author: PICKETT, Judge.

text:
    STATE of Louisiana v. Randall J. MORAIN.
    No. 08-1546.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.

      James C. Downs, District Attorney-9th JDC, Michael W. Shannon, Assistant District Attorney, Alexandria, LA, for State-Appellee State of Louisiana.
    Mark Owen Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant-Appellant Randall J. Morain.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PICKETT, Judge.

| .FACTS

This court provided the following statement of the case in State v. Morain, 07-1207, pp. 1-2 (La.App. 3 Cir. 4/2/08), 981 So.2d 66, 67:

In this case, the defendant, Randall J. Morain, entered a plea of guilty to the offenses of vehicular homicide, in violation of La.R.S. 14:32.1(A)(1) and (2), and first degree vehicular negligent injuring, in violation of La.R.S. 14:39.2(A)(1) and (2). Thereafter, he was sentenced to twenty-five years for the vehicular homicide offense, the first eight years to be served without the benefit of probation, parole, or suspension of sentence, and five years for the vehicular negligent injury offense, the sentences to run concurrently. Defendant filed a motion to reconsider the vehicular homicide sentence and was subsequently resentenced to twenty years, with the first eight years to be served without benefit of probation, parole, or suspension of sentence. Defendant then appealed the sentence to this court. We held that his sentence was indeterminate and illegally lenient and remanded the matter to the trial court. State v. Morain, 06-710 (La.App. 3 Cir. 11/2/06), 941 So.2d 720.
On remand, the trial court sentenced Defendant on the vehicular homicide charge to twenty years at hard labor, the first eight years to be served without benefit of probation, parole, or suspension of sentence, imposed a fine of $2,000, and ordered him to participate in a court-approved substance abuse program and a court-approved driver improvement program.
Defendant is now before this court on appeal and alleges that the trial court failed to comply with La.Code Crim.P. art. 894.1(C) in sentencing him and that the maximum sentence imposed by the trial court was cruel, unusual, and excessive, in violation of Article I, § 20 of the Louisiana Constitution of 1974. For the following reasons, we vacate the sentence and remand the matter to the trial court for resentencing.

The defendant was again sentenced on September 29, 2008, to serve fifteen years at hard labor, eight years to be served without benefit of parole, probation or suspension of sentence, and to pay a fine of two thousand dollars. The defendant’s counsel made an oral motion for a rehearing, regarding the sentence, which was denied.

[¡¡From this sentence, the defendant timely appeals. His only assignment of error is that his sentence is excessive, urging that he was not the “worst type of offender” and that his sentence is cruel, unusual, and excessive.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there no errors patent.

DISCUSSION

The following recitation of facts were taken from Morain, 941 So.2d at 721:

On May 17, 2004, seventeen-year-old Evan Ammons had a flat tire on Interstate 49 while on his way to work. He called his stepfather, Alberto Hinojosa, and his mother for assistance with changing the tire. Mr. Hinojosa, his wife, and their two children arrived, and Mr. Hinojosa parked their van in front of Evan’s vehicle on the shoulder of the interstate. As Mr. Hinojosa was assisting Evan with changing the tire, the Defendant’s vehicle veered onto the shoulder and struck them. Evan died at the scene of the accident, and Mr. Hino-josa sustained serious injuries. The Defendant’s blood was tested after the accident, and the blood alcohol content was measured at 0.10g percent.

In Morain, 981 So.2d at 69-73, this court discussed the law and legal analysis to be utilized in excessive sentence claims:

In this second assignment of error, Defendant alleges that his sentence is cruel and unusual. Initially, we note that the twenty-year sentence was the maximum at the time of the offense. As Defendant’s only allegation is that his sentence is excessive, we can only evaluate his claim as a bare claim of exces-siveness. Additionally, we note that in this assignment of error, Defendant attacks only his sentence for vehicular homicide.
We have set forth the following standard to be used in reviewing excessive sentence claims:
La. Const. art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity |aof the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-0838 (La.2/1/02), 808 So.2d 331 (alteration in original).

In order to decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, we have held that:

[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-0562 (La.5/30/03), 845 So.2d 1061.

In State v. Whatley, 06-316 (La.App. 3 Cir. 11/2/06), 943 So.2d 601, writ denied, 06-2826 (La.8/31/07), 962 So.2d 424, we discussed the factors that a reviewing court should consider in determining if a trial court abused its discretion in imposing a sentence. In Whatley, citing State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, |4writ denied, 99-0433 (La.6/25/99), 745 So.2d 1183, we annunciated three factors that a reviewing court should take into consideration in abuse of discretion cases: (1) the nature of the crime; (2) the nature and background of the offender; and (3) the sentence imposed for similar crimes by the same court and other courts.

In following the guidelines of Lisotta, the nature of the offense in the instant matter is vehicular homicide, a violation of La.R.S. 14:32.1, which now carries a maximum sentence of thirty years at hard labor, but as we have stated, the maximum sentence was only twenty years at the time of the offense. Unquestionably, the legislature intended to convey the serious nature of the offense by the severity of the punishment at the time of the offense and by substantially increasing the punishment only months after the crime occurred in this case. Certainly, this is a serious crime as was so articulately explained by the trial court in its sentencing of Defendant. Death and serious injury was visited upon a family in their full view. There is no measure of punishment to this defendant that can erase this crime, ease their pain, or comfort this family.

Our review of the second prong of the Lisotta guidelines reflects that Defendant had no criminal history, raised two daughters as a single parent, and served a tour of duty in Vietnam as a member of the armed forces. He had no prior DWI charges or offenses, was employed as a police officer in Baton Rouge for ten-and-a-half years, suffers from post-traumatic stress disorder, severe depression, various health problems, and has a drinking problem. His blood alcoholic content was marginally over the legal limit. Furthermore, Defendant accepted accountability for his conduct and showed great remorse for the consequences of his misconduct. Clearly, Defendant is not the worst type of offender for whom the maximum sentences are reserved.

Finally, we -will address the third Li-sotta factor by reviewing the sentences imposed for similar crimes by our trial courts. It is apparent that a reviewing court should consider sentences imposed by other courts to provide consistency in the punishment for similar crimes for similarly situated offenders. Before addressing other opinions, we are reminded of a seminal sentencing precept: “[mjaximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225.

The State takes the position that the trial court did not abuse its discretion when imposing the maximum sentence and cites two cases in support of their position: State v. Crenshaw, 39,586 (La.App. 2 Cir. 4/6/05), 899 So.2d 751, writ denied, 05-1531 (La.1/27/06), 922 So.2d 544, and State v. Cullipher, 02-390 (La.App. 3 Cir. 10/2/02), 827 So.2d 589. In Crenshaw, our colleagues in the second circuit held that two maximum sentences of twenty years and five years for vehicular negligent injuring, to be served consecutively, were not excessive where |fithe defendant was convicted of two counts of vehicular homicide. The defendant in Crenshaw, while driving intoxicated, killed two persons and injured another, caused a large amount of economic loss, had a blood alcohol content almost three times the legal limit, showed a lack of remorse after the accident, was driving at speeds of eighty miles per hour on city streets, and had three prior DWI convictions.

In Cullipher, we held that a fifteen-year-sentence with five years suspended (twenty years was the maximum sentence at the time of the offense) for vehicular homicide was not excessive. Cullipher had a blood alcohol content almost twice the legal limit and had a previous DWI conviction. Furthermore, on the day in question, Cullipher began drinking at 3:30 in the afternoon and continued to do so into the evening when he went to a local bar and drank to the point of becoming ill. His wife attempted to bring him home, but he refused her offer.

Clearly, Crenshaw and Cullipher are distinguishable from the case at bar. Both of the defendants in those cases were much more serious offenders than Defendant herein. In the instant matter, Defendant’s blood alcohol content was just slightly over the legal limit, he showed remorse for the consequences of his conduct, had no prior DWI convictions, and had not been involved in any other criminal activity. Furthermore, in Cullipher, even in light of his past conduct and the gravity of the vehicular homicide offense, he did not receive the maximum sentence of twenty years.

One of the cases cited by Defendant in support of his proposition that his sentence is excessive is State v. Blackmon, 99-391 (La.App. 3 Cir. 11/3/99), 748 So.2d 50, writ denied, 99-3328 (La.4/28/00), 760 So.2d 1174, where this court held that a fifteen-year-sentence (the maximum sentence at the time of the offense in that case) for vehicular homicide was not excessive based on the facts of the case. In Blackmon, the defendant had a blood alcohol content twice the legal limit at the time of the offense and was involved in two separate accidents while intoxicated, one accident was a hit-and-run and the other resulted in a fatality. He was also driving with his girlfriend and two small unrestrained children, had a previous DWI conviction, and received the benefits of a plea agreement where other charges related to driving while intoxicated were not pursued by the District Attorney.

Another case cited by Defendant is State v. Yates, 574 So.2d 566 (La.App. 3 Cir.), writ denied, 578 So.2d 131 (La.1991), again where this court held that two consecutive five-year sentences (the maximum sentence at that time) for two counts of vehicular homicide were not excessive based on the facts of the case. In Yates, the defendant operated a vehicle while intoxicated, had a head-on collision with another vehicle carrying four persons, of which two died as a result of the accident, had Rtwo prior DWI convictions, showed no remorse for his conduct, and continued to drink on a daily basis after the accident.

Once again we are reminded of two key aspects of sentencing: (1) maximum sentences are reserved for the most serious offenses and offenders, and (2) that there should be some relative sense of consistency when imposing maximum sentences. With that in mind, we will review several other cases involving vehicular homicide. In State v. Guillory, 93-1031 (La.App. 3 Cir. 4/27/94), 640 So.2d 427, writ denied, 94-1380 (La.9/30/94), 642 So.2d 869, this court held that a fifteen-year-sentence (the maximum sentence for vehicular homicide at the time of the offense) was not excessive where the defendant pled guilty to three counts of vehicular homicide and the sentences were ordered to be served concurrently. With a blood alcohol content almost three times the legal limit at the time of the offense, the defendant operated a vehicle that ultimately collided with a second vehicle causing the death of three persons and seriously injuring a fourth. Id. Additionally, the defendant in Guillory had one prior felony conviction and three misdemeanor convictions and on the night of the accident, after drinking in excess, was urged twice by others not to drive.

On the other end of the spectrum, in State v. Gibson, 97-108 (La.App. 3 Cir. 4/30/97), 693 So.2d 286, we held that a nine-year sentence for vehicular homicide was not excessive based on the circumstances of that case. Testimony was adduced at trial in Gibson that the defendant had a blood alcohol level almost twice the legal limit at the time; she had been drinking a great part of the day; was warned by her father, a law enforcement officer, that she should not drink and drive; she showed little remorse for her conduct after the accident; and pled guilty to public drunkenness while awaiting trial. At the time Gibson was sentenced, the maximum offense for vehicular homicide was fifteen years. She received a sentence of nine years, which is just over half of the maximum sentence. A case worth noting is State v. Trahan, 93-1116 (La.App. 1 Cir. 5/20/94), 637 So.2d 694, which was cited within Gibson. That case discussed the sentence of a first-time felony offender, without a criminal record, who was convicted of three counts of vehicular homicide and received three, ten-year sentences to be served concurrently. It was determined at trial that Tra-han had a blood alcohol content of .10% or greater at the time of the accident, he showed little remorse for his conduct after the accident, and, while awaiting trial, he was observed driving after having several drinks at a bar. The court in Trahan concluded that based on the circumstances of his case and his conduct subsequent to the accident, Tra-han’s sentence was not excessive.

Finally, in State v. Adair, 04-120 (La.App. 5 Cir. 5/26/04), 875 So.2d 972, the appellate court held that a ten-year sentence for vehicular homicide was not excessive. In Adair, the defendant operated a vehicle |7while his blood alcohol content was more than twice the legal limit; had a previous criminal record, including a DWI conviction and an aggravated assault conviction; had been warned previously by family members that he should not drink and drive; and failed to accept responsibility for the accident until after he was taken to the hospital after the accident. The ten-year sentence that Adair received was half of the maximum that could have been imposed at that time.

While this is a tragic and unforgivable accident, based on the foregoing analysis where offenders received maximum sentences, Defendant’s conduct and offense contrast notably from the others. Accordingly, we find that Defendant was not the worst type of offender for whom maximum sentences are typically reserved. See State v. Runyon, 05-36 (La.App 3 Cir. 11/2/05), 916 So.2d 407, units denied, 06-1348 (La.9/1/06), 936 So.2d 207, 06-0667 (La.11/17/06), 942 So.2d 526, where this court vacated and remanded for resentencing a case in which the defendant had received a maximum sentence, where the court deemed his culpability in the crime was not on the same level as his co-defendant, who also received a maximum sentence. See also, State v. Whatley, 867 So.2d 955, 959, where this court vacated and remanded for resentencing, stating:

The state has not cited any indecent behavior cases comparable to the defendant’s where the maximum sentence was imposed. Considering only a bare claim of excessiveness, and without considering the merits of the specific assignments of error, we still conclude that, based on the record before us, the evidence does not establish that the defendant is one of those worst offenders upon whom the maximum penalty should be imposed.

At the time of the accident, Louisiana Revised Statutes 14:32.1(B), provided:

Whoever commits the crime of vehicular homicide shall be fined not less than two thousand dollars nor more than fifteen thousand dollars and shall be imprisoned with or without hard labor for not less than two years nor more than twenty years. At least one year of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. The court shall require the offender to participate in a court-approved substance abuse program or a court-approved driver improvement program, or both. All driver improvement courses required under this Section shall include instruction on railroad grade crossing safety.

On remand, the trial judge, in imposing sentence, stated:

Okay. And Mr. Morain had previously filed a Motion to Invoke Supervisory Authority with the Third Circuit, that was returned, so I will [ «file his copy that he sent me into the record as, ah, Defendant-1, so that that’ll [sic] be in the record too. Okay. On, on, ah, May 17, 2004, seventeen year old Evan Am, Ammons had a flat tire on Interstate 49 while on his way to work. He called his Stepfather and his Mother for assistance in changing the tire. Mr. Himojosa, his wife, and their two children arrived at the scene. Mr. Himojosa parked their van in front of Evan’s vehicle on the shoulder of the Interstate, and began assisting Evan in changing the tire. Suddenly and without warning the vehicle ri [sic], driven by Randall Morain veered into the shoulder and struck them. Evan died at the scene; Mr. Himojosa suffered serious injuries. Everything that occurred, occurred in the presence of Evan’s family. Alp Mr. Mo-rain’s blood was tested after the acci [sic], accident, and his blood alcohol content was over the legal limit. Considering the factors set forth in Article 894.1, I have considered the mitigating effect of the prior military service; ten and a half years as a police officer with the Baton Rouge City Police, both as a uniform officer and then as a detective in the homicide, in homicide division. I’ve also considered you worked at various other security positions in law enforcement capacities, in addition I’ve considered the mitigating factors of the post traumatic stress disorver (phonetic), disorder, severe depression, continuing substance abuse and other various health problems you’ve suffered. Ah, as part of the analysis I’ve also had to consider the aggravating factors. You continued to drive in the face of a known alcohol problem. Almost the entire family was present when you killed Evan, single-handedly destroyed a family and friend, ah, circle of friends. You’ve destroyed your family. There are terrible consequences. You choose to accept that risk. Certainly based upon your life experience you had to know the consequences of your decision to drink and drive. Ah, I’ve gone through all the other factors; not all of ‘em apply. I, I never ... I don’t know where the Third Circuit got the remorseful behavior; I’ve never witnessed the victim, ah, the Defendant showing any remorse. I did consider the fact that he has no history of a prior delinquency or criminal activity. I did consider the, whether or not the imprisonment of the Defendant would entail an excessive hardship to him or his dependents. The Legislature has raised the maximum sentence in this case to thirty years to reflect the seriousness of the crime. Ah, considered that. Considered the victim impact statements, testimony of the friends and family, and the reviewing factors as set forth in the Third Circuit decision. Based upon that analysis, I sentence you to fifteen years at hard labor, eight years to be served without benefit of parole, probation or suspension of sentence. I fine you Two thousand dollars and order you to participate in a Court approved substance abuse program, and a Court approved driver improvement program. You have two years to apply for post conviction relief and thirty days to appeal this sentence. Thank you.

| aThe defendant, in brief, argues that his sentence is unconstitutionally excessive: (1) under the facts of the case, the fifteen-year sentence is excessive; and (2) the imposition of a sentence of eight years without benefit of probation, parole or suspension of sentence is excessive. In support of his argument, he cites the cases discussed by the court in Morain, 981 So.2d 66.

The defendant also cites State v. Spencer, 00-1335 (La.App. 3 Cir. 2/28/01), 781 So.2d 780 and State v. Manuel, 98-79 (La.App. 3 Cir. 10/28/98), 722 So.2d 31, writ denied, 01-3031 (La.9/20/02), 825 So.2d 1165. These cases are cited for the proposition that a sentence not individualized to the defendant is not in compliance with La.Code Crim.P. art. 894.1.

The guiding principles are: (1) does the sentence shock the sense of justice or make no measurable contribution to acceptable penal goals; (2) the trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion; and (3) did the trial court abuse its broad sentencing discretion, not whether another sentence might have been more appropriate. Barling, 779 So.2d 1035.

In his ruling, the trial judge noted consideration of the increase by ten years of the maximum sentence, in La.R.S. 14:32.1, from that in place at the time of the accident. This court in Morain, 981 So.2d 66, noted this same factor as evidence of the legislature’s intent to convey the serious nature of the offense, noting the severity of the punishment at the time of the offense and the substantial increase of the punishment only months after the crime occurred in this case.

Additionally, the trial court specifically found that the defendant had not shown any remorse for the crime. He stated that he had never observed the defendant show |inany remorse. He did consider the mitigating factors noted by this court in Mo-rain, 981 So.2d 66. ,

As noted in prior consideration by this court, jurisprudence setting sentences in similar cases offers widely disparate sentences being assessed for the same crime. In the instant case, the question of whether the instant sentence is deemed to “shock the sense of justice or make no measurable contribution to acceptable penal goals,” must be answered in the negative.

The sentence was structured by the trial judge to fit the facts as determined by the court. The sentence cannot be deemed to be so “grossly disproportionate to the severity of the crime” as to be shocking.

The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. As the trial court “has wide discretion in the imposition of sentence within the statutory limits,” it cannot be said that the court manifestly abused its discretion.

CONCLUSION

The trial court did not abuse its discretion in imposing the sentence assessed herein. The sentence is be affirmed.

AFFIRMED.


source: Caselaw Access Project

author: PICKETT, J.

license: Public Domain

text:
    Kenneth Wayne JACKSON v. BROOKSHIRE GROCERY COMPANY.
    No. 09-147.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.

      David A. Hughes, Hughes & LaFleur, Alexandria, LA, for Defendant/Appellant, Brookshire Grocery Company.
    Mark F. Vilar, Aaron L. Green, Vilar & Elliott, Alexandria, LA, for PlaintifflAppel-lee, Kenneth Wayne Jackson.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PICKETT, J.

11The defendant, Brookshire Grocery Company, d/b/a/ Super One Foods, appeals a judgment of the trial court awarding the plaintiff, Kenneth Wayne Jackson, $5,000.00 in general damages and $1,282.67 in medicals, plus interest and costs, for injuries he sustained when several cases of food fell on him as he shopped in the store. We affirm the judgment of the trial court.

FACTS

This suit arises as the result of an injury sustained by the plaintiff, Kenneth Wayne Jackson, on March 9, 2007, when several cases of merchandise fell on him as he shopped at Super One Foods in Alexandria, Louisiana. The products in this section of Super One are displayed for purchase similar to products stored in a warehouse, in case lots. Cases are stacked atop one another with the faces cut off, revealing the contents. Some merchandise is displayed in cases at floor level, while additional merchandise is displayed in cases on shelving approximately six feet above the ground.

The plaintiff was reaching for an item approximately six feet above floor level, in a case with the front cut out. As the plaintiff attempted retrieve a box of “chicken helper” from that case, several other cases fell on him, injuring his left arm. The impact caused a “tennis-ball” sized hematoma and a lump in his left forearm.

The plaintiff attempted to continue with his shopping, but shortly after the accident a lump developed in his arm, accompanied by intense pain. Because of a pre-existing heart condition, the plaintiff became concerned and summoned an ambulance to transport him to Christus St. Francis Cabrini Hospital. The plaintiff was diagnosed with a contusion of the left forearm; he was treated and released with ^Instructions to follow-up with his primary care physician, if needed. Because he was still experiencing pain about one week later, he consulted his family physician, Dr. Alejandro Perez. Dr. Perez noted a one-inch in diameter knot surrounded by bluish-green discoloration on the ulnar aspect of the left forearm. The doctor noted that the area was not warm to the touch, indicating the absence of an infection, and concluded that the arm demonstrated what he described as the normal “process after the trauma.”

On appeal the defendant argues that the plaintiff failed to prove that an unreasonably dangerous condition caused the accident, and that the general damage award was excessive for what was “at most, a three (3) week injury.”

LAW AND DISCUSSION

Both parties, in their argument before the trial court, and the trial court in its reasons for judgment, cite Davis v. Wal-Mart Stores, Inc., 00-445 (La.11/28/00), 774 So.2d 84, to support their positions. In Davis, 774 So.2d at 89-90, our supreme court set out the law applicable to “falling merchandise” cases:

The applicable statute as to liability in this case is La. R.S. 9:2800.6 which governs negligence claims brought against a merchant, such as Sam’s. La. R.S. 9:2800.6 reads, in pertinent part:
(A) A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
In a “falling merchandise” case under R.S. 9:2800.6(A), as in the present case, the standard is that the merchant must use reasonable care to keep its aisles, passageways and floors in a reasonably safe condition and free of hazards which may cause injury. Further, a plaintiff who is injured by falling merchandise must prove, even by circumstantial evidence, that a premise hazard existed. [Smith v. Toys “R” Us, Inc., et al., 98-2085__|3(La.11/30/99), 754 So.2d 209.] Once a plaintiff proves a prima facie premise hazard, the defendant has the burden to exculpate itself from fault by showing that it used reasonable care to avoid such hazards by means such as periodic clean up and inspection procedures. Id.
To prevail in a falling merchandise case, the customer must demonstrate that (1) he or she did not cause the merchandise to fall, (2) that another customer in the aisle at that moment did not cause the merchandise to fall, and (3) that the merchant’s negligence was the cause of the accident: the customer must show that either a store employee or another customer placed the mer-ehandise in an unsafe position on the shelf or otherwise caused the merchandise to be in such a precarious position that eventually, it does fall. Only when the customer has negated the first two possibilities and demonstrated the last will he or she have proved the existence of an “unreasonably dangerous” condition on the merchant’s premises. Smith v. Toys “R” Us, Inc., et al., supra.
Under Smith, supra, though evidence of adequate inspection and clean up procedures may yet be part of the merchant’s burden to disprove negligence, evidence of the opposite is certainly relevant as part of the customer’s burden to prove negligence: plaintiff customer will carry his or her burden if he or she can make a prima facie showing that inadequate or neglected inspection and clean up procedures left merchandise in such an unstable or precarious position that it falls from its stacked or displayed position to cause injuries to him or her. Id., at p. 5, 754 So.2d at 212.

In its reason for judgment the trial court stated:

The ultimate fact that must be decided by the court is whether the plaintiff caused the item to fall. If the court rules that any time a customer reaches for a product and another product falls, the customer caused the accident, it would seem to remove any inquiry as to causation.

We agree.

In this case, chicken helper and other items were stacked from ground level to the bottom of a shelf which was established to be six feet above the floor. The plaintiff selected a box from the first earton stacked on the shelf. When he pulled the box of chicken helper from the case on the shelf, several cases of chicken helper stacked above the bottom case fell down striking him. As the plaintiff reached for the |4box he had selected, the defendant’s produce manager, Laverne Clark, and another employee, identified only as Mr. Battistelli, were working some distance down the isle. Mr. Battistelli observed the plaintiffs actions and shouted for the plaintiff to “stop” or “look out.” Before the plaintiff could respond, the higher case had already fallen.

In a falling merchandise case, as in any other case involving factual determinations by the trial court “[t]he issue for the reviewing court is not whether the trier of fact was wrong, but whether the factfin-der’s conclusions were reasonable under the evidence presented.” Smith, 754 So.2d at 214. Under the facts presented in this case, we find the fact-finder’s conclusions were reasonable. It is obvious that the plaintiff had no idea that several cases of merchandise would come tumbling down when he made his selection. Also, it appears that Mr. Battistelli recognized that a dangerous condition existed when he shouted his warning, i.e., that the cases of chicken helper had been placed in an unsafe position on the shelf or in such a precarious position that they eventually fell.

The standard of appellate review of a general damage award was set out by our supreme court in Andrus v. State Farm Mutual Automobile Insurance Co., 95-801, p. 8 (La.3/22/96), 670 So.2d 1206, 1210, wherein the court stated:

In appellate review of general damage awards, the court must accord much discretion to the trial court judge or jury. Reck v. Stevens, 373 So.2d 498 (La.1979). The role of an appellate court in reviewing awards of general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trial court. Id. Only if the reviewing court determines that the trial court has abused its “much discretion” may it refer to prior awards in similar cases and then only to determine the highest or lowest point of an award within that discretion. Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976).
|sBecause discretion vested in the trial court is “great,” and even vast, an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993). Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Id.

Although the award in this case is generous, we cannot say it is “beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances.” Id.

Accordingly, for the reasons stated, the judgment of the trial court is affirmed. All costs of this appeal are assessed against the defendant, Brookshire Grocery Company, d/b/a/ Super One Foods.

AFFIRMED.


author: SULLIVAN, Judge.

text:
    Jincy Lynn RYDER, et al. v. Dane DARBY, et al.
    No. 09-122.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.

      David C. Laborde, Bradley G. Frizzell, The LaBorde Law Firm, Lafayette, Louisiana, for Plaintiffs/Appellants, Jincy Lynn Ryder, Lisa Guidry.
    Richard J. Petre, Jr., Onebane Law Firm, Lafayette, Louisiana, for Defendant/Appellee, Colony Insurance Company.
    Byron A. Richie, Richie, Richie & Ob-erle, L.L.P., Shreveport, Louisiana, for Defendant Appellee, Dane Darby.
    Charles C. Garrison, Caffery, Oubre, Campbell & Garrison, New Iberia, Louisiana, for Defendant/Appellee, Louisiana Farm Bureau Casualty Insurance Company.
    Joseph P. Hebert, Liskow & Lewis, Lafayette, Louisiana, for Defendant/Appellee, Smoker Friendly of Southern Louisiana, LLC.
    W. Glenn Soileau, Attorney at Law, Breaux Bridge, Louisiana, for Plaintiffs/Appellees, Elizabeth Stelly (in consolidated case), Frederick Stelly (in consolidated case).
    Michael G. Gee, Porteous, Hainkel and Johnson, L.L.P., Thibodaux, Louisiana, for Defendants/Appellees, Mr. & Mrs. Charles Foster.
    Leah B. Guilbeau, Attorney at Law, Lafayette, Louisiana, for Defendant/Appellee, State Farm Mutual Auto Insurance Company.
    James P. Doherty, Frederick Law Firm, Lafayette, Louisiana, for Defendants/Ap-pellees, Kristen Renee Olivier Imperial Fire and Casualty Insurance Company.
    John Michael Morrow, Morrow, Gates & Morrow, Opelousas, Louisiana, for Defendant/Appellee, Louisiana State Farm.
    Jill McGee, In Proper Person, Breaux Bridge, Louisiana, Plaintiff/Appellee.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
   SULLIVAN, Judge.

| ¶ Plaintiffs, Jincy Ryder and her mother, Lisa Guidry, appeal the trial court’s grant of summary judgment in favor of defendant, Colony Insurance Company (Colony), and the resulting dismissal of their claims against it. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Ryder was injured on August 20, 2005, when the driver of a vehicle in which she and several of her friends was riding ran a stop sign, entered a ditch, and struck an embankment off of Louisiana Highway 347 in St. Martin Parish. The driver of the vehicle, Dane Darby, was twenty years old on the date of the accident. As a result of the accident, Ryder sustained severe facial and head injuries and had to undergo multiple reconstructive surgeries.

A petition for damages was filed by Ryder and Guidry on January 27, 2006. Therein, plaintiffs alleged that Darby was intoxicated at the time of the accident. They claimed that early in the evening of the accident, Darby had purchased vodka and other alcoholic beverages through a drive-through window at D & M Leger Holding, Inc. d/b/a Smoker Friendly of Henderson (Smoker Friendly), which he consumed and distributed to the passengers in the vehicle. Thereafter, Darby drove to the home of Mr. and Mrs. Charles Foster, where a party was being hosted by the Fosters’ minor son. According to the petition, Darby and his passengers were served alcohol at the party. The accident occurred after Darby and his passengers left the party. Included in the named defendants were Smoker Friendly and its alleged pliability insurer, Colony. Plaintiffs asserted that a legal cause of the accident was Smoker Friendly’s negligence in having served alcoholic beverages to Darby when it knew or should have known that he was a minor.

Colony filed a motion for summary judgment seeking dismissal from the suit based on the “liquor liability exclusion” contained in the policy that it had issued to Smoker Friendly. Plaintiffs opposed the motion, arguing that an amending endorsement attached to the policy expanded the coverage afforded under the policy. Colony then filed a reply memorandum wherein it argued that the amending endorsement simply imposed another condition that needed to be met for coverage to attach, and that even if all four of the conditions were met, the policy did not provide coverage if any of the exclusions applied. Following a hearing, the trial court granted Colony’s motion for summary judgment and dismissed plaintiffs’ claims against it with prejudice at plaintiffs’ cost. Plaintiffs now appeal, asserting that the trial court erred in granting summary judgment in favor of Colony because there is coverage under the Colony insurance policy.

DISCUSSION

Appellate courts review summary judgments de novo, using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730. A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). Summary judgment is | ^favored and shall be construed “to secure the just, speedy, and inexpensive determination of every action.... ” La.Code Civ.P. art. 966(A)(2).

The supreme court set out the framework for interpreting insurance coverage questions in Succession of Fannaly v. Lafayette Insurance Co., 01-1144, 01-1343, 01-1355, 01-1360, pp. 3-4 (La.1/15/02), 805 So.2d 1134, 1137 (emphasis added) (citations omitted):

An insurance policy is an aleatory, nominate contract subject to the general rules of contract interpretation as set forth in our civil code. The extent of coverage under an insurance contract is dependent on the common intent of the insured and insurer. Thus, when interpreting an insurance contract, courts must attempt to discern the common intent of the insured and insurer.
In ascertaining the common intent of the insured and insurer, courts begin their analysis with a review of the words in the insurance contract. Words in an insurance contract must be ascribed their generally prevailing meaning, unless the words have acquired a technical meaning, in which case the words must be ascribed their technical meaning. Moreover, an insurance contract is construed as a whole and each provision in the contract must be interpreted in light of the other provisions. One provision of the contract should not be construed separately at the expense of disregarding other provisions.

In Jessop v. City of Alexandria, 03-1500, p. 2 (La.App. 8 Cir 3/31/04), 871 So.2d 1140, 1142-43, writ denied, 04-1529 (La.10/1/04), 883 So.2d 991 (quoting Miller v. Superior Shipyard and Fabrication, Inc., 01-2907, p. 4 (La.App. 1 Cir. 8/20/03), 859 So.2d 159, 162, writ denied, 03-2643 (La.12/12/03), 860 So.2d 1159 (citations omitted)), this court noted that:

Interpretation of an insurance policy is usually a legal question that can be properly resolved by means of a motion for summary judgment. When determining whether a policy affords coverage for an incident, the insured bears the burden of proving the incident falls within the policy’s terms. Summary judgment declaring a lack .of coverage under an insurance policy may be rendered only if there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded.

|4In Boudreaux v. Siarc, Inc., 97-1067, p. 2 (La.App. 5 Cir. 4/15/98), 714 So.2d 49, 50, writ denied, 98-1556 (La.9/18/98), 724 So.2d 744, the court noted:

State law protects merchants from liability for selling alcohol to persons over the legal age to purchase it. La. R.S. 9:2800.1 provides for limitation of liability for loss connected with sale, serving, or furnishing of alcoholic beverages to a person over the age for the lawful purchase thereof. The legislative intent is to make clear that “the consumption of intoxicating beverages, rather than the sale or serving or furnishing of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or upon another person.” La. R.S. 9:2800.1(A).
That law does not protect persons selling alcohol to minors, however. See Hopkins v. Sovereign Fire & Cas. Ins. Co., 626 So.2d 880 (La.App. 3 Cir.1993), writ denied 93-2958 (La.3/11/94), 634 So.2d 402, and 94-0154 (La.3/11/94), 634 So.2d 390.

The Colony Policy

The policy issued by Colony to Smoker Friendly was a commercial general liability and commercial property policy. The Colony policy provided as follows:

SECTION 1 COVERAGES
COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated - to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. We will have the right and duty to defend the insured against any “suit” seeking those damages. However, we will have no duty to defend the insured against any “suit” seeking damages for “bodily injury” or “property damage” to which this insurance does not apply. We may, at our discretion, investigate any “occurrence” and settle any claim or “suit” that may result.
b. This insurance applies to “bodily injury” and “property damage” only if:
| s(l) The “bodily injury” or “property damage” is caused by an “occurrence” that takes place in the “coverage territory”;
(2) The “bodily injury” or “property damage” occurs during the policy period; and
(3) Prior to the policy period, no insured listed under Paragraph 1. of Section II — Who is An Insured and no “employee” authorized by you to give or receive notice of an “occurrence” or claim, knew that the “bodily injury” or “property damage” had occurred, in whole or in part. If such a listed insured or authorized “employee” knew, prior to the policy period, that the “bodily injury” or “property damage” occurred, then any continuation, change or resumption of such “bodily injury” or “property damage” during or after the policy period will be deemed to have been known prior to the policy period.

An amending endorsement attached to the policy states, in pertinent part:

This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
BUSINESS DESCRIPTION: TOBACCO PRODUCTS STORES
A SECTION I — COVERAGES, COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY, 1. Insuring Agreement, b. is amended and the following is added:
(4)The “bodily injury” or “property damage” is caused by or results from the business described in the Schedule.

The “Insuring Agreement” is followed by an “Exclusions” section which provides that:

This insurance does not apply to:
|fic. Liquor Liability
“Bodily injury” or “property damage” for which any insured may be held liable by reason of:
(1) Causing or contributing to the intoxication of any person;
(2) The furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or
(3) Any statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverages.
This exclusion applies only if you are in the business of manufacturing, distributing, selling, serving or furnishing alcoholic beverages.

Did the Colony policy provide coverage for plaintiffs’ damages?

In their appellant brief, the plaintiffs admit that “[gjiven that [liquor liability] exclusion in isolation, the District Court would have been correct in granting summary judgment.” Plaintiffs further acknowledge that “Louisiana courts have held that such a broad exclusion precluded coverage for any liability for causing or contributing to the intoxication of any person or for furnishing alcoholic beverages to persons under the legal drinking age.” Nevertheless, plaintiffs submit that the amending endorsement attached to the policy extends coverage to activities associated with the insured’s business description, that of a tobacco products store. Plaintiffs argue that “[w]ere the endorse-merit not intended to extend coverage as such, its inclusion in the policy would be useless and redundant.” Attached to plaintiffs’ opposition to summary judgment is an affidavit from plaintiff, Lisa Guidry, a resident of Henderson who is familiar with the Smoker Friendly store where Darby was allegedly able to purchase alcohol in this case. Therein, Guidry stated that since the time it began doing business at that location Smoker Friendly has sold alcohol | .¡.products. Because the sale of alcohol fell within Smoker Friendly’s business description, plaintiffs argue that the Colony policy should provide coverage for their injuries because those injuries arose out of Smoker Friendly’s sale of alcohol.

For purposes of its summary judgment motion; Smoker Friendly did not deny that it was in the business of selling alcohol, nor did it deny that one of its employees sold alcohol to Darby on the date in question. Rather, it argues that coverage is not afforded under the policy because of the liquor liability exclusion. Smoker Friendly contends that “plaintiffs’ interpretation of the policy would result in coverage for all damages resulting from the described business of [a] tobacco products store, would write out of the policy every exclusion, and would lead to absurd results.” Smoker Friendly argues that such an interpretation ignores the architecture of the policy, the intent of the parties, and the general rules for interpreting insurance policies. It further submits that the purpose of the endorsement was to limit coverage, not to enlarge coverage to include any damages resulting from the business of operating a tobacco products store.

The trial court ruled that the Colony policy did not provide coverage for plaintiffs’ damages. We have performed a de novo review of the evidence submitted in conjunction with the insurance coverage question at issue herein and, we, too, find that summary judgment was properly granted in favor of Colony because it succeeded in pointing out that Plaintiffs would not be able to meet their burden of proof at trial with regard to coverage under the Colony policy for any liability on the part of Smoker Friendly. Under Plaintiffs’ theory, the exclusions listed in the Colony policy after the coverage section would be completely ignored. Plaintiffs’ interpretation of | sthe policy is simply unreasonable and would lead to absurd results that were not contemplated by Smoker Friendly and Colony when the policy was confected.

DECREE

For the foregoing reasons, we affirm the October 8, 2007 judgment of the trial court granting summary judgment in favor of Colony Insurance Company and dismissing the claims against it by plaintiffs, Jincy Ryder and Lisa Guidry, with prejudice. All costs of this appeal are assessed against plaintiffs.

AFFIRMED.

      . Although Ms. Ryder was only sixteen years alleged that she was fully emancipated, old at the time of the accident, the petition

      . Although the petition named ABC Insurance Company as the insurer of Smoker Friendly, plaintiffs later amended to substitute Colony as the correct insurer of that entity.


author: ROBERTS, J.,

text:
    Roy Roderick RILEY, Jr. a/k/a Roy Rogers Riley, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KM-00953-COA.
    Court of Appeals of Mississippi.
    May 27, 2008.
    Rehearing Denied Oct. 21, 2008.
    Certiorari Granted Feb. 12, 2009.
    Certiorari Dismissed as Improvidently Granted June 25, 2009.
    W. Daniel Hinchcliff, Gay L. Polk-Pay-ton, attorneys for appellant.
    Office of the Attorney General, by Deirdre McCrory, attorney for appellee.
    Before LEE, P.J., IRVING and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. Roy Roderick Riley, Jr., was found sitting' in Pamela Boyte’s automobile at 9:30 p.m. on March 21, 2006. He was subsequently arrested and indicted on the charge of burglary of an automobile. Following his trial in the Circuit Court of Forrest County, Riley was convicted and sentenced. Riley now appeals and argues that the evidence presented at his trial was not sufficient for the jury to find him guilty of burglary of an automobile.

¶ 2. Finding no error, we affirm.

PROCEDURAL HISTORY AND FACTS

¶ 3. Riley was convicted in the Circuit Court of Forrest County of burglary of an automobile in violation of Mississippi Code Annotated section 97-17-33 (Rev.2006). He was sentenced as a habitual offender to a term of seven years in the custody of the Mississippi Department of Corrections. Following the denial of his motion for a judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial, Riley appealed.

¶ 4. During his trial, Riley testified that he did not have a permanent place of abode, but he had been living with his employer. He testified that on the evening of March 21, 2006, he, his employer, and another individual were drinking. After a disagreement, Riley’s benefactor told him to leave the house. Riley began walking down Carnes Road with the self-professed intention of reaching a gas station that was three to four miles away and contacting someone to assist him. However, on his way to the gas station, Riley diverged from his planned path. As it turned out, Riley was found outside the home of Jerry and Pamela Boyte inside an automobile belonging to Pamela. Neither Jerry nor Pamela knew Riley.

¶ 5. Riley testified on cross-examination that as a result of his inebriated state he “was scared of walking down the road ... [because] it was dark and [he] could have [been] run over.” He later testified that he believed it was not dark, but he could not be sure because of the amount of alcohol he had consumed. Riley testified that as he was walking down Carnes Road he saw Pamela’s automobile at approximately 9:30 p.m.; however, he thought that the automobile belonged to a friend. Testimony at trial revealed that the Boytes’ driveway was estimated to be anywhere between an eighth of a mile to five hundred yards long and unlit other than the light from the Boytes’ home. Nevertheless, Riley stated that he saw the automobile and sought refuge in it.

¶ 6. Jerry testified that he and Pamela were watching television on the night of March 21, 2006, when they were alerted by their dog barking. Jerry investigated the disturbance and saw Riley inside Pamela’s automobile on the passenger side. Pamela looked out of the window and also saw Riley on the passenger side of the vehicle. Jerry went back inside the house to obtain a pistol for protection and went back outside. At this point, Jerry noticed the passenger side door was closed, but he saw Riley seated in the automobile on the driver’s side with one foot inside the automobile and one foot outside the automobile. Jerry approached Riley and ordered him to get out of the automobile. Jerry testified that Riley refused and stated that he was taking the automobile. Jerry disagreed and forced Riley out of the automobile and onto the ground. Pamela called 911 and reported the disturbance. Jerry bound Riley’s hands and waited for law enforcement to arrive. Jerry and Pamela testified that nothing was missing from the automobile, and nothing from the automobile was found on Riley’s person during a post-arrest search.

¶ 7. Riley testified that when he got to the automobile, he went directly to the driver’s side and sat in the automobile. He claimed he was not trying to steal anything and only sat in the automobile to rest. Furthermore, he testified that the automobile was not more than seventy-five feet from the road and was well lit. However, he admitted that he was disoriented from the effects of the alcohol.

ANALYSIS

WHETHER THE TRIAL COURT ERRED IN DENYING RILEY’S MOTION FOR A DIRECTED VERDICT AND MOTION FOR JNOV OR, ALTERNATIVELY, A NEW TRIAL.

¶ 8. Our standard of review of a trial court’s denial of a motion for a directed verdict or a motion for JNOV or, alternatively, a new trial has been recently stated as such:

A motion for a directed verdict and a motion for a judgment notwithstanding the verdict challenge the sufficiency of the evidence. When reviewing a case for sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” The evidence must show “beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” If, keeping in mind the reasonable-doubt standard, “reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,” the evidence will be deemed to have been sufficient.

Boone v. State, 973 So.2d 237, 242(¶ 18) (Miss.2008) (quoting Brown v. State, 970 So.2d 710, 712-13(¶ 7) (Miss.2007)) (internal citations omitted).

¶ 9. To convict Riley of burglary of an automobile under Mississippi Code Annotated section 97-17-33 (Rev.2006) the State was required to demonstrate that he: (1) broke into and entered an automobile; (2) “in which any goods, merchandise, equipment, or valuable thing shall be kept for use, sale, deposit, or transportation [; (3) ] with the intent to steal therein, or commit any felony.... ” Riley argues that the State failed to present sufficient proof to sustain a conviction of burglary of an automobile. Specifically, Riley claims that the State failed to present any evidence showing that Pamela’s automobile contained anything of value in accordance with the second element. Riley further argues that there were no facts introduced at trial from which a jury could reasonably infer the requisite intent to steal.

A. Evidence of “goods, merchandise, equipment, or valuable [things] ... kept for use, sale, deposit, or transportation” in Pamela’s automobile.

¶ 10. In Riley’s renewed motion for a directed verdict, he argued that the State failed to meet its burden only in regard to demonstrating the intent to steal. Similarly, in his motion for JNOV or, alternatively, a new trial Riley argued that “[t]he verdict of the jury is contrary to law and the weight of evidence.” However, he was not specific on how the jury’s verdict was contrary to law. “A motion for a directed verdict on the grounds that the State has failed to make out a prima facie case must state specifically wherein the State has failed to make out a prima facie case.” Banks v. State, 394 So.2d 875, 877 (Miss.1981). Such specificity is also required in a motion for JNOV. Davis v. State, 891 So.2d 256, 258(¶ 6) (Miss.Ct.App. 2004) (citing Banks, 394 So.2d at 877). If not specifically argued before the trial court, such is waived as issues may not be raised for the first time on appeal. Anderson v. State, 904 So.2d 973, 978(¶ 16) (Miss.2004). Therefore, because Riley failed to raise this issue before the trial court, he may not raise it on appeal.

¶ 11. Notwithstanding the procedural bar, Riley’s argument nonetheless fails. While neither an inventory of the automobile, nor other proof of its contents were entered into evidence, it can be inferred from the testimony at trial that the automobile contained items sufficient to satisfy section 97-17-33. Jerry testified that the automobile was the family vehicle. Furthermore, in reference to two pictures of the vehicle admitted into evidence that show the automobile parked approximately ten feet away from the Boytes’ home, Pamela testified that she always parked the vehicle in the same spot depicted in the photographs. Lastly, Riley testified that he sat in the driver’s side front seat of the vehicle to rest, and one photograph of the automobile shows the passenger side seat was also intact.

¶ 12. The State argues that from the above evidence, the jury could have reasonably inferred that the automobile contained at least two seats, a steering wheel, a gear shift, acceleration and brake pedals, and other items necessary for operation of the vehicle. We agree and find that such items certainly qualify as, at the very least, “equipment, or valuable [things] ... kept for use.” Therefore, this issue is without merit.

B. Evidence of intent to steal.

¶ 13. Riley next argues that no evidence was presented from which the jury could properly infer that he intended to steal from Pamela’s automobile. Riley states that the evidence showed that he did not run, no burglar tools were found, and no property had been removed from the automobile, so this Court must reverse and render as to his conviction and sentence for lack of sufficient evidence on intent to steal.

¶ 14. The supreme court has held that “intent is an emotional operation of the mind, and is usually shown by acts and declarations of the defendant coupled with facts and circumstances surrounding him at the time. [A] [djefendant’s intention is manifested largely by the things he does.” Brown v. State, 799 So.2d 870, 872(¶ 8) (Miss.2001) (quoting Newburn v. State, 205 So.2d 260, 265 (Miss.1967)). Furthermore, an “inference of the intent to steal may arise from proof of the breaking and entering.” Broomfield, v. State, 878 So.2d 207, 214(1122) (Miss.Ct.App.2004) (quoting Crawford v. State, 839 So.2d 594, 595(¶ 6) (Miss.Ct.App.2003)).

¶ 15. It is uncontested that Riley broke into and entered Pamela’s automobile. Furthermore, Riley conceded that it was approximately 9:30 p.m. when he was discovered inside Pamela’s automobile, but he testified that he saw the automobile from the road. However, the testimony at trial established that Pamela’s automobile was parked in front of the house, and that the Boytes’ driveway was unlit and between an eighth of a mile to five hundred yards long. Additionally, while he testified at trial that he sought out the automobile because he believed it belonged to his friend and went straight to the driver’s side front seat to rest, Pamela and Jerry testified that they saw him inside the vehicle on the passenger side. Subsequently, Jerry testified that when he returned to the automobile, the driver’s side door was open and Riley was sitting on the driver’s side front seat. Lastly, Jerry testified without contradiction that when he ordered Riley out of the automobile, Riley refused and proclaimed that he was taking the automobile.

¶ 16. While there are conflicts in the evidence presented to the jury, it has long been held that when such an instance arises the jury shall “be the sole judge of the credibility of witnesses and the weight and worth of their testimony.” Harris v. State, 970 So.2d 151, 156(¶ 20) (Miss.2007) (quoting Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980)). The jury could have properly inferred that Riley happened upon Pamela’s automobile after venturing down an long and unlit driveway. Further, from the testimonies of the Boytes, the jury could have properly inferred that Riley broke into and entered Pamela’s automobile on the passenger side with the intent to steal, but after examining the passenger side, he found nothing to his liking. Undeterred, Riley proceeded to the driver’s side to continue his search. When confronted by Jerry, Riley neither apologized for being inside the vehicle, nor explained that he thought it belonged to someone else. Instead, he refused to exit the vehicle and informed Jerry that he was taking the automobile. Viewing the evidence in the light most favorable to the prosecution, we find that there was sufficient evidence for the jury to properly infer that Riley had the intent to steal when he broke into and entered Pamela’s automobile. This issue is without merit.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY OF CONVICTION OF BURGLARY OF AN AUTOMOBILE AND SENTENCE OF SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ., CONCUR. IRVING, J, CONCURS IN RESULT ONLY.


author: KING, C.J.,

text:
    Roy WHITE and Kevin White d/b/a R & K Timber, Appellants, v. Joe JORDAN, Appellee. Roy White and Kevin White d/b/a R & K Timber, Appellants, v. George Lee Dukes, Appellee.
    Nos. 2007-WC-01209-COA, 2007-WC-01212-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2008.
    Rehearing Denied March 31, 2009.
    Certiorari Denied June 25, 2009.

      Steven D. Slade, attorney for appellants.
    Thomas L. Tullos, attorney for appel-lees.
    Before KING, C.J., ISHEE and ROBERTS, JJ.
   KING, C.J.,

for the Court.

¶ 1. Roy White (Roy) and Kevin White (Kevin), conducting business under the name of R & K Timber, appeal the judgment of the Newton County Circuit Court that affirmed the Mississippi Workers’ Compensation Commission’s finding that R & K Timber was an employer subject to the Mississippi Workers’ Compensation Act, and that its employees, Joe Jordan and George Lee Dukes, were covered employees on the date of their injuries.

¶ 2. On appeal, R & K Timber raises as error the following matters:

1. That an erroneous legal standard was applied in finding R & K Timber to be a covered employer under the Mississippi Worker’s Compensation Act, and the finding was not supported by substantial evidence.
2. That in finding R & K Timber to be a covered employer, and immediately subject to the requirements of the Mississippi Workers’ Compensation Act, the Commission held R & K Timber to a higher coverage standard than that required by Mississippi Code Annotated section 71-3-5 and that of the Commission’s own criteria for applying for compensation coverage.
3. That it was error to prematurely dismiss Linden Lumber Company since it might have been a statutory employer and, thus, responsible for securing compensation payments.
4. That the acceptance of the benefits paid under the AIG policy should have been considered as either an election of remedy or applied as credit for payments made in lieu of compensation.
¶ 3. Finding no error, we affirm.

FACTS

¶ 4. In June 2003, Roy decided to reenter the logging business. Prior to December 2002, he had been the manager of a logging business that was owned by his wife. This time he established the business under the name of R & K Timber. R & K Timber was a joint venture between Roy and his son, Kevin.

¶ 5. The Whites hired a total of seven people. They employed two saw-hands, a skidder operator, a mechanic, two truck drivers, and a foreman. Jordan and Dukes were the saw-hands. Both Jordan and Dukes had previously worked for Hickory Timber Company, which went out of business in December 2002 and had been owned by Roy’s wife and managed by Roy.

¶ 6. R & K Timber began its logging business on June 23, 2003. Just a few weeks later on July 16, 2003, Jordan and Dukes were injured in a common accident during the course of their employment. Both employees were severely injured when a tree fell and hit them.

¶ 7. Jordan suffered a crushed chest and a transaction of the spinal cord. He is paralyzed from the waist down and confined to a wheelchair for the rest of his life. He suffers from chronic pain. Dukes suffered a humeral fracture and an inferior subluxation. Since the accident, Dukes has had difficulty with finger grip and numbness over the left small finger.

¶ 8. At the time of the accident, R & K did not have workers’ compensation insurance coverage. However, it did have an American International Group, Inc. (AIG), policy to cover accidents to employees, but the policy specifically excluded workers’ compensation coverage. Further, the policy stated that it was not meant to be used in lieu of workers’ compensation insurance.

¶ 9. In order to procure the AIG policy, R & K Timber was required to list its employees and how much it expected to pay those employees. Following the accident and injuries which serve as the basis of this action, the AIG policy did pay some amount to each of the injured employees.

¶ 10. Jordan and Dukes filed petitions to controvert on December 29, 2003. A hearing was held before an administrative law judge (ALJ). The ALJ found that R & K Timber was a covered employer as defined by the Mississippi Workers’ Compensation Act. Therefore, R & K Timber should have procured workers’ compensation insurance to cover any injuries that its employees might receive, including those injuries, that are the subject of this action. The Commission adopted the findings of the ALJ and found that R & K Timber was a covered employer as defined under the Mississippi Workers’ Compensation Act.

¶ 11. Subsequently, R & K Timber appealed the Commission’s decision to the Newton County Circuit Court. The circuit court found that there was substantial evidence to support the decision of the Commission. Therefore, the court affirmed the Commission’s decision. R & K Timber then instituted this appeal, which was deflected here for our review.

ANALYSIS

1. That the Commission erred in finding that R & K Timber was a covered employer under the Mississippi Workers’ Compensation Act.

¶ 12. R & K Timber argues that it was not a covered employer as defined by the Mississippi Workers’ Compensation Act, and that Jordan should have been required to prove by clear and convincing evidence, and not merely by the preponderance of the evidence, that R & K Timber was a covered employer. R & K Timber argues that there was no clear and convincing evidence that: (1) it regularly employed at least five persons or (2) Jordan was “regularly” employed by R & K Timber, because the Legislature has not defined the term regularly. Mississippi Code Annotated section 71-3-5 (Supp.2008), defines a covered employer for workers’ compensation as follows:

Every person, firm and private corporation, including any public service corporation but excluding, however, all nonprofit, charitable, fraternal, cultural, or religious corporations or associations, that have in service five (5) or more workmen or operatives regularly in the same business or in or about the same establishment under any contract of hire, express or implied.

¶ 13. Despite R & K Timber’s assertion that the Legislature has not defined “regularly,” the term “regularly” has been defined by the Mississippi courts. In Jackson v. Fly, 215 Miss. 303, 307-08, 63 So.2d 536, 537 (1953), the supreme court quoted favorably both “58 Am.Jur., Workmen’s Compensation, [sjection 87, p. 640” and “Larson’s Workmen’s Compensation Law, volume 1, [s]ection 52.20, page 769.” The supreme court further quoted from Fowler v. Baalmann, Inc., 361 Mo. 204, 234 S.W.2d 11, 14 (1950), which stated:

The word “regularly” is not synonymous with constantly or continuously. The work may be intermittent and yet regular. Men may be regularly but not continuously employed.... The word “regular” is used as an antonym of the word “casual” and, when an employee is regular or “regularly” employed, he is not casual.

Jackson, 215 Miss, at 308, 63 So.2d at 537.

¶ 14. It is clear that Jordan and sufficient others were “regularly” employed by R & K Timber to bring the company within the definition of a covered employer. Both Jordan and Dukes had worked with Roy in Roy’s wife’s logging business, and there was substantial evidence that they had worked with the Whites for several weeks prior to the accident. This finding was supported by sufficient evidence and not contrary to the overwhelming weight of the evidence.

¶ 15. R & K Timber argues that in making a determination of whether it was a covered employer, the proper standard of proof should have been clear and convincing evidence. R & K Timber suggests that this higher standard is required by section 71-3-83 of the Workers’ Compensation Act, which provides for the possible imposition of criminal penalties for the failure to secure payment of compensation. Miss.Code Ann. § 71-3-83 (Rev. 2000). The argument of R & K Timber is at best syllogistically flawed and at worst disingenuous. The standard of proof in this case is by a preponderance of the evidence. “To establish entitlement to benefits under workers’ compensation, the claimant bears the burden of proving by a preponderance of the evidence each element of the claim of disability.” Bryan Foods, Inc. v. White, 913 So.2d 1003, 1008(¶ 18) (Miss.Ct.App.2005) (citing Hedge v. Leggett & Platt, Inc., 641 So.2d 9, 13 (Miss.1994)). “An appellate court must defer to an administrative agency’s findings of fact if there is even a quantum of credible evidence which supports the agency’s decision.” Bryan Foods, 913 So.2d at 1007(¶ 16) (citing Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1224 (Miss.1997)). The appropriate standard of proof was applied and met. R & K Timber cannot dodge its responsibility. There is no merit to this assignment of error.

2. That in finding R & K Timber to be a covered employer, and immediately subject to the requirements of the Mississippi Workers’ Compensation Act, the Commission held R & K Timber to a higher standard of coverage than required by Mississippi Code Annotated section 71-3-5 and that of the Commission’s own criteria for applying for coverage.

¶ 16. R & K Timber argues that it should not have been required to obtain “immediate” workers’ compensation coverage and that the statute does not require such coverage. However, R & K Timber does not cite any authority that dictates or implies the existence of a waiting period to obtain workers’ compensation insurance.

¶ 17. The claimants argue that this issue was not raised at the Commission in response to the petition to controvert and that neither of the Whites testified that it was impossible for R & K Timber to obtain workers’ compensation insurance. The evidence was that R & K Timber did not apply for workers’ compensation insurance until after the accident and that the failure to have workers’ compensation insurance was the result of its own business practices, rather than any inability. The time and payroll data were within the control of R & K Timber, and it is evident that the company could have and should have applied for workers’ compensation insurance prior to the accident.

¶ 18. The statute does not set any timetable for procuring workers’ compensation insurance, it merely gives the coverage criteria. However, given the beneficent purpose of the Workers’ Compensation Act, it should be readily apparent to any business owner that workers’ compensation insurance is necessary as soon as the business meets the statutory definition of a covered employer. R & K Timber was not held to any higher standard than any other business by the Commission, and the insurance requirements are not inconsistent with the statute.

¶ 19. Because R & K Timber met the statutory definition of a covered employer pursuant to Mississippi Code Annotated section 71-3-5, it was not error to require R & K Timber to have coverage for any and all job-related accidents arising from and after it met that definition. There is no merit to this assignment of error.

3. That it was error to prematurely dismiss Linden Lumber Company since it might have been a statutory employer and, thus, responsible for securing compensation payments.

¶ 20. R & K Timber argues that it was error for Linden Lumber Company (Linden Lumber) to be dismissed since Linden Lumber could be the “statutory employer” if R & K Timber were the “subcontractor.” R & K Timber’s argument is that there was ample evidence of a contractor/subcontractor relationship. Kevin testified that: (1) the timber was purchased by Linden Lumber for harvesting; (2) the harvesting was subcontracted to him by Linden Lumber; and (3) he would not have reentered the logging business but for Linden Lumber.

¶ 21. R & K Timber does not argue that Linden Lumber was the statutory employer but only that Linden Lumber could have been. This question was presented to the ALJ, who found it lacking in merit. The ALJ noted that Linden Lumber was excluded from coverage under section 71-3-5 of the Mississippi Workers’ Compensation Act. The relevant portion provides that: “Any purchaser of timber products shall not be liable for workers’ compensation for any person who harvests and delivers timber to such purchaser if such purchaser is not liable for unemployment tax on the person harvesting and delivering the timber as provided by United States Code Annotated, Title 26, Section 3306, as amended.” There was no evidence offered of the existence of an employer-employee relationship between Linden Lumber or any of the employees of R & K Timber. There was no evidence that Linden Lumber paid Jordan or that Linden Lumber exercised any control over the employees of R & K Timber. In the absence of such a relationship, Linden Lumber was not required to pay unemployment taxes for any of R & K Timber’s employees. It was, therefore, exempt from the Mississippi Workers’ Compensation Act.

4. That the acceptance of the benefits paid under the AIG policy should have been considered as either an election of remedies or allowed as a credit for payments made in lieu of compensation.

¶ 22. R & K Timber also argues that it should be given credit for the payments under the AIG policy, despite the fact that the policy specifically excluded coverage for workers’ compensation and stated that it was not meant to be used in lieu of workers’ compensation insurance. See Riddell v. Estate of Cagle, 227 Miss. 305, 309, 85 So.2d 926, 927 (1956). See also V. Dunn, Mississippi Workers’ Compensation, § 24 (3rd ed.1982), in which the following is stated:

The exclusiveness of the Act is also applied when the beneficiaries elect to claim compensation, and in such event liability is imposed without reference to other forms of insurance benefits which may have been secured, in lieu of compensation insurance, by the employer for the benefit of the employee or his dependents. Thus, liability under the Act is not discharged, in whole or in part, by the payment or acceptance of the proceeds of a life and accident policy taken out by the employer for the benefit of the employee and his dependents and such payment may not be considered as an advance payment of compensation.

¶ 23. The fact that Jordan may have received benefits from the AIG policy is irrelevant to the responsibility of the Whites and R <& K Timber under the Act. The Commission and the circuit court found their liability under workers’ compensation law, and we affirm the judgment of the circuit court.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF NEWTON COUNTY IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLANTS.

MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. LEE, P.J., NOT PARTICIPATING.

      . Since Jordan and Dukes were injured in a common accident, their claims have been consolidated. The primary issue before this Court is whether R & K Timber was a covered employer as defined by the Mississippi Workers' Compensation Act. Therefore, unless specifically noted, we will refer to the employees as merely Jordan to prevent any confusion.


author: LEE, P.J.,

text:
    Dana M. SHADDEN, Appellant v. Keith A. SHADDEN, Appellee.
    No. 2007-CA-01628-COA.
    Court of Appeals of Mississippi.
    May 19, 2009.

      James G. McIntyre, Jackson, attorney for appellant.
    Christopher Paul Palmer, Brandon, attorney for appellee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On May 12, 2005, Keith and Dana Shadden were granted a divorce by the Superior Court of California, County of Kern. Dana was awarded physical custody of the couple’s two boys. Sometime after the divorce was granted, Keith moved to Wyoming. Dana moved to Mississippi in October 2006. On March 2, 2007, Keith filed a motion in the California court seeking custody of the two boys. On March 14, 2007, Dana was personally served with process to appear at a hearing in California on March 28, 2007.

¶ 2. While the custody determination was pending in California, Dana filed a petition on March 23, 2007, in the Rankin County Chancery Court seeking to confirm jurisdiction of the minor children in Rankin County. On March 28, 2007, the judge in California transferred custody of the two boys from Dana to Keith. Dana failed to appear at the hearing, to seek post-trial relief, or to appeal that decision.

¶ 3. On April 10, 2007, Keith filed an application in the Rankin County Chancery Court to register a foreign custody order pursuant to the Uniform Child Custody and Jurisdiction Enforcement Act. On April 11, 2007, Dana was notified that she had twenty days to contest the registration. On May 7, 2007, an order was entered confirming the registration of the foreign custody order and confirming judgment for enforcement. This order noted that Dana had failed to contest the registration.

¶ 4. On May 29, 2007, Keith filed a motion to dismiss Dana’s March 23, 2007, petition. Dana then filed a motion for relief from judgment, asking the Rankin County Chancery Court to set aside the custody modification order from California.

¶ 5. On June 8, 2007, the Rankin County Chancery Court entered a judgment dismissing Dana’s petition to confirm jurisdiction of the children and her petition for relief from the California judgment due to lack of jurisdiction. The chancellor then granted Keith’s motion to dismiss, which he had filed on May 29, 2007.

¶ 6. Dana subsequently filed a motion to reopen the record, for reconsideration, and for clarification. Keith also filed a motion requesting attorney’s fees. On September 11, 2007, the chancellor denied both motions. Dana now appeals to this Court arguing that the chancellor erred in finding that the Rankin County Chancery Court did not have jurisdiction over the matter. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 7. “Whether the chancery court had jurisdiction to hear a particular matter is a question of law, to which this Court must apply a de novo standard of review.” In re Guardianship of Z.J., 804 So.2d 1009,1011(¶ 9) (Miss.2002).

DISCUSSION

¶ 8. In her only issue on appeal, Dana argues that the chancellor erred in finding that he did not have jurisdiction over the matter. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Mississippi Code Annotated section 93-27-101 to -401 (Rev.2004), governs the ability of chancery courts to enforce or modify child custody judgments entered in another state.

¶ 9. Mississippi Code Annotated section 93-27-206(1) (Rev.2004) provides that:

Except as otherwise provided in Section 93-27-204, a court of this state may not exercise its jurisdiction under this act if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under Section 93-27-207.

At the time of the commencement of the proceeding in Rankin County, Keith had already filed a petition in California to modify custody. Dana filed her petition in Rankin County to confirm jurisdiction only after being served with process in the California custody modification case. Although Dana contends that she mistakenly thought the hearing in California was telephonic, the notice of hearing clearly indicates that Dana was ordered to appear in person. We do not find that Dana’s misunderstanding in any way eliminates the need to establish proper jurisdiction in Rankin County.

¶ 10. Furthermore, the chancellor did not have the authority to modify the California court’s custody modification. Mississippi Code Annotated section 93-27-203 (Supp.2008) states:

[A] court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under Section 93-27-201(l)(a) or (b); and:
(a) The court of the other state determines it no longer has exclusive, continuing jurisdiction under Section 93-27-202 or that a court of this state would be a more convenient forum under Section 93-27-207; or
(b) A court of this state or a court of the other state determines that neither the child, the child’s parents, nor any person acting as a parent presently does not reside in the other state.

An “ ‘[ijnitial determination’ means the first child custody determination concerning a particular child.” Miss.Code Ann. § 93-27-102(h) (Rev.2004). Clearly, the initial determination of custody occurred in California. The California court retained jurisdiction and ruled on the custody modification. Nowhere in the record is there any indication that the California court determined that Mississippi would be a more convenient forum. Dana should have filed post-trial motions or an appeal regarding the California court’s decision to modify custody. We also note that Dana had the opportunity to object to the order confirming registration of the custody modification, but she failed to do so.

¶ 11. Finding that Keith’s motion in California was pending at the time Dana’s petition was filed in Mississippi and that the chancellor did not have jurisdiction to modify the custody change, we affirm the chancellor’s judgment that jurisdiction was not proper.

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

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.


author: BARNES, J.,

text:
    Karl HUNT, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-CP-00493-COA.
    Court of Appeals of Mississippi.
    June 16, 2009.

      Karl Hunt, Appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Karl Hunt, appearing pro se, appeals the Circuit Court of Lee County’s denial of his motion for post-conviction relief. We find no error and affirm the circuit court’s decision.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On June 5, 2007, Hunt pleaded guilty in the Lee County Circuit Court to the sale of cocaine to two individuals in violation of Mississippi Code Annotated section 41-29-139(a) (Rev.2005). This case involves two causes. For cause number CR06-798, the trial court judge sentenced Hunt to twenty years in the custody of the Mississippi Department of Corrections (MDOC), with twelve years suspended, followed by five years of post-release supervision and ordered him to pay court costs and a fine. For cause number CR06-799, Hunt was sentenced to thirty years in the custody of the MDOC, with thirty years suspended, conditioned upon his committing no other offense and his compliance with the terms of his post-release supervision in cause number CR06-798. The sentence in CR06-799 was ordered to run consecutively to the sentence in CR06-798.

¶ 3. In January 2008, Hunt filed a timely motion for post-conviction relief in the Lee County Circuit Court. On February 1, 2008, the trial court denied Hunt’s motion. His notice of appeal, seeking review of the February 1 order, was stamped “filed” by the circuit court clerk on March 26, 2008. On appeal, Hunt makes the same arguments as in his initial January 2008 motion before the trial court: his indictments and capias were defective, and he received ineffective assistance of counsel.

STANDARD OF REVIEW

¶ 4. Factual findings by the trial court regarding the denial of post-conviction relief will not be altered unless they are found to be clearly erroneous. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999). Questions of law are reviewed de novo. Id.

ANALYSIS

1. .Jurisdiction

¶ 5. We note that Hunt’s notice of appeal was not received by the trial court for filing within thirty days of entry of the trial court’s judgment. The trial court denied Hunt’s initial post-conviction relief motion on February 1, 2008, and Hunt’s notice of appeal was stamped “filed” by the circuit court clerk on March 26, 2008, but the notice is otherwise without a date. Mississippi Rule of Appellate Procedure 4(a) requires that “the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.” Generally, an appeal shall be dismissed unless the notice of appeal is timely filed pursuant to Rule 4 or 5. M.R.A.P. 2(a)(1). However, post-conviction relief petitions are governed by Mississippi Rule of Appellate Procedure 2(c), whereby this Court in a particular case may suspend the requirements of the appellate rules in the interest of justice. Specifically, this Court may suspend Rule 4(a) to allow an out-of-time appeal in criminal cases. While the State has not challenged appellate jurisdiction, we must determine whether jurisdiction exists. The prison mailbox rule states, in pro se post-conviction relief proceedings, the prisoner’s motion is considered delivered for filing when the prisoner gives the documents to prison officials for mailing. Sykes v. State, 757 So.2d 997, 1000-01(¶ 14) (Miss.2000). The State bears the burden of proving the prisoner’s notice of appeal was untimely filed. Melton v. State, 930 So.2d 452, 455(¶ 8) (Miss.Ct.App.2006).

¶ 6. The State has not attempted to meet this burden, and there is no indication in the record when Hunt delivered his documents to prison officials. As discussed, this Court may suspend the appellate rules in the interest of justice. M.R.A.P. 2(c). Because we do not know when Hunt delivered his notice of appeal to prison officials for mailing, nor do we know when Hunt received notice of the trial court’s ruling on his motion for post-conviction relief, we exercise our discretion under Rule 2(c) to suspend the thirty-day requirement to the extent Hunt’s filing may have been untimely filed under the prison mailbox rule. Accordingly, we find jurisdiction proper and shall address Hunt’s appeal on the merits.

2.Indictments

¶ 7. Hunt contends the indictments for cause numbers CR06-798 and CR06-799 are defective in that they violate the requirements for validity under Mississippi Code Annotated section 99-7-9 (Rev.2007) and Mississippi Uniform Rule of Circuit and County Court 7.06. Specifically, he claims that the indictments upon which he was convicted are not reflected in the record as the ones returned by the grand jury because: they were not signed by the grand jury foreman prior to the adjournment of the court and were not marked “filed and recorded”; the record does not contain the minutes of the grand jury; there is no proof of the number of grand jurors present; and there was no affidavit by the grand jury foreman. Hunt also claims he was thereby prejudiced in his ability to enter a voluntary and knowing guilty plea. He concludes that the trial court lacked jurisdiction to accept his guilty plea; so his conviction and sentence should be withdrawn.

¶ 8. Regarding the presentment of indictments, section 99-7-9 states:

All indictments and the report of the grand jury must be presented to the clerk of the circuit court by the foreman of the grand jury or by a member of such jury designated by the foreman, with the foreman’s name endorsed thereon, accompanied by his affidavit that all indictments were concurred in by twelve (12) or more members of the jury and that at least fifteen (15) were present during all deliberations, and must be marked “filed,” and such entry be dated and signed by the clerk. It shall not be required, that the body of the grand jury be present and the roll called. An entry on the minutes of the couH of the finding or presenting of an indictment shall not be necessary or made, but the endorsement by the foreman, together with the marking, dating, and signing by the clerk shall be the legal evidence of the finding and presenting to the court of the indictment.

(Emphasis added). The Mississippi Supreme Court has held that the “legal evidence of the concurrence of twelve or more of the grand jurors in finding and presenting the indictment is fully established by the signing thereof on the part of the foreman and the marking of it ‘filed’ by the clerk of the court.” McCormick v. State, 377 So.2d 1070, 1074 (Miss.1979) (quoting Temple v. State, 165 Miss. 798, 805-06, 145 So. 749, 751 (1933)). Hunt attached to his motion for post-conviction relief copies of the two indictments which, on the second page, are not signed by the foreman of the grand jury, dated by the clerk, or designated when filed. However, the record does contain copies of both indictments that are complete with signatures by the grand jury foreman and the signature and date “filed and recorded” of October 20, 2006, by the court clerk, thereby fulfilling the statutory requirements for presentment of an indictment.

¶ 9. Regarding the form of an indictment, Rule 7.06 requires an indictment to have:

1. The name of the accused;
2. The date on which the indictment was filed in court;
3. A statement that the prosecution is brought in the name and by the authority of the State of Mississippi;
4. The county and judicial district in which the indictment is brought;
5. The date and, if applicable, the time at which the offense was alleged to have been committed. Failure to state the correct date will not render the indictment insufficient;
6. The signature of the foreman of the grand jury issuing it; and
7. The words “against the peace and dignity of the state.”

All of the above requirements are present in the two indictments contained in the record.

¶ 10. Additionally, Hunt entered a valid guilty plea, which operates as a waiver of all non-jurisdictional defects contained in an indictment, or information, against a defendant. Reeder v. State, 783 So.2d 711, 720(¶ 36) (Miss.2001) (citing Brooks v. State, 573 So.2d 1350, 1352 (Miss.1990)). Other than constitutional issues, there are two exceptions where a voluntary guilty plea does not waive a defect: (1) if an indictment fails to charge an essential element of the crime, or (2) the court has no subject matter jurisdiction. Kincaid v. State, 711 So.2d 873, 877(¶ 20) (Miss.1998) (citing Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989)). Here, the alleged errors in Hunt’s indictment are non-jurisdictional, and none of the exceptions apply. Thus, the alleged errors are waived. Furthermore, the record contains copies of properly signed and dated indictments for both causes, wherein all requirements of section 99-7-9 and Rule 7.06 are met. Accordingly, we find that Hunt’s indictments are not defective.

3. Capias

¶ 11. Hunt also claims that his capias was defective as it was not signed by the court clerk or the sheriff. Attached to Hunt’s motion for post-conviction relief is a capias that is neither signed nor dated by the court clerk or the sheriff. Further, we find no copy of the original capias in the record. Regardless, as stated above, the entry of a valid guilty plea operates as a waiver of all non-jurisdictional defects contained in an indictment or information against the defendant. Reeder, 783 So.2d at 720(¶ 36) (citing Brooks, 573 So.2d at 1352). In Roby v. State, 861 So.2d 368, 371 (¶¶ 10-11) (Miss.Ct.App.2003), this Court held that an unsigned arrest warrant, general affidavit, and indictment which lacked signatures of a judge were “non-jurisdictional defects at best.” Thus, an unsigned capias is a non-jurisdictional defect. We find this issue without merit.

A Ineffective Assistance of Counsel

¶ 12. Hunt argues that because his counsel failed to object to the allegedly defective indictment, his counsel was ineffective. To be successful in a claim for ineffective assistance of counsel, the defendant must prove that his counsel’s performance was deficient, and the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The first prong of the Strickland analysis remains the same when the case involves a guilty plea. Hannah v. State, 943 So.2d 20, 24(¶ 7) (Miss.2006). Regarding the second prong, Hunt must show that there is a reasonable probability that but for his counsel’s alleged errors, he would not have entered a guilty plea, would have gone to trial, and the result would have been different. Id. We base our decision on whether counsel’s actions were effective in the totality of the circumstances surrounding each case. Swington v. State, 742 So.2d 1106, 1114(¶22) (Miss.1999) (citation omitted).

¶ 13. Hunt’s argument centers around the failure of his attorney to object to the indictments, which Hunt claims are “fatally defective.” As discussed above, Hunt’s indictments were not defective; so there was no reason for defense counsel to object. Since Hunt has failed to advance any other argument that his counsel’s performance was ineffective, his contention is without merit.

• ¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR.

      . In March 2008, Hunt filed a second motion for post-conviction relief, which was signed by Hunt on March 7, 2008, and filed with the trial court on March 18, 2008. The trial court denied this second motion on March 26, 2008, deeming it procedurally barred as a successive motion. The appeal of this second motion is not currently before the Court.

      . We note that other documents in the record associated with Hunt's appeal, such as his designation of records and affidavit of poverty, are all signed and dated March 21, 2008.

      . While post-conviction relief motions are technically "civil” actions, they are governed by the rules of criminal appeals; therefore, they are considered criminal actions for purposes of this rule. See M.R.A.P. 4 cmt.