2010, by a new circuit judge following the untimely death of his predecessor. On January 4, 2011, CCB filed a motion for relief from judgment or, alternatively, for reconsideration. In this and a previous motion, CCB stated that it had retained possession of the collateral since December 2008 and that Magee could retake his collateral if he would pay CCB its attorney’s fees and court costs as Magee was obligated to pay under the promissory note and security agreement. On January 6, 2011, the circuit court granted CCB’s motion for relief from judgment, finding that jurisdiction was lost when the case was transferred to justice court. The circuit court also noted that since a judgment was never entered in favor of Magee, CCB had wrongfully pre-seized the property, section 11-37-129 did not apply, and Ma-gee was not entitled to a writ of inquiry. Accordingly, the circuit court held the order granting the writ of inquiry was void.

¶ 9. Magee then filed a motion for reconsideration, arguing that the circuit court had jurisdiction because his motion for a writ of inquiry effectively created a new action in the circuit court. This motion was denied in an order filed on March 28, 2011. In this order, the circuit court found that although the order sending the matter to justice court was titled a “remand,” its actual intent was to transfer the matter. Thus, the circuit court found that it had no jurisdiction to enter any further orders after June 16, 2009 — the date of the order transferring the matter to justice court. It is from the March 28, 2011 order that Magee appeals.

STANDARD OF REVIEW

¶ 10. Jurisdiction is a matter of law, which is reviewed de novo. Entergy Miss., Inc. v. Burdette Gin Co., 726 So.2d 1202, 1204-05 (¶ 5) (Miss.1998). The denial of a motion for reconsideration under Rule 59 or Rule 60 of the Mississippi Rules of Civil Procedure is reviewed for an abuse of discretion. Smith v. Harrison Cnty., 67 So.3d 815, 816 (¶ 4) (Miss.Ct.App.2011).

ANALYSIS

¶ 11. Magee argues the circuit court erroneously set aside the order granting the writ of inquiry. However, we find this issue moot because our replevin statutes do not allow for a writ of inquiry where there is no pre-seizure of property. Because it is not allowed by statute, the circuit court was without jurisdiction to enter an order granting Magee a writ of inquiry.

¶ 12. Before proceeding, we note that, regrettably, neither party raised on appeal the issue of the circuit court’s jurisdiction to grant a writ of inquiry thirteen months after the replevin action was concluded. However, jurisdiction over replev-in actions is statutory and is not waived for failure to raise it on appeal. See Duvall v. Duvall, 224 Miss. 546, 552, 80 So.2d 752, 754 (1955) (“[Pjarties cannot, by consent, give a court ... jurisdiction of subject matter of which it would otherwise not have jurisdiction. Jurisdiction in this sense cannot be increased or diminished by the consent of the parties.”).

¶ 13. Replevin is a possessory action for personal property governed by statute. Ferris v. Hawkins, 418 So.2d 811, 813 (Miss.1982); M.R.C.P. 64 cmt. Mississippi Rule of Civil Procedure 64, “Seizure of Person or Property,” provides the means by which replevin actions are taken. Rule 64 states:

At the commencement of and during the course of an action, all remedies providing for the seizure of person or property for the purpose of securing satisfaction of the judgment ultimately to be entered in the action are available under the circumstances and in the manner provided by law. These remedies include ... replevin, ... however designated and regardless of whether the remedy is ancillary to an action or must be obtained by an independent action.

The official comment to Rule 64 states:

Rule 64 provides that the provisional remedies available under Mississippi law for the seizure of persons or property as security for satisfying a judgment that ultimately may be entered in a civil action continue to be available under the [Mississippi Rules of Civil Procedure]. Those remedies are to be resorted to in accordance with statutory law[.] [S]ee, e.g., Miss.Code Ann. §§ ... 11-37-101 et seq. (replevin)....

The replevin statutes, Mississippi Code Annotated section 11-37-101 through 11-37-157 (Rev.2002), are “supplemented only by so much of the MRCP as are not inconsistent with those statutes.” Hall v. Corbin, 478 So.2d 253, 256 (Miss.1985).

¶ 14. The replevin statutes provide for two types of actions — one under Mississippi Code Annotated section 11-37-101 in which the property sought is immediately seized under bond, and one under Mississippi Code Annotated section 11-37-131 in which immediate seizure is -not sought. It is without dispute the replevin action filed by CCB was filed under section 11-37-131, which is entitled, “How replev-in commenced — immediate seizure of property not sought.” This section does not provide for a writ of inquiry. The purpose of a writ of inquiry is to determine a defendant’s damages when property is pre-seized — meaning it is seized before a hearing under section 11-37-101 — and, upon holding a hearing, a judgment is made in favor of the defendant. Miss. Code Ann. §§ 11-37-125, 11-37-129. Ma-gee’s property was not the subject of pre-seizure; therefore, the applicable code section is 11-37-131. The provisions allowing for a writ of inquiry under section 11-37-129 simply do not apply.

¶ 15. Because a writ of inquiry was not appropriate in this matter, jurisdiction ended when the replevin action ended. The replevin was granted on August 27, 2008. Magee filed a motion to set aside the replevin on February 24, 2009 — almost six months after the replevin was granted. Since this was the first action taken after the August 27, 2008 order, Magee’s motion was the functional equivalent of a motion for relief from judgment under Mississippi Rule of Civil Procedure 60(b)(4). Magee’s motion falls under Rule 60(b)(4), pertaining to void judgments, because Magee’s contention was that the service of process was insufficient. Rule 60(b)(4) allows a party to file a motion for relief from a void judgment “within a reasonable time.” Although not determined by the circuit court, we presume the motion was filed “within a reasonable time.” The order granting the Rule 60(b)(4) motion was signed on June 23, 2009, and was based on Magee’s motion claiming insufficient service of process. This was a final judgment from which an appeal could be properly taken. Neither party appealed. Even though Magee claimed at that time he was entitled to possession of the collateral, he took no further steps to refile a replevin to determine the right of possession.

¶ 16. Instead, Magee filed a motion for a writ of inquiry requesting a jury trial. This was not the appropriate means for Magee to seek damages. A writ of inquiry to assess damages in a statutory replevin action lies only when the plaintiff utilizes the procedures of pre-seizure and bond found in sections 11-37-101 and 11-37-129 and the plaintiff loses at trial and is ordered to return the pre-seized property to the defendant. That simply did not happen in this case. There was no pre-seizure of Magee’s property; rather, the property was seized after Magee had actual notice of a scheduled hearing and an order was entered by the circuit court holding CCB was entitled to the property. Thus, CCB’s complaint in replevin falls under section 11-37-131, “How replevin commenced — immediate seizure of property not sought.” The proper statutory procedures for CCB’s replevin complaint are in Mississippi Code Annotated section 11-37-141, “Judgment for plaintiff where property not previously seized,” and Mississippi Code Annotated section 11-37-143, “Judgment for defendant where property not previously seized.” These sections do not allow for a writ of inquiry. Section 11-37-143 states: “In any replevin action in which the property has not been previously seized by writ of replevin, if the defendant be successful in such action, the judgment of the court shall be that the declaration of the plaintiff be dismissed and court costs assessed against the plaintiff.” Thus, the remedy pursuant to statute was for the circuit court to dismiss the action and assess costs. Again, no writ of inquiry is allowed.

¶ 17. By holding that Magee had no right to a writ of inquiry, we do not infer that Magee has no potential remedy. Any claim for damages Magee may have suffered from CCB’s taking of his property could have been brought in a civil suit for conversion, or Magee (if he only desired return of his property) could have filed his own replevin action as CCB continued to maintain possession of his property.

¶ 18. Before concluding, we find it necessary to address Magee’s complaint throughout these proceedings that he was not properly noticed in the replevin action. A replevin complaint may be filed in any county where the defendant, the property, or some of the property may be found, and process may be issued to other counties. Miss.Code Ann. § 11-37-107. “The summons in replevin shall be executed by summoning the defendant as in other civil cases....” Miss.Code Ann. § 11-37-135. The complaint was filed in Covington County. Process was issued and purportedly served on Magee on July 17, 2008, noticing a hearing on August 1, 2008, in the county courthouse in Mendenhall, Simpson County, Mississippi. This was proper because a replevin action “shall be triable in termtime or in vacation and at such place as the court may direct.” Miss. Code Ann. § 11-37-139. Magee is correct that the information in the record appears to be insufficient to show process was properly made. There is not a complete, signed return showing proof of service as required by Mississippi Rule of Civil Procedure 4(f). The return also does not make clear who was served with process or whether the requirements of Mississippi Rule of Civil Procedure 4(d) were met. Regardless of these deficiencies, Magee appeared at the Simpson County Courthouse in Mendenhall on August 1, 2008. This is evidenced by a letter dated August 4, 2008, from CCB’s attorney to the judge. The letter informs the judge that a meeting was held on “Friday, August 1, 2008[,] in Simpson County,” in which Magee agreed to catch up his note and pay attorney’s fees within two weeks, or CCB would “ask for an order to pick up the two trucks and utility trailer.”

¶ 19. Although the circuit court reached the correct result — that it lacked jurisdiction to grant a writ of inquiry — it did so for the wrong reason. The circuit court reasoned that jurisdiction was lost when the case was transferred to justice court. However, a writ of inquiry for damages is not allowed by Mississippi’s replevin statutes under the facts of this case; thus, the circuit court’s jurisdiction was lost when the final order was entered in the replevin action. The replevin action concluded with the last order signed on June 28, 2009, and no appeal or further action was taken from that order. The circuit court had no jurisdiction to entertain Magee’s motion for a writ of inquiry. Likewise, this Court also lacks jurisdiction and must dismiss this appeal.

¶ 20. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., GRIFFIS, P.J., ISHEE, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES AND RUSSELL, JJ.

IRVING, P.J.,

dissenting:

¶ 21. For more than three years, CCB has retained possession of Magee’s property without sending him notice of its intent to sell the property or to retain it in complete satisfaction of the debt, as required by the Uniform Commercial Code. See Miss.Code Ann. §§ 75-9-610, -611, -620 (Rev.2002). In my judgment, this constitutes a wrongful retention of Ma-gee’s property. Now the majority, exhorting form over substance, finds that the circuit court — which erroneously ordered the property turned over to CCB, but shortly thereafter rescinded the order— did not have jurisdiction in a writ-of-inquiry proceeding to assess damages against CCB for the wrongful retention of Magee’s property. Moreover, the basis upon which the majority finds that the circuit court lacked jurisdiction to hear the writ of inquiry — the commencement of the replevin action under Mississippi Code Annotated section 11-37-131 (Rev.2002) rather than under Mississippi Code Annotated section 11-37-129 (Rev.2002) — was never raised by CCB. Additionally, there is no authority for the majority’s position that a writ of inquiry can only issue in cases instituted under section 11-37-129. Therefore, I dissent. I would reverse the judgment of the circuit court denying Magee’s motion for reconsideration and remand this case for proceedings on the question of damages.

¶ 22. I admit that the need for a writ of inquiry will arise normally only when a plaintiff has taken immediate possession of property and thereafter was adjudicated not entitled to possession. The majority says that “[t]he purpose of a writ of inquiry is to determine a defendant’s damages when property is seized before a hearing under section 11-37-101 and, upon [the court] holding a hearing, a judgment is made in favor of the defendant.” Maj. Op. at (¶ 14). What the majority overlooks is that the real purpose for the writ of inquiry is not to ensure obedience to a proper procedural formality, but to ensure that a defendant will be timely compensated when a plaintiff has wrongfully enjoyed use and possession of a defendant’s property as a result of actions taken by the plaintiff, which is the case here. Therefore, I see no legal impediment or procedural hurdle to the grant of a writ of inquiry to assess a defendant’s damages when a plaintiff continues to retain possession of property after the order granting the right of possession has been set aside.

¶ 23. After the circuit court granted the writ of inquiry, CCB filed a motion for reconsideration, which the circuit court granted and set aside the previous order granting a writ of inquiry. In its motion, CCB did not allege or argue that the grant of the writ of inquiry was improper because the replevin action had been initiated under section 11-37-131 rather than under section 11-37-129. CCB asserted that Magee had not prevailed because the circuit court did not enter a judgment in his favor. CCB erroneously argued that the circuit court had sent the entire case to the justice court for trial and that Magee had caused the case to be dismissed in justice court because of he inserted a counterclaim that was beyond the justice court’s jurisdictional limit. Essentially, CCB contended that Magee had not prevailed on the merits and that his case had been dismissed without any final determination on the validity of the replevin order. In fact, CCB submitted that a writ of inquiry would have been proper if Ma-gee had prevailed on the merits. However, CCB was mistaken regarding what had been transferred to the justice court. When the circuit court entered the second order on June 23, 2009, that order transcended the earlier order because it was entered within ten days of the first order. See M.R.C.P. 60(c). The latter order only transferred the issue of attorney’s fees to the justice court. Therefore, the circuit court’s order setting aside the order of replevin remained in place.

¶ 24. In my judgment, the majority erroneously holds that the circuit court did not have subject-matter jurisdiction to grant the writ of inquiry because “our replevin statutes do not allow for a writ of inquiry where there is no pre-seizure of property.” Maj. Op. at (¶ 11). A correct statement regarding what our replevin statutes allow would be that a writ of inquiry must be held to determine a defendant’s damages when a plaintiff has wrongfully taken immediate possession of the defendant’s property. Our statutes are silent as to whether a writ of inquiry may be invoked in other instances. Further, it seems to me that the majority has confused procedural formality in a special area of the law with the circuit court’s general jurisdiction. It cannot be legitimately argued that the circuit court does not have jurisdiction to grant writs of inquiry. It is done all the time in civil cases where a default judgment is entered for a plaintiff in an unliquidated-damages case. The domestic-relations case, Duvall v. Duvall, 224 Miss. 546, 80 So.2d 752 (1955), cited by the majority, provides no support for the notion that our circuit courts do not possess jurisdiction to grant writs of inquiry in replevin actions under section 11-37-131. Duvall stands simply for the proposition that parties cannot confer general jurisdiction on the courts.

¶ 25. The majority states that Magee was not without remedy — that he “could have ... brought ... a civil suit for conversion, or ... could have filed his own replevin action.” Maj. Op. at (¶ 17). It seems to me, given the facts of this case and the interconnectedness of the damages claim with the replevin action, that judicial economy, if nothing else, requires that the issues be resolved in the replevin action.

¶ 26. Therefore, for the reasons discussed, I dissent. I would reverse and remand this case for further proceedings on the question of damages.

BARNES AND RUSSELL, JJ„ JOIN THIS OPINION.

      . The dissent’s opening paragraph states: "In my judgment, this constitutes a wrongful retention of Magee's property.” This conclusion assumes facts not in the record and is unnecessary to resolve this appeal. There has been no determination that CCB wrongfully retained the collateral for three years. To the contrary, the record shows that Magee, through his promissory note, agreed to relinquish possession of the collateral to CCB and pay attorney's fees and expenses if he was in default on the loan. It is undisputed Magee was in default on the loan when CCB instituted the replevin action. It appears that CCB was willing at all times to allow Magee to redeem the collateral if he caught up the note and paid CCB's legitimate collection expenses. Magee failed to do so, and CCB simply retained possession according to the security agreement. Moreover, the dissent draws this conclusion with no witnesses having testified, no admissions by CCB in any of its pleadings, no summary judgment, and no determination by the trial court that such retention was wrongful. Thus, the conclusion that CCB wrongfully retained the collateral for three years is not justified.

      . Apparently the majority concludes that CCB is justified in doing so because it says there has been no determination that CCB wrongfully retained the collateral for three years and that it appears that CCB, at all times, has been willing to allow Magee to redeem the collateral if he caught up the note and paid CCB’s legitimate collection expenses. This reasoning overlooks the fact that once CCB obtained possession of the property, it was required to take action. That the security agreement allows for repossession after default cannot be used to justify CCB's failure to follow the requirements of law post-default.

      . The complaint is silent as to which code section CCB was proceeding under.

      . Specifically, CCB alleged:
      Magee cannot file a counter claim in this replevin suit, but is limited to filing for Writ of Inquiry, which can only be done "after judgment for the defendant on the question of possession of the property." Ferris v. Hawkins, 418 So.2d 811, 813 (Miss.1982) [ (citing, [Fin.] [Am.] Private Brands, Inc. v. Durbin, 370 So.2d 1356, 1358 (Miss.1979))].
      [The circuit] [cjourt sent the case to justice court, and it was dismissed because of Ma-gee's counter claim. This court relinquished its jurisdiction to the lower court, and the lower court dismissed the suit. Therefore, the case is over.
      There was never any [o]rder reinstating or reviving the case in [the circuit] [c]ourt. Without that, the [o]rder granting a Writ of Inquiry is a mistake and is void because [the circuit] [c]ourt is no longer vested with jurisdiction.


source: Caselaw Access Project

author: MAXWELL, J.,

license: Public Domain

text:
    Marty Phillip PARISI a/k/a Marty Parisi, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01050-COA.
    Court of Appeals of Mississippi.
    Nov. 13, 2012.
    Rehearing Denied May 14, 2013.
    Certiorari Denied Aug. 8, 2013.

      Edmund J. Phillips Jr., Newton, attorney for appellant.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Marty Parisi was convicted of methamphetamine possession. On appeal, he challenges three of the trial judge’s eviden-tiary rulings as well as the judge’s imposition of a sixty-year enhanced sentence without first conducting a Solem hearing. We find Parisi’s second statement to investigators, in which he admitted that he possessed methamphetamine, was properly admitted in rebuttal for the limited purpose of impeaching his prior inconsistent statement and testimony. We also find the trial judge correctly excluded specific evidence about Parisi’s drug-related reputation, and that Parisi cannot challenge his arrest on Fourth Amendment grounds, after failing to raise the issue at trial. We also reject his proportionality argument, because his enhanced sentence falls within the statutory guidelines. For these reasons, we find no reversible error and affirm his conviction and sentence.

Background

¶ 2. While investigating another crime, two Scott County sheriffs deputies came across Marty Parisi’s white pickup truck, parked in front of the suspect’s house. A second man, who had been leaning in the window of the truck, threw something under the truck as he walked away. Suspicious, the officers detained the men and asked Parisi if they could search his truck. Parisi consented but told them that, if they found anything, it was not his.

¶ 3. The officers found a briefcase underneath the floor mat containing over 100 grams of methamphetamine, as well as 2.4 grams of marijuana in the console. Parisi denied the briefcase belonged to him. He told the officers he had ducked when he was told they were approaching his truck. And while crouching down, he felt a box hit his leg — insinuating someone had thrown the briefcase into the truck while he was not looking.

¶ 4. After a jury trial in which he testified, Parisi was convicted of possession of more than thirty grams of methamphetamine, a Schedule II controlled substance, and possession of less than thirty grams of marijuana, a Schedule I controlled substance. Parisi appeals his conviction and sixty-year enhanced sentence based on his status as a prior drug offender and habitual (nonviolent) offender.

Discussion

I. Admissibility of Parisi’s Confession

A. State’s Impeachment of Parisi’s Testimony

¶ 5. In his initial recorded statement to investigators, Parisi claimed the metham-phetaraine found on the truck’s floorboard was not his. This statement was introduced at trial during Parisi’s testimony. The State sought to impeach Parisi with a second statement he had made weeks later, during negotiations with investigators about becoming an informant. One of the conditions was that Parisi admit where he got the drugs. Though Parisi did not become an informant, he told the two officers where he had obtained the methamphetamine.

¶ 6. When the State tried to question Parisi about this second, conflicting statement, Parisi’s counsel objected. His attorney argued the State was trying to “back door in” a statement it could not have introduced in its case-in-chief. He also suggested there might be an issue “whether [Parisi] was Mirandized.” The trial court sustained the objection, allowing the statement to be introduced for impeachment purposes only.

¶7. After Parisi rested, the State offered rebuttal testimony from both officers who were present during Parisi’s second statement. Parisi’s counsel lodged “the same objections we had before” — that the State could not introduce the confession as impeachment evidence becaúse it was inadmissible in the State’s case-in-chief. When the objection was overruled, counsel moved for a mistrial, which was denied.

B. Parisi’s Argument on Appeal

¶ 8. On appeal, Parisi alters his argument about why the confession was inadmissible. He now claims the trial court improperly admitted the confession without first determining whether it was voluntary and admissible in a hearing outside the jury’s presence.

¶ 9. Parisi relies on the following language from Agee v. State, 185 So.2d 671, 673 (Miss.1966): “When [an] objection is made to the introduction of the confession, the accused is entitled to a preliminary hearing on the question of the admissibility of the confession. This hearing is conducted in the absence of the jury.” Parisi claims that because he objected to the admissibility of the confession, he was entitled to a suppression hearing before the confession could be introduced.

¶ 10. But simply objecting to a confession is not enough to trigger the right to a preliminary hearing. Since Agee, the Mississippi Supreme Court has clarified that, for a defendant to be entitled to a preliminary hearing, he must assert the confession is inadmissible because it was involuntary. Booker v. State, 326 So.2d 791, 793 (Miss.1976). Agee was handed down just months before the United States Supreme Court’s decision Miranda v. Arizona, 384 U.S. 436, 467-73, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), in which the Court instituted “superstructure safeguards” to the voluntariness of a confession, commonly referred to as “Miranda warnings.” Powell v. State, 483 So.2d 363, 368 (Miss.1986). A confession obtained through a defective Miranda warning or procedure is inadmissible in the State’s case-in-chief. Booker, 326 So.2d at 792. But failure to advise of Miranda warnings does not automatically render a confession involuntary.

¶ 11. Both the United States Supreme Court and the Mississippi Supreme Court have recognized a category of confessions that are in fact voluntary but nonetheless obtained through defective Miranda warnings or procedure. E.g., Harris v. New York, 401 U.S. 222, 224, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); Sipp v. State, 936 So.2d 326, 331 (¶ 8) (Miss.2006); Booker, 326 So.2d at 792-93. While such a confession cannot be used in the State’s case-in-chief, it may be introduced for impeachment purposes. Booker, 326 So.2d at 792 (quoting Harris, 401 U.S. at 226, 91 S.Ct. 643). And “if the only objection to use of the confession is that it was obtained as a result of a defective Miranda warning, the [S]tate may use the confession to impeach the defendant’s trial testimony without first establishing that the confession was freely and voluntarily given.” Booker, 326 So.2d at 793(citing Oregon v. Hass, 420 U.S. 714, 721-23, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Harris, 401 U.S. at 226, 91 S.Ct. 643) (emphasis added).

¶ 12. In contrast, a confession that is in fact involuntary cannot be admitted for any purpose. Cabello v. State, 490 So.2d 852, 856 (Miss.1986). So if the State seeks to introduce a confession for impeachment purposes, and “[i]f an objection is lodged on the ground that the confession was given involuntarily,” then a preliminary hearing under Agee must be held before admitting the confession. Booker, 326 So.2d at 793 (citing Agee, 185 So.2d at 673) (emphasis added); see Gavin v. State, 473 So.2d 952, 954 (Miss.1985) (citing Jackson v. Denno, 378 U.S. 368, 377, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972)) (“[W]here a criminal defendant challenges the voluntariness of a confession, he has a due process right to a reliable determination that the confession was in fact voluntarily given.”).

¶ 13. Here, Parisi did not object claiming his confession was in fact involuntary. Instead, Parisi’s objection was that he may not have been “Mirandized,” so his confession should not be admitted for impeachment purposes. While the State apparently conceded the second statement was not admissible during its case-in-chief due to a procedural defect, Parisi never challenged the confession’s voluntariness. Thus, we cannot find the trial court erred by allowing the State limited use of Parisi’s confession for impeachment purposes, without first conducting an evidentiary hearing.

II. Admissibility of Parisi’s Good-Character Evidence

¶ 14. As part of his defense, Parisi called his long-time friend Scott Bagley as a character witness. When Parisi’s counsel asked Bagley if he had recently seen Parisi use or possess drugs, the State objected, and the trial court sustained the objection. On appeal, Parisi argues he had a right to put on evidence of his good character. And he contends that the trial court violated this right by prohibiting him from offering evidence “for his character and reputation for engaging in actions directly related to the charges against [him].”

¶ 15. Parisi is correct that a criminal defendant may, “as a matter of right, ... introduce evidence of his or her own good character.” Foster v. State, 794 So.2d 301, 303 (¶ 8) (Miss.Ct.App.2001) (citing Rosser v. State, 230 Miss. 573, 577, 93 So.2d 470, 471 (1957)). But “[p]roof of a character trait ... may not be made by proof of specific past actions. The defendant is limited to offering testimony as to general reputation.” Id. (citing Kearney v. State, 68 Miss. 233, 237-38, 8 So. 292, 293 (1890)); see also Winters v. State, 449 So.2d 766, 770 (Miss.1984) (finding trial court properly excluded character evidence where the defendant “sought to prove her reputation with respect to the commission of specific crimes”).

¶ 16. Parisi argues the proffered character evidence should have been admitted because it relates, not to his general reputation, but instead to his specific reputation with respect to the charged crime. Because only general-reputation evidence is admissible at trial, the trial court properly excluded the testimony about Parisi’s specific drug-related reputation.

III. Admissibility of Physical Evidence Seized

¶ 17. At trial, the State introduced the methamphetamine from the briefcase found under the floor mat beneath Parisi’s feet and the marijuana found in the console. Parisi neither objected at trial nor moved prior to trial to suppress this evidence. On appeal, Parisi claims the drugs were inadmissible “fruits of the poisonous tree” because they were seized as a result of an illegal arrest.

¶ 18. The Fourth Amendment prohibits unlawful searches and seizures. U.S. Const, amend. IV; see also Miss. Const. art. 3, § 23. And the fruit-of-the-poisonous-tree doctrine is an exclusionary rule that makes evidence obtained in violation of the Fourth Amendment inadmissible. Trejo v. State, 76 So.3d 702, 705-06 (¶ 7) (Miss.Ct.App.2010) (citations omitted). Parisi claims for the first time on appeal that his arrest was an unlawful seizure, so the drugs found incident to his arrest were inadmissible.

¶ 19. But Parisi did not raise this claim in the trial court, so it is barred from review by this court. Failure to raise an issue at trial bars consideration on an appellate level. Walker v. State, 913 So.2d 198, 224 (¶ 86) (Miss.2005) (citations omitted). This “rule that failure to object constitutes waiver applies to Fourth Amendment claims as well.” Id. (citing Stevens v. State, 458 So.2d 726, 730 (Miss.1984)). In Walker, while the defendant moved to suppress the physical evidence at a suppression hearing, he did not raise a Fourth Amendment claim. Consequently, the Mississippi Supreme Court held his fruit-of-the-poisonous-tree claim was procedurally barred from appellate review. Id. at 225 (¶¶ 88-89). Similarly, in Clark v. State, 40 So.3d 531, 540 (¶ 20) (Miss.2010), the supreme court held that objecting to the admission of evidence because it was obtained in violation of the defendant’s Fifth Amendment rights was insufficient to preserve a claim that the evidence was obtained in violation of the defendant’s Fourth Amendment rights. “Because [the defendant] did not raise her Fourth[ ]Amendment claims before the trial court,” the supreme court found these arguments were barred from appellate consideration. Id. (citing Ross v. State, 954 So.2d 968, 987 (¶ 27) (Miss.2007)). Applying Walker and Clark, Parisi’s fruit-of-the-poisonous-tree argument is procedurally barred because he failed to make any objection at trial concerning the admission of the drugs — let alone an objection asserting a Fourth Amendment violation.

IV. Proportionality of Sixty-Year Sentence

¶ 20. Finally, Parisi argues the trial court erred by not conducting a hearing on whether his sixty-year enhanced sentence was proportional to his crime and not violative of the Eight Amendment’s prohibition of cruel and unusual punishment. See U.S. Const, amend VIII.

¶ 21. In Solem v. Helm, 463 U.S. 277, 290-92, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), the United States Supreme Court set forth three criteria for Eighth Amendment disproportionality analysis:

(i) the gravity of the offense and the harshness of the penalty;
(ii) the sentences imposed on other criminals in the same jurisdiction; and
(iii) the sentences imposed for commission of the same crime in other jurisdictions.

But in Harmelin v. Michigan, 501 U.S. 957, 965-66, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), the Supreme Court overruled Solem’s holding that the Eighth Amendment guaranteed proportionality. “In light of Harmelin,” our supreme court has held that “Solem is to apply only when a threshold comparison of the crime committed to the sentence imposed leads to an inference of ‘gross disproportionality.’ ” Nichols v. State, 826 So.2d 1288, 1290 (¶ 12) (Miss.2002) (quoting Hoops v. State, 681 So.2d 521, 538 (Miss.1996)).

¶ 22. This court has repeatedly held that a sixty-year enhanced drug-related sentence, within the statutory sentencing guidelines, does not lead to an inference of gross disproportionality. Thus, no Solem analysis is required. E.g., Wells v. State, 57 So.3d 40, 51-52 (¶¶ 44-47) (Miss.Ct.App.2011); Houser v. State, 29 So.3d 813, 823-25 (¶¶ 25-32) (Miss.Ct.App.2009); Hudderson v. State, 941 So.2d 221, 224 (¶ 9) (Miss.Ct.App.2006).

¶ 23. Parisi’s sentence is within the statutory guidelines. Parisi was convicted of possessing more than thirty grams of methamphetamine, a Schedule II controlled substance, in violation of Mississippi Code Annotated section 41-29-139(c)(1)(E) (Supp.2012). Violating section 41-29-139(c)(l)(E) carries a penalty of imprisonment up to thirty years. Parisi was also found to be a habitual (nonviolent) offender under Mississippi Code Annotated section 99-19-81 (Rev.2007) and a second drug-related offender under Mississippi Code Annotated section 41-29-147 (Rev. 2009). Section 99-19-81 required the trial court to impose the maximum sentence, thirty years. And section 41-29-147 permitted the trial court to impose “up to twice” that amount. So the sixty-year sentence fell with the Legislature’s prescribed guidelines. See Tate v. State, 912 So.2d 919, 933 (¶ 51) (Miss.2005) (finding sixty-year drug-related sentence calculated by applying sections 41-29-147 and 99-19-81 was proper).

¶ 24. Consequently, the sentence raises no inference of gross disproportionality. See id. at 934 (¶ 53) (finding sixty-year drug-related sentence, “[tjhough certainly harsh,” was “not ‘grossly disproportionate’ to [the] crime”). And no Solem analysis was required by the trial court. See, e.g., Wells, 57 So.3d at 52 (¶ 47) (“finding] that a proportionality analysis [was] not required” for a sixty-year enhanced sentenced imposed under Mississippi Code Annotated sections 41-29-139(b) (Supp. 2012), 99-19-81, and 41-29-147).

¶ 25. THE JUDGMENT OF THE SCOTT COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, POSSESSION OF MORE THAN THIRTY GRAMS OF METHAMPHETAMINE, A SCHEDULE II CONTROLLED SUBSTANCE, AND COUNT II, POSSESSION OF LESS THAN THIRTY GRAMS OF MARIJUANA, A SCHEDULE I CONTROLLED SUBSTANCE, AND SENTENCE AS A SECOND DRUG OFFENDER AND HABITUAL OFFENDER OF SIXTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH SUCH SENTENCE NOT TO BE REDUCED OR SUSPENDED AND WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SCOTT COUNTY.

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

      . Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).

      . In Harris, the United States Supreme Court held that "[t]he shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” Harris, 401 U.S. at 226, 91 S.Ct. 643. If a defendant has "voluntarily taken the stand,” he is "under an obligation to speak truthfully and accurately,” and the State is permitted to "utilize the traditional truth-testing devices of the adversary process.” Id. at 225, 91 S.Ct. 643.

      . Schedule II controlled substances are listed in Mississippi Code Annotated section 41-29-115 (Supp.2012).


author: BARNES, J.,

text:
    Jon Kurrie PETERSON a/k/a Jon K. Peterson a/k/a Jon Peterson, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-01504-COA.
    Court of Appeals of Mississippi.
    Nov. 13, 2012.
    Rehearing Denied April 23, 2013.
    Certiorari Denied Aug. 8, 2013.

      Jon Kurrie Peterson, appellant, pro se.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before LEE, C.J., BARNES, and MAXWELL, JJ.
   BARNES, J.,

for the Court:

¶ 1. Jon Peterson was convicted of murder and arson by a Harrison County Circuit Court jury on April 19, 1996. For the murder conviction, Peterson was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC). He was sentenced to three years in MDOC custody for the arson conviction, with his sentences to run consecutively.

¶ 2. On July 8, 2011, Peterson filed a petition for parole or conditional release from prison, claiming that he has been a “model inmate” during his incarceration and that he should be eligible for parole. While the Harrison County Circuit Court commended Peterson on his rehabilitation efforts while in custody, it denied the petition, stating that Mississippi Code Annotated section 47-5-139(l)(a) (Rev.2011) precludes Peterson from parole eligibility. The applicable portion of the statute states:

(1) An inmate shall not be eligible for the earned time allowance if:
(a) The 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 released]

Id. Peterson appeals, arguing these statutory requirements, which make him ineligible for parole, violate his constitutional rights under the Fifth, Eighth, and Fourteenth Amendments of the United States Constitution and the comparative portions of the Mississippi Constitution. Finding no merit to Peterson’s arguments, we affirm the circuit court’s denial of his petition.

DISCUSSION AND ANALYSIS

¶ 3. Although Peterson presents four issues on appeal, all of the issues concern whether Mississippi Code Annotated 47-5-139(l)(a) is discriminatory toward younger inmates and whether the statute violates Peterson’s constitutional rights. Therefore, for clarity purposes, we will condense his arguments into one issue.

¶ 4. Peterson was only twenty-three years old when he was convicted and has served over fifteen years of his sentence in MDOC custody. Peterson argues that section 47-5-139(l)(a), which allows an inmate who has reached sixty-five years of age and who has served fifteen years to be eligible for parole, unfairly requires a younger prisoner to serve a longer sentence than an older prisoner. He claims this disparity in the statute is discriminatory, constitutes cruel and unusual punishment, and violates his rights to due process and equal protection under the law.

¶ 5. “[Pjarole eligibility is a matter of legislative grace, and the grant or denial of parole is entirely at the discretion of the Parole Board.” Rochell v. State, 36 So.3d 479, 482 (¶ 9) (Miss.Ct.App.2010) (quoting Garlotte v. State, 915 So.2d 460, 466 (¶ 19) (Miss.Ct.App.2005)). Therefore, the Harrison County Circuit Court had no authority to grant Peterson parole. However, since Peterson’s petition asserted that the parole statute was unconstitutional, the circuit court had jurisdiction over his claims. See id. (holding that “the [circuit] court may assert jurisdiction over those claims which raise constitutional issues.” (citing Mack v. State, 943 So.2d 73, 76 (¶ 8) (Miss.Ct.App.2006))).

¶ 6. “Prisoners have no constitutionally recognized liberty interest in parole.” Hopson v. Miss. State Parole Bd., 976 So.2d 973, 975 (¶ 6) (Miss.Ct.App.2008) (citing Mack, 943 So.2d at 75 (¶ 6)). The Mississippi Supreme Court has previously addressed the issue submitted by Peterson in Martin v. State, 871 So.2d 693 (Miss.2004). Like Peterson, Sam Martin was sentenced to life imprisonment for murder and claimed that section 47-5-139(l)(a) was unconstitutional since his young age would require him to serve thirty-five years, “whereas, someone who was sentenced at the age of 50 would only have to serve 15 years before being given the opportunity to petition for conditional release.” Martin, 871 So.2d at 702 (¶ 32). Although finding Martin’s argument was not ripe for appeal, the supreme court did conclude: “Section 47-5-139 is not viola-tive of Martin’s due process and equal protection rights by specifying criteria to consider in determining which inmates may or may not be considered for earned time allowance.” Id. at (¶ 33); see also Magee v. State, 914 So.2d 729, 737-38 (¶¶ 21, 22) (Miss.Ct.App.2005) (rejecting defendant’s argument that section 47-5-139 violates his due process and equal protection rights under the Constitution); Knox v. State, 912 So.2d 1004, 1009-10 (¶¶ 25, 26) (Miss.Ct.App.2005) (Prisoner’s claim that the age distinction for parole eligibility in section 47-5-139(l)(a) constitutes “cruel and unusual” punishment “is without merit”).

¶ 7. Our precedent on this issue is clear; the statutory requirements of section 47-5-139(l)(a) do not constitute a violation of Peterson’s constitutional rights. Accordingly, we affirm the circuit court’s denial of Peterson’s petition.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ, CONCUR. ROBERTS, J, CONCURS IN PART AND IN THE RESULT.

      . Peterson's convictions and sentences were affirmed by this Court on direct appeal. See Peterson v. State, 740 So.2d 940 (Miss.Ct.App.1999). Two subsequent petitions for post-conviction relief, one in 2002 and one in 2008, have been denied by the Harrison County Circuit Court. Peterson also filed a motion to vacate judgment, which the circuit court treated as a motion for post-conviction relief and dismissed for lack of jurisdiction since he failed to obtain leave from the Mississippi Supreme Court. We affirmed the circuit court’s dismissal in Peterson v. State, 28 So.3d 667, 669 (¶ 6) (Miss.Ct.App.2009).


author: CARLTON, J.,

text:
    Shawn DOSS a/k/a Shawn Lamont Doss a/k/a Shawn L. Doss, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-01870-COA.
    Court of Appeals of Mississippi.
    Nov. 27, 2012.
    Rehearing Denied April 30, 2013.
    Certiorari Denied Aug. 22, 2013.

      Shawn Doss, appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Shawn Lamont Doss appeals the circuit court’s dismissal of his motion for post-conviction relief (PCR), claiming that the circuit court improperly deviated from the State’s recommended sentence and that Doss’s indictment was improperly amended to charge him as a subsequent drug offender. Finding no error, we affirm.

FACTS

¶ 2. On February 8, 2006, a Lowndes County grand jury indicted Doss for Count I, possession of more than five kilograms of marijuana with the intent to distribute, and Count II, conspiracy to transfer a controlled substance. On December 4, 2007, the State filed a motion to amend the indictment to charge Doss as a subsequent drug offender under Mississippi Code Annotation section 41-29-147 (Rev.2009).

¶ 3. Doss’s counsel negotiated a plea deal with the State, in which the State agreed to recommend a sentence of twenty-four years for Count I and a dismissal of Count II in exchange for Doss’s knowing, voluntary, and intelligent guilty plea. On November 18, 2008, the circuit judge accepted Doss’s guilty plea on Count I, and scheduled a sentencing hearing for November 21, 2008. The circuit court advised Doss to stay out of trouble until the date of the sentencing hearing, and that if he did so, the court would likely accept the State’s recommendation. The circuit court further stressed that Doss must attend the sentencing hearing if he expected to be sentenced in accordance with the State’s recommendation.

¶ 4. On November 21, 2008, Doss failed to attend the sentencing hearing. The circuit judge ordered the bailiff to search for Doss throughout the courthouse. The circuit judge also asked the defense counsel to call Doss’s cell phone in an attempt to reach him. When questioned by the judge, the bail bondsman indicated that after speaking to Doss’s parents, it was her understanding that Doss was “on his way.” The bail bondsman stated that she tried to reach Doss too, but to no avail. After waiting forty minutes, the circuit court proceeded with sentencing.

¶ 5. The circuit judge entered a judgment, sentencing Doss as a subsequent drug offender to fifty years in the custody of the Mississippi Department of Corrections. The circuit judge stated on the record that if Doss appeared prior to the end of term with a valid reason explaining why he missed his sentencing hearing, the circuit court would consider amending the sentence.

¶ 6. On November 16, 2011, Doss filed a PCR motion in the circuit court, which the circuit court dismissed. Doss now appeals to this Court, claiming: (1) the circuit court erred in deviating from the agreed sentencing recommendation; and (2) the circuit court erred in allowing the State to amend Doss’s indictment after Doss pled guilty to reflect his status an a subsequent drug offender.

STANDARD OP REVIEW

¶ 7. In considering the dismissal of a PCR motion, we review the circuit court’s findings of fact for clear error. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

DISCUSSION

I. SENTENCE

¶ 8. Doss argues that the circuit court erred in deviating from the State’s agreed sentencing recommendation. Doss concedes that he was aware that the trial court does not have to accept the State’s recommendation. However, Doss claims that if the recommendation is not accepted, the petitioner must be afforded the opportunity to withdraw his guilty plea. Doss’s claims are in conflict with existing Mississippi jurisprudence and Uniform Rule of Circuit and County Court 8.04(B)(2).

¶ 9. The Mississippi Supreme Court has repeatedly held that a trial judge who did not participate in the plea-bargaining process is not bound by the terms of a plea agreement between the defendant and the State. Callins v. State, 975 So.2d 219, 229 (¶ 23) (Miss.2008); see also Martin v. State, 635 So.2d 1352, 1354 (Miss.1994) (“In order to renege on a deal, you must be a part of the deal.”). Further, as long as the circuit court explains to the defendant that the court is not bound by the State’s recommendation, “it is not error if the trial court does not follow the prosecutor’s sentencing recommendation.” Martin, 635 So.2d at 1355.

¶ 10. Our Court addressed a similar issue in Rhone v. State, 957 So.2d 1018 (Miss.Ct.App.2006). In Rhone, the circuit court advised John Rhone that if he attended the sentencing hearing, the court would accept his guilty plea, as well as the one-and-one-half-year sentence recommended in the plea bargain. Id. at 1020 (¶ 3). The circuit court then informed Rhone of the possible maximum sentence for his charge, and Rhone indicated that he understood. Id. After Rhone failed to appear at his sentencing hearing, the judge sentenced Rhone to thirty years in the custody of the Mississippi Department of Corrections, half of his possible maximum sentence. Id. at (¶ 5). On appeal, this Court affirmed Rhone’s conviction and sentence, explaining “the prosecution did not breach its plea agreement — [Rhone] did [by failing to appear].” Id. at 1022 (¶ 14).

¶ 11. The record reflects no claim by Doss that he entered his plea unknowingly, involuntarily, or unintelligently. Additionally, the record shows that Doss indicated his understanding of the circuit judge’s instructions that the court would not accept the State’s sentencing recommendation if Doss failed to attend the sentencing hearing. The transcript reflects that the circuit judge stressed on the record that if Doss failed to “show up ... all bets are off.” We thus find no error in the circuit court imposing upon Doss a greater sentence than that recommended by the State.

II. AMENDED INDICTMENT

¶ 12. Doss next argues that the circuit court erred in allowing the State to amend his indictment after he pled guilty to reflect his status an a subsequent drug offender. Doss claims that he was unaware of the amendment prior to the day of his guilty-plea hearing.

¶ 13. The record reflects Doss was indicted on February 8, 2006, for possession of marijuana with intent to distribute. The State moved to amend the indictment on December 4, 2007, to reflect Doss’s previous conviction in Oklahoma for possession of a controlled substance with intent to distribute. The State argues that it put Doss on notice of the motion to amend the indictment to include Doss’s status as a subsequent drug offender eleven months prior to Doss entering his guilty plea.

¶ 14. This Court has stated that amendment of an indictment to reflect that the defendant is a subsequent or habitual offender “is allowed so long as ‘the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.’” Wells v. State, 57 So.3d 40, 48 (¶ 27) (Miss.Ct.App.2011) (citing URCCC 7.09). In this case, the record shows no unfair surprise, since the State filed the motion to amend the indictment prior to the entry of Doss’s guilty plea. Amending an indictment to reflect habitual- or subsequent-offender status “only affects sentencing and does not affect the substance of the offense charged”; therefore, we find the amendment to Doss’s indictment failed to affect his possible defenses to his possession charge. Burrell v. State, 726 So.2d 160, 162 (¶ 4) (Miss.1998). We note that Doss offered no evidence during the sentencing hearing contesting the subsequent-drug-offender charge.

f 15. In Wells, 57 So.3d at 48 (¶ 27), this Court held that:

an amendment requested on the day of the trial to add an enhanced penalty was proper where the defendant was apprised of the charge pending against him, was not unfairly surprised, and was afforded a fair opportunity to present his defense.

(quoting Williams v. State, 766 So.2d 815, 816-18 (¶¶ 5-10) (Miss.Ct.App.2000)). Doss’s guilty-plea petition reflects that he was aware that his sentence was subject to enhancement. The plea petition also lists his previous conviction.

¶ 16. After reviewing the record, we find no error in the timing of the amendment. The record reflects the amendment presented no unfair surprise to Doss, and Doss knowingly entered his guilty plea as a subsequent drug offender. This issue is without merit.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, RUSSELL AND FAIR, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . Uniform Circuit and County Court Rule 8.04(B)(2) provides:
      The prosecuting attorney, defendant's attorney, or the defendant acting pro se, may reach an agreement that upon an entry of a plea of guilty to the offense charged or to a lesser or related offense, the attorney for the state may do any of the following:
      a. Move for a dismissal of other charges; or
      b. Make a recommendation to the trial court for a particular sentence, with the understanding that such recommendation or request will not be binding upon the court.

      . John Rhone complied with the plea agreement and arrived for his January 18, 2002 sentencing hearing. Id. at 1020 (¶ 5). At the courthouse, Rhone received a message from his attorney instructing him that the hearing had been rescheduled and to return on February 12, 2002. Id. On February 12, 2002, Rhone failed to appear for the rescheduled sentencing hearing. Id. The circuit court again rescheduled the sentencing hearing for April 22, 2003, at which time the judge sentenced Rhone to half the amount of his possible maximum sentence. Id.


author: FAIR, J.,

text:
    Andrew Lee HAMMOND a/k/a Andrew L. Hammond a/k/a Andrew Hammond a/k/a Drew, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01333-COA.
    Court of Appeals of Mississippi.
    Jan. 22, 2013.
    Rehearing Denied May 21, 2013.
    Certiorari Denied Aug. 22, 2013.

      Joseph A. Fernald Jr., Brookhaven, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Andrew Hammond shot and killed William “Bubba” Thompson after a confrontation at the home of Gena Thompson, Thompson’s daughter. Indicted for murder and convicted of manslaughter, he appeals. Finding no error, we affirm Hammond’s conviction and sentence.

FACTS

¶ 2. In 2009 and 2010, Hammond and Gena were involved in a romantic relationship. This caused problems with Gena’s family because Hammond was married to another woman and had a young daughter. The Thompson family was adamant that Hammond should not see Gena until he was divorced, if at all. Hammond was twenty-one or twenty-two years old, while Gena was twenty or twenty-one.

¶ 3. On the night of November 12, 2009, Bubba Thompson, Gena’s father, and Thompson’s brother, John, confronted Hammond outside of the mobile home where Gena lived. .There were differing accounts of what occurred on that occasion. According to Gena, her father ambushed Hammond and beat him up. Her uncle John admitted he and his brother had waited for Hammond outside the trailer and surprised him, but he contended Hammond had attacked Thompson before the latter got the upper hand. John described the fight as brief and characterized Hammond as angry with Thompson rather than afraid of him.

If 4. Hammond and Gena continued to see each other after the November 2009 incident. According to Gena, Hammond moved in with her — though the evidence is conflicting on this point. Hammond regularly parked his vehicle at a nearby church, where Gena would pick him up and take him the rest of the way to the trailer. On several occasions, Thompson had entered the trailer while Hammond was present. On these occasions, Hammond went into the back bedroom, and Thompson left without incident.

¶ 5. On March 12, 2010, Gena returned home after spending a few days in the hospital to have a stent put into a vessel in her brain. That evening, she and a friend, Allie Douglas, picked Hammond up at the church. They returned to the trailer, and Hammond cooked dinner. The three were preparing to watch a movie when they heard a knock at the door. What happened next was disputed.

¶ 6. According to Gena, she called out for the visitor to identify himself, but no one answered. Gena told Hammond to go to the bedroom, which he did. Gena saw her father’s truck outside, and when she cracked the door, Thompson pushed it all the way open and entered the trailer. Gena instructed her father to leave and threatened to call the police, but Thompson pushed her onto a couch and began shouting for Hammond. Then he started “banging open” doors in the trailer, and when he reached the rear bedroom door and opened it, Hammond shot him once with a .40-caliber Glock pistol. Thompson fell down, got up and went outside, and later died from his injuries. Hammond surrendered to the authorities when they arrived.

¶ 7. Douglas, Gena’s friend, described the incident somewhat differently, though she frequently cited a lack of memory when asked to directly contradict Gena’s testimony. Notably, Douglas testified that Gena let her father into the trailer and that Thompson was no longer shouting when he began looking for Hammond.

¶ 8. The State offered other testimony seeking to show that Thompson, unarmed, was not much of a threat to Hammond. Thompson was forty-six years old, five feet ten inches tall, and weighed 260 pounds; he was said to be weak and in poor health following a liver transplant. Hammond, on the other hand, was twenty-two years old, six feet two inches tall, weighed 200 pounds, and was fit enough to work offshore. Thompson had been drinking before he was shot; his blood alcohol concentration was approximately .05 — somewhat less than the .08 “legal limit” for driving. Thompson’s wife testified that he drank alcohol when he was in pain from the liver transplant. She admitted Thompson did not tell her why he went to Gena’s home on the night of the shooting, but she believed he intended to take away Gena’s car, which her parents owned. They had conditioned her use of the car on her ending the relationship with Hammond.

¶ 9. Hammond was prosecuted for murder. His theory of the case was self-defense, and the jury convicted him of manslaughter. On appeal, Hammond contends the trial court erred in refusing to admit a recording of his 911 call shortly after the shooting. He also argues his conviction was against the overwhelming weight of the evidence.

DISCUSSION

1. The 911 Recording

¶ 10. Hammond contends he should have been allowed to introduce a recording of his 911 call to support his self-defense theory. The 911 call was made shortly after the shooting, and in the recording Hammond explained that Thompson had broken into the house, ignored Hammond’s warning that he had a gun, and was shot when he “jumped” at Hammond. Hammond told the operator he believed John Thompson was also at the trailer, armed, and would kill him for shooting Thompson. Hammond described John as “crazy,” and the operator instructed Hammond to barricade himself in the bedroom until the police arrived (but not to have the gun in his hand when they arrived).

¶ 11. After it rested its case-in-chief, the State made an oral motion in limine to exclude the recording. The State indicated it had recently learned Hammond planned to introduce the 911 tape at trial; Hammond contended he believed the State had planned to introduce it. The State argued the recording was self-serving hearsay and lacked a foundation for admission into evidence. During the argument, the trial judge observed that Hammond, if he intended to testify, might provide a sufficient foundation to admit the tape into evidence. Hammond affirmed his intent to testify in his own defense, and the judge indicated he would reserve a ruling on the motion to exclude the tape until after the facts surrounding its creation were established. At some point thereafter, Hammond changed his mind and decided not to testify, but the issue of the 911 recording never came up again on the record. There was no subsequent attempt to introduce the recording and no final, on-the-record ruling by the court that it would not be admitted.

¶ 12. At best the record shows the trial judge was skeptical of the recording’s admissibility and had indicated he would not admit it into evidence without further proof. Hammond was apparently satisfied with that ruling at the time, and as a result, he neglected to ever make a proffer of the recording and the foundation required to put it into evidence.

¶ 13. “[I]t is the duty of the appellant to present a record of the trial sufficient to show that the error of which he complains on appeal has occurred....” Kolberg v. State, 704 So.2d 1307, 1322 (¶ 74) (Miss.1997) (citation omitted). Because of Hammond’s failure to offer the recording into evidence, we cannot say the trial court excluded it. We find no merit to this issue.

2. Weight of the Evidence

¶ 14. In his remaining issue, Hammond contends the trial court should have granted him a new trial because the jury’s rejection of his self-defense theory was against the overwhelming weight of the evidence. A challenge to the weight of the evidence will be successful only when the verdict “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 (¶ 18) (Miss.2005).

¶ 15. Manslaughter is “[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). Thus it was the State’s burden to prove, beyond a reasonable doubt, that Hammond did not act in necessary self-defense when he shot Thompson. Id; see also Heidel v. State, 587 So.2d 835, 843 (Miss.1991).

¶ 16. Self-defense is defined by statute, in relevant part, as a killing committed “in the lawful defense of one’s own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished” or “in resisting any attempt unlawfully to kill [the defendant] or to commit any felony upon him, or upon or in any dwelling ... or in the immediate premises thereof in which [the defendant] shall be....” Miss.Code Ann. §97-3-15(l)(e)-(f) (Rev.2006). Additionally, the “castle doctrine” provides a presumption of reasonableness under certain circumstances potentially present in this case:

A person who uses defensive force shall be presumed to have reasonably feared imminent death or great bodily harm, or the commission of a felony upon him or another or upon his dwelling ... if the person against whom the defensive force was used[ ] was in the process of unlawfully and forcibly entering, or had unlawfully and forcibly entered, a dwelling ... or the immediate premises thereof or if that person had unlawfully removed or was attempting to unlawfully remove another against the other person’s will from that dwelling ... or the immediate premises thereof and the person who used defensive force knew or had reason to believe that the forcible entry or unlawful and forcible act was occurring or had occurred. This presumption shall not apply if the person against whom defensive force was used has a right to be in or is a lawful resident or owner of the dwelling ... or the immediate premises thereof....

Miss.Code Ann. § 97-3-15(3) (Rev.2006).

¶ 17. The events precipitating the shooting are largely uncontested, but there are significant disputes. This Court is required to accept as true all evidence consistent with the defendant’s guilt, along with any reasonable inferences that might be drawn from the evidence. Young v. State, 891 So.2d 813, 821 (¶ 21) (Miss.2005). Hammond cannot rely on the castle-doctrine presumption because there is conflicting evidence as to whether Gena let her father into the residence. The record also presents conflicting inferences as to whether Thompson posed an immediate danger to Hammond. Thompson was unarmed, and as the State points out, he was in a weakened physical condition. Hammond had also emerged from their prior confrontations without serious injury.

¶ 18. A new trial based on the weight of the evidence should be granted “only in exceptional cases in which the evidence preponderates heavily against the verdict.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005) (citation omitted). And the motion for a new trial is entrusted to the circuit judge, who had a first-hand view of the trial. “[R]eversal is warranted only if the trial court abused its discretion in denying [the] motion for new trial.” Ivy v. State, 949 So.2d 748, 753 (¶ 21) (Miss.2007).

¶ 19. The evidence we have discussed above presents a jury question as to the necessity of the use of deadly force. Given the deference owed to the jury and the trial judge, we cannot say the verdict is against the overwhelming weight of the evidence.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TEN YEARS SUSPENDED AND FIVE YEARS OF PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT. JAMES, J., NOT PARTICIPATING.

      . The recording and its transcript were never offered into evidence at the trial or even marked for identification purposes; however, they were designated for — and appear in — the record on appeal without objection from the State.


author: LEE, C.J.,

text:
    Dennis BROWN a/k/a Dennis Lee Brown, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01457-COA.
    Court of Appeals of Mississippi.
    March 26, 2013.
    Rehearing Denied Aug. 13, 2013.

      George T. Holmes, Jackson, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. On July 4, 2009, six-year-old Far-rah spent the night at her grandmother’s house in Leland, Mississippi. When Far-rah’s mother picked her up the next day, Farrah told her that Dennis Brown had sexually assaulted her and had shown her sexually explicit photographs. Brown is Farrah’s uncle and was living with his mother, Farrah’s grandmother, at the time of the incident. Farrah was examined, and a rape kit was gathered at the Delta Regional Medical Center. The DNA from the rape kit matched Brown. Also, Far-rah was interviewed at the Family Resource Center in Tupelo. During the interview, Farrah stated that Brown had touched her “between her legs” with his hands and his penis and that Brown had shown her pictures of nude adults.

¶ 2. After a jury trial on August 17, 2011, in Washington County Circuit Court, Brown was convicted of fondling under Mississippi Code Annotated section 97-5-23(1) (Rev.2006) and dissemination of sexually oriented material under Mississippi Code Annotated section 97-5-27 (Rev. 2006). Brown was sentenced as a habitual offender to life without parole for the fondling count and six months for the dissemination count. The sentences were to be served concurrently.

¶ 3. Brown now appeals, arguing the trial court erred in: (1) denying his motion to suppress evidence seized from the search of his bedroom; (2) admitting evidence under the tender-years hearsay exception; and (3) sentencing him as a habitual offender.

DISCUSSION

I. MOTION TO SUPPRESS

¶ 4. Kimberly Willis, Brown’s sister, asked Investigator Dondi Gibbs with the Washington County Sheriffs Office to come to the house where the incident occurred. The house belonged to Willis and Brown’s mother, Eva Sylvester. Investigator Gibbs searched Brown’s bedroom in the house and seized several pornographic photographs.

115. Brown argues that his motion to suppress the evidence from the search should have been granted because Willis did not have authority to consent to the search. Brown claims that he was prejudiced by the introduction of the pornographic photographs in that, even though the pornography involved a separate misdemeanor offense, the photographs corroborated the testimony of the State’s witnesses.

¶ 6. The Fourth Amendment of the United States Constitution and Article 3, Section 23 of the Mississippi Constitution guarantee the right to be free from unreasonable searches and seizures. Additionally, “[t]his right is protected by the warrant clauses of both provisions, which require the government to obtain a warrant based on probable cause before a search is conducted.” Gazaway v. State, 708 So.2d 1385, 1387 (¶ 8) (Miss.Ct.App.1998). However, this right is not absolute; certain exceptions to the warrant requirement have been established. “Chief among these exceptions is the one allowing for consent to a search.” Id. at 1388 (¶ 9). Consent to search is not limited to the owner of the property. A third party can give consent to search if that party possesses “common authority, mutual use[,] and joint control over property not in the exclusive control or possession of the defendant and where the defendant had no reasonable expectation of privacy.” Brown v. State, 358 So.2d 1004, 1005 (Miss.1978).

¶ 7. When this Court reviews a motion to suppress, “we must determine whether the trial court’s findings, considering the totality of the circumstances, are supported by substantial credible evidence. Where supported by substantial credible evidence, this Court shall not disturb those findings.” Moore v. State, 933 So.2d 910, 914 (¶ 9) (Miss.2006) (internal citations omitted). And this Court reviews the admission or exclusion of evidence for abuse of discretion. Floyd v. City of Crystal Springs, 749 So.2d 110, 113 (¶ 12) (Miss.1999).

¶ 8. At the hearing on the motion to suppress, Brown stated that his mother had not given Willis consent to search. However, Brown did not offer any evidence that his mother did not consent to the search in his motion to suppress or in his argument at the hearing. In its response to Brown’s motion to suppress, the State asserted that Willis was “the daughter of the home owner[,] and [Investigator] Gibbs was given verbal consent to search the [residence] ... by the owner of the house, Eva Sylvester.” Eva Sylvester was unavailable to testify.

¶ 9. Brown failed to present any credible evidence or argument that consent was not given. The trial court relied on the credible evidence before it and did not abuse its discretion in denying the motion to suppress and admitting the photographs. This issue is without merit.

II. TENDER-YEARS EXCEPTION

¶ 10. Mississippi Rule of Evidence 803(25) establishes an exception to the hearsay rule if the declarant is of tender years. Under the tender-years exception,

A statement made by a child of tender years describing any act of sexual contact performed with or on the child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness: provided, that when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

Brown contends that Farrah’s statements during the interview were hearsay and should not have fallen under the exception, because “reliability was missing from the facts presented.” To support that contention, Brown asserts that the interviewer asked leading questions and that Farrah had possibly been coached.

¶ 11. This Court reviews the trial court’s “admission or exclusion of evidence for abuse of discretion.” Hobgood v. State, 926 So.2d 847, 852 (¶ 11) (Miss.2006). Additionally, [t]here is a rebuttable presumption that a child under the age of twelve is of tender years.” Grimes v. State, 1 So.3d 951, 954 (¶ 9) (Miss.Ct.App.2009).

¶ 12. Once the trial court determines that the child is of tender years, the court must determine if the child’s statements contain “indicia of reliability.” The trial court may look to the Wright factors to determine the reliability of the statements. These factors include:

(1) whether there is an apparent motive on declarant’s part to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; (5) the timing of the declarations; (6) the relationship between the declarant and the witness; (7) the possibility of the declarant’s faulty recollection is remote; (8) certainty that the statements were made; (9) the credibility of the person testifying about the statements; (10) the age or maturity of the declarant; (11) whether suggestive techniques were used in eliciting the statement; and (12) whether the declar-ant’s age, knowledge, and experience make it unlikely that the declarant fabricated.

Grimes, 1 So.3d at 954-55 (¶ 10); see also Idaho v. Wright, 497 U.S. 805, 822, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990).

¶ 13. The trial court addressed each of the Wright factors, and specifically noted that because of Farrah’s young age, as well as the spontaneity and consistency of her statements, her statements were reliable. There is nothing in the record to show that the trial court abused its discretion in admitting Farrah’s statements under the tender-years exception. This issue is without merit.

III. HABITUAL-OFFENDER STATUS

¶ 14. Brown was sentenced as a habitual offender. The record is clear that Brown had two prior convictions arising out of separate charges for which he served at least one year and that one of those convictions was for a violent crime, thereby satisfying the parameters of the violent habitual-offender statute, Mississippi Code Annotated section 99-19-83 (Rev. 2007). These September 11, 2006 prior convictions were for failure to register as a sex offender, for which he was sentenced to two years of post-release supervision, and aggravated assault, for which he was sentenced to five years of post-release supervision. Brown does not take issue with the revocation of his post-release supervision for his aggravated-assault conviction or with this sentence serving as a valid conviction for habitual offender status.

¶ 15. Brown asserts that his sentence should not have been enhanced, because the order revoking his post-release supervision for his failure-to-register-as-a-sex-offender conviction was untimely. According to Brown, the revocation of the post-release supervision occurred on August 3, 2009, which was after the two-year period of suspension ended. Thus, Brown makes the tenuous argument that his revocation was never valid, making his time served invalid, and thereby invalidating one of his prior convictions on which the State relied to prove his habitual-offender status.

¶ 16. On August 19, 2008, roughly one month before the end of his post-release supervision for his failure-to-register-as-a-sex-offender conviction, Brown violated the terms of his post-release supervision and was sentenced to one year in the custody of the Mississippi Department of Corrections (“MDOC”). On June 2, 2009, Brown was released from MDOC with the condition that he would serve one year of post-release supervision. Soon after his release, Brown violated his post-release supervision again, and on August 3, 2009, he was sentenced to one year in the custody of MDOC.

¶ 17. The record is clear that the August 19, 2008 revocation, which Brown makes no mention of in his brief, occurred prior to the expiration of the two-year post-release-supervision period. Thus, the revocation was timely, making the subsequent one year served valid. Additionally, the August 3, 2009 revocation was timely, occurring within months of his release. And the subsequent one year Brown served for the second revocation was also valid. Since both revocations were timely, the time served was valid, and the conviction which the State relied to prove the habitual-offender status was proper. This issue is without merit.

¶ 18. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, FONDLING, AND SENTENCE AS A HABITUAL OFFENDER OF LIFE WITHOUT PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; AND COUNT IV, DISSEMINATING SEXUALLY ORIENTED MATERIAL, AND SENTENCE OF SIX MONTHS, WITH BOTH SENTENCES TO BE SERVED CONCURRENTLY, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT. JAMES, J., NOT PARTICIPATING.

      . The victim’s name has been changed to protect her identity.

      . Brown was convicted in 1987 of attempted rape and was required to register as a sex offender.


author: ISHEE, J.,

text:
    Willie EVANS a/k/a Willie E. Evans, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00907-COA.
    Court of Appeals of Mississippi.
    April 16, 2013.
    Rehearing Denied Aug. 20, 2013.

      George T. Holmes, Jackson, Erin E. Pridgen, attorneys for appellant.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In 2011, Willie E. Evans was convicted in the Bolivar County Circuit Court of fondling a twelve-year-old girl. On appeal, Evans asserts that the circuit court improperly declined to recognize his case as a circumstantial-evidence case. As such, Evans argues that the circuit court’s refusal of a two-theory jury instruction was reversible error. Finding no reversible error, we affirm the circuit court’s judgment.

STATEMENT OF FACTS

¶ 2. On the evening of April 1, 2010, Betty and Willie Evans agreed to babysit Jane Doe and her six-year-old brother, John Doe, while their mother, Antoinette, was at work. The couple lived in the same apartment complex in Cleveland, Mississippi, as Antoinette and the children. Since the Evanses did not have cable, they kept the children in Antoinette’s apartment so everyone could watch television.

¶ 3. After watching a few television shows, the children went to bed. Jane and John shared a bedroom and a bed. Jane testified that Willie put her and John to bed while Betty was asleep on the couch in the living room. Jane stated that after falling asleep, she was awakened by Willie putting his finger in her vagina. Her pajamas had been pulled up to her face and her underwear had been pulled down. Once she became fully awake, she saw Willie walking out of the bedroom.

¶ 4. Jane immediately took a phone from the dresser in the bedroom and locked herself in the bathroom. She proceeded to call her grandmother, Louise, to tell her what had happened. Louise told Jane to open the door and hand the phone to Willie. When Jane opened the door, she found Willie standing in front of the door approximately one foot away. Once Willie answered the phone, Louise had heated words with him regarding the incident. Willie denied any involvement and claimed Jane was making everything up.

¶ 5. A short time later, Jane awakened her brother to let him know their mother would be home soon. Antoinette returned home shortly thereafter and found Betty and Jane crying. Jane told her mother what had happened, and Antoinette told the Evanses to leave. Antoinette took Jane to a local hospital where doctors executed a sexual-assault kit. Although the doctors found no signs of rape, they reported the allegations of sexual abuse to the Cleveland Police Department as they were legally required to do.

¶ 6. Cleveland Police Department Investigator Robert Graham arrived at the hospital and questioned Antoinette and Jane regarding the incident. Willie was soon arrested and charged with fondling. Willie pleaded not guilty to the charge, and a jury trial took place in the circuit court in May 2011. Unfortunately, between the time of Evans’s arrest and his trial, his wife, Betty, had passed away.

¶ 7. Jane, Louise, Antoinette, Investigator Graham, and Evans testified at the trial. After the State had rested, but prior to the defense’s case-in-chief, the State presented its only jury instruction to the circuit court. The defense counsel objected to the State’s instruction on the ground that it did not reflect that Evans’s case was a circumstantial-evidence case. The circuit court overruled the defense counsel’s objection, noting that direct evidence existed in the form of Jane testifying that Evans was the person who fondled her and that she saw him leaving her bedroom immediately after she awakened to the fondling. The defense counsel later stated that due to the circuit court’s ruling that the case was not a circumstantial-evidence case, he would not attempt to introduce a two-theory jury instruction, as is common in circumstantial-evidence cases.

¶ 8. After deliberations, the jury returned a guilty verdict. The circuit court took into, account that Evans had been convicted as a sex offender in another state and sentenced him to fifteen years in the custody of the Mississippi Department of Corrections, with twelve years to serve and credit for time already served, as well

as three years of post-release supervision. Though he was already required to register as a sex offender by virtue of his prior conviction of a sex offense, the circuit judge reiterated that Evans would be required to register as a sex offender due to the instant conviction as well.

¶ 9. Evans now appeals claiming that because this is a circumstantial-evidence case, the circuit court erred by overruling the defense’s objection to the State’s proffered instruction.

DISCUSSION

¶ 10. We give “abuse-of-discretion deference to the trial judge’s decision” with regard to giving or refusing jury instructions. Flowers v. State, 51 So.3d 911, 912 (¶ 5) (Miss.2010). Here, Evans asserts that his case is a circumstantial-evidence case, thus necessitating the giving of a two-theory jury instruction. A two-theory instruction provides that when a juiy has considered facts and circumstances along with all other evidence, and every reasonable theory of innocence has been excluded, the jury must resolve the case in favor of the defendant. See Pitts v. State, 241 So.2d 668, 670 (Miss.1970) (citation omitted).

¶ 11. However, the threshold question is whether the circuit court erred in failing to find Evans’s case was a circumstantial-evidence case. For the purposes of a two-theory instruction, “[a] circumstantial evidence case ... is one in which there is neither an eyewitness nor a confession to the crime.” State v. Rogers, 847 So.2d 858, 863 (¶ 22) (Miss.2003). Here, Jane testified at trial that Evans was the person who fondled her on the night of the incident. On cross-examination, she was asked: “[Y]ou stated that Mr, Evans put his finger in your vagina; is that right?” She responded: “Yes, sir.” She noted that she was awakened by someone touching her vagina and that when she opened her eyes, she saw Evans leaving her bedroom.

¶ 12. While Jane was unable to testify to actually seeing Evans place his finger in her vagina, this does not necessarily make Evans’s case a circumstantial-evidence case. The supreme court has stated:

In one sense practically all evidence is circumstantial evidence. If A sees X shoot Y, the likelihood is that A’s eyes do not actually see and transmit to A’s brain a sight impression of the bullet speeding toward Y. When A testifies[,] he is inferring that X shot Y from the fact that he saw X pull the trigger, “heard” the shot and[,] a split second later[,] ... saw Y fall. The State’s case there is[,] in reality[,] based on circumstantial evidence, but we would be thought silly to so hold.

Keys v. State, 478 So.2d 266, 268 (Miss.1985).

¶ 13. We find this theory analogous to the case at hand. While Jane may not have seen Evans while he was fondling her, she awakened in a dark room to a finger in her vagina and instantaneously thereafter, saw Evans leaving her room. Evans was the only adult male in the bed. He was the only male in the apartment except for Jane’s seven-year-old brother, John, and John testified that he was asleep during the entire incident.

¶ 14. As such, we do not find merit in Evans’s argument that the circuit court judge abused his discretion in refusing a jury instruction reflecting that Evans’s case was a circumstantial-evidence case. This issue is without merit.

¶ 15. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT OF CONVICTION OF FONDLING AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWELVE YEARS TO SERVE AND THREE YEARS SUSPENDED, WITH THREE YEARS OF POST-RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

      . We decline to reveal the identity of child victims in sexual-abuse cases. For the purposes of this opinion, we will refer to the victim as "Jane Doe" and to her younger brother as "John Doe.”