author: MAXWELL, J.,

text:
    Kizzetta Nicole McCLENDON a/k/a Kizzetta N. McClendon a/k/a Kizzetta McClendon, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01389-COA.
    Court of Appeals of Mississippi.
    June 25, 2013.
    Rehearing Denied Oct. 29, 2013.

      Edmund J. Phillips Jr., Newton, attorney for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before LEE, C.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Kizzetta Nicole McClendon was convicted of two counts of credit-card fraud after using a stolen debit card to purchase clothing from two stores in Carthage, Mississippi. Based on her nine prior convictions — one for grand larceny, three for uttering a forgery, and five for credit-card fraud — she was sentenced to three years’ imprisonment on each count, to be served consecutively. After reviewing McClen-don’s numerous assignments of error, we find the majority of her claims are either inappropriate for direct appeal, allege matters outside the record, or- lack supporting authority. We limit our review to the several issues that are properly before us, including her challenges to (1) the sufficiency of the evidence, (2) officer testimony, (3) the denial of a timely initial appearance, (4) the denial of her motion for a preliminary hearing, and (5) her alleged speedy-trial violation. Finding no reversible error as to any of these issues, we affirm.

Background Facts

¶ 2. McClendon was arrested after she used a stolen debit card to make separate clothing purchases at two stores. When making the purchases, she signed the sales receipts using the victim’s name. An employee from each store identified McClen-don, both in a photographic lineup and at trial, as the person who used the stolen card. A Carthage police officer testified that when he stopped McClendon’s vehicle she presented him -with false identification. The officer also discovered the merchandise from the two stores in her car. A Leake County jury convicted McClendon on both counts of credit-card fraud. She now appeals.

Discussion

I. Sufficiency of the Evidence

¶ 3. McClendon’s first argument focuses on the sufficiency of the evidence supporting her convictions. She insists the State failed to establish a prima facie case that she violated Mississippi Code Annotated section 97-19-21(1) (Rev.2006), because the State used the word credit card in the indictment when the proof showed the im-permissibly used access device was actually a debit card.

¶ 4. When reviewing a challenge to the 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. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 5. While the crimes prohibited by section 97-19-21 are commonly referred to as “credit-card fraud,” a quick review of this statute reveals a number of different ways to violate this code provision and a variety of methods to charge such violations. Here, the State proceeded under the portion of subsection (1) that makes it “unlawful for any person, with intent to defraud the cardholder [or] issuer ... (b) to obtain money, goods, property, services or anything else of value ... (iii) by representing that he has been authorized to use the credit card or credit card number.” Miss.Code Ann. § 97 — 19—21 (l)(b)(iii).

¶ 6. McClendon does not take issue with the indictment’s charging language, nor does she argue that the State failed to allege a cognizable offense. Instead, she claims the charged access device, a “credit card,” which has traditionally been viewed as a device or card “used to obtain items on credit,” differs from a “debit card” — the particular instrumentality used in both purchases — which is generally thought of as “a card used to pay for purchases by electronic transfer from the purchaser’s bank account.” As McClendon sees it, because most of the trial testimony referenced the card as a debit card, the State failed to prove she used a credit card, as charged in both counts. We disagree.

¶ 7. While these general distinctions perhaps matter in some contexts, we find they are immaterial here as the term “credit card” is broadly defined by Mississippi Code Annotated section 97-19-9(b) (Rev. 2006) to include access devices commonly referred to as “debit cards.” Under section 97-19-9(b), which expressly applies to all manners of “False Pretenses and Cheats” found in sections 97-19-5 through 97-19-29, a “credit card” is defined as:

any instrument or device, whether known as a credit card, credit plate or by any other name, issued with or without fee by an issuer for the use of the cardholder or one authorized by him in obtaining money, goods, property, services or anything else of value on credit or in consideration of an undertaking or guaranty by the issuer of a payment of a check or draft drawn by the cardholder or one authorized by him, and shall include a card issued by a financial institution to be used in operating an automatic unmanned cash dispensing machine.

Miss.Code Ann.' § 97-19-9(b) (emphasis added).

¶ 8. At trial, the store employees testified that McClendon signed receipts in both stores, as is customary in credit-card transactions. And several witnesses referred to the card as a “credit card.” However, the bulk of the testimony, including that from the victim cardholder, described the Citizens National Bank card as a debit card. From our review it appears the' card was a debit card with an accompanying credit-card function. But regardless of the chosen label, the fraudulently used card certainly falls within section 97-19-9(b)’s broad definition of “credit card.”

¶ 9. Further, McClendon’s defense did not hinge on her insistence that the State failed to prove a violation under section 97-19-21(1) because she used a stolen debit card, not a credit card. Rather, McClendon argued the State failed to prove she was the actual person who used the stolen card. Viewing the evidence in the light most favorable to the State, as we must, we find sufficient evidence supports the two charges under section 97-19-21(1). Thus, the trial judge properly denied McClendon’s motion for a directed verdict, request for a peremptory instruction, and post-trial motion for a judgment notwithstanding the verdict.

II. Hearsay Objection

¶ 10. McClendon next suggests the trial judge admitted hearsay testimony about attempts to recover the stolen card. McClendon objected when a Carthage Police Department officer began to testify that McClendon had “crushed” the card in her hand and “flushed it” down the toilet. She claimed the officer did not witness this and had no personal knowledge about the disposal or recovery of the card. At this point, a somewhat confusing exchange ensued between defense counsel, the State, and the trial judge. The defense claimed the State was forcing hearsay evidence that another person witnessed. And the State seemed perplexed over the objection, not understanding the nature of the objection or how to properly proceed, which the defense suggests was feigned. After a bit of back and forth between the State and defense counsel, the judge, having initially allowed the testimony, quickly refocused and instructed the State to “[a]sk the question again.” The State complied, asking the officer: “Was the credit card recovered?” And the judge then instructed the officer to “answer the question.” The officer did indeed answer — responding that the card was never recovered. At that point, McClendon’s attorney clarified, “[w]e have no objection to that your hon- or.”

¶ 11. From this exchange, we find that, even if the officer’s initial testimony was hearsay, it appears it was cleared up to McClendon’s satisfaction. To the extent it was not remedied, we find the weight of the overall evidence against McClendon heavily outweighs the harm done by allowing the officer’s initial testimony. Thus, the admission of the initial testimony was at most harmless error. See Veasley v. State, 735 So.2d 432, 437 (¶ 17) (Miss.1999).

III. Initial Appearance

¶ 12. McClendon next suggests that a six-day delay between her arrest and initial appearance, during which she was not allowed to use the telephone, prejudiced her defense and is reversible error.

¶ 13. Under Uniform Rule of Circuit and County Court 6.03, “every person in custody shall be taken, without unnecessary delay and within 48 hours of arrest, before a judicial officer ... for an initial appearance.” While the rule provides for a timely initial appearance, the failure to provide an initial appearance for the accused within forty-eight hours does not itself mandate reversal of his or her convictions, where there is no resulting prejudice. Johnson v. State, 749 So.2d 306, 308 (¶¶ 4-5) (Miss.Ct.App.1999) (holding three-week delay between arrest and initial appearance did not warrant reversal of conviction because no prejudice resulted). The record does not indicate why McClen-don did not appear before a judge for six days after her arrest. But even assuming this delay was improper, and her allegation that she could not use the phone is true, she offers no proof of how this prejudiced her trial defense. Without any proof of prejudice to her defense, we find the delay between her arrest and initial appearance does not mandate reversal of her convictions.

IY. Request for Preliminary Hearing

¶ 14. McClendon also takes issue with the trial court’s denial of her motion for a preliminary hearing. Though she had already been indicted on November 2, 2010, McClendon sought a preliminary hearing almost five months later, on March 31, 2011. The trial judge dismissed her request.

¶ 15. “[T]he fundamental purpose of a preliminary hearing is to determine whether there is probable cause to believe that an offense has been committed and whether the defendant committed it.” Mayfield v. State, 612 So.2d 1120, 1129 (Miss.1992) (internal quotations omitted). After a grand jury has met and found that probable cause exists, there is no further need for a preliminary hearing. Id. Because McClendon had been indicted, there was already a finding of probable cause on both charges. Therefore, we find the trial judge properly dismissed her request for a post-indictment preliminary hearing.

V. Right to a Speedy Trial

¶ 16. McClendon finally argues the delay between her arrest and trial violated her right to a speedy trial. “There is no set amount of time within which a defendant must be brought to trial.” Stark v. State, 911 So.2d 447, 449 (¶ 6) (Miss.2005). When a defendant has alleged a speedy-trial violation, we consider the length of the delay, the reason for the delay, whether the defendant asserted the right, and any prejudice to the defendant to determine whether her right has been violated. Id. at 450 (¶ 7) (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)).

A. Length of Delay

¶ 17. Any delay exceeding eight months is presumptively prejudicial, calculating the time elapsed begins with the defendant’s arrest, indictment, or information. Id. (holding the “right to a speedy trial attaches when a person has been accused”). McClendon was arrested the day of the fraudulent purchases, February 17, 2010. Her trial began September 6, 2011. So the eighteen-and-a-half month delay is presumptively prejudicial, requiring us to consider the remaining factors. See id. at (¶ 10).

id. Reason for Delay

¶ 18. When the delay is presumptively prejudicial, the burden shifts to the State to show cause for the delay. Id. at (¶ 11). This court must decide whether the delay should be charged to the State or the defendant. Id.

¶ 19. After her arrest in February 17, 2010, McClendon was immediately sent to the Central Mississippi Corrections Facility to serve the remainder of an unrelated sentence. She was not indicted for her present crimes until November 2, 2010. So the eight-and-a-half months between accusation and indictment are attributable to the State.

¶ 20. Once indicted, McClendon’s trial was first set for January 10, 2011. Due to a crowded docket, McClendon’s case could not be tried and was reset for May 4, 2011. Because the United States Supreme Court has reasoned that overcrowded courts are considered more of a neutral reason for delay, we find this portion of the delay weighs only minimally against the State. See Barker, 407 U.S. at 531, 92 S.Ct. 2182.

¶21. The remainder of the delay is attributable to McClendon. In March 2011, she sought to remove her court-appointed counsel, and on May 4, 2011, the day her trial was scheduled to begin, she moved for a continuance. She also made an ore tenus motion for another continuance the day of her September 6, 2011 trial, which was denied.

¶ 22. Because the delay was attributable to both the State and McClendon, as well as reasons outside the State’s control, we find this factor weighs only minimally against the State.

C. Assertion of Right to Speedy Trial

¶ 23. While McClendon filed a motion in December 2010 to dismiss for failure to provide a speedy trial, she did not request or move for a speedy trial until January 27, 2011. See Stark, 911 So.2d at 452 (¶ 27) (holding motion to dismiss for failure to provide a speedy trial is not a request or assertion of right to speedy trial). At no time between her February 17, 2010 arrest and January 2011 — while McClen-don was serving time for unrelated crimes — did she assert her right to a speedy trial. And by the time McClendon did her assert her right, she was also simultaneously asking for continuances. We find this factor weighs in favor of the State.

D. Prejudice to the Defendant

¶ 24. We consider three interests when determining if a defendant has been prejudiced by a delay — (1) the prevention of oppressive pretrial incarceration, (2) the minimalization of anxiety and concern of the accused, and (3) the limitation of possible impairments to the defense. Stark, 911 So.2d at 452-53 (¶ 28). “The last interest is the most important and, if violated, is the most prejudicial to the defendant.” Id. at 453 (¶ 28) (citing Barker, 407 U.S. at 532, 92 S.Ct. 2182).

¶ 25. Regarding the first interest, while McClendon was incarcerated from February 2010 to February 2011, it was for an unrelated conviction. So she was not prejudiced by this factor. McClendon’s focus is on the second interest. She alleges the delay caused her significant stress and anxiety, which she claims impacted her defense. But our supreme court has held that “anxiety alone does not amount' to prejudice worthy of reversal.” Duplantis v. State, 708 So.2d 1327, 1336 (¶ 25) (Miss.1998).

¶26. What McClendon fails to show is how the delay impacted the third and most important interest. See Barker, 407 U.S. at 532, 92 S.Ct. 2182. “Generally, proof of prejudice entails the loss of .evidence, death of witnesses, or staleness of an investigation.” Sharp v. State, 786 So.2d 372, 381 (¶ 19) (Miss.2001). McClen-don has made no assertion that “any evidence, potential witness, or case theory ... escaped [her] reach because of the delay.” Stark, 911 So.2d at 453 (¶ 31). McClendon somewhat confusingly asserted at trial and on appeal that she was not provided access to certain physical evidence prior to trial. But she is not claiming this evidence, which was introduced at trial, disappeared during and because of the delay. Also, in a separate argument in her pro se brief, she also alleges the State erred by choosing to call certain law enforcement officers — and not others, who no longer worked on the police force — to testify against her. But in her speedy-trial argument, McClendon does not claim she was unable to call these other investigators or interview them before trial because of the delay. So there is no basis to find McClendon’s defense was impaired by the delay. As a result, we find this factor weighs against McClendon.

¶ 27. Because the length-and-reason-for-delay factors, which slightly favor McClendon, are neutralized by the assertion-of-right factor, which favors the State, we find McClendon’s failure to show any resulting prejudice to be the determining factor and conclude McClendon’s right to a speedy trial was not violated.

¶ 28. THE JUDGMENT OF THE LEAKE COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, CREDIT-CARD FRAUD, AND SENTENCE OF THREE YEARS, AND COUNT II, CREDIT-CARD FRAUD, AND SENTENCE OF THREE YEARS, WITH SENTENCES TO RUN CONSECUTIVELY, BOTH IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND FURTHER SENTENCE AS A HABITUAL OFFENDER, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEAKE COUNTY.

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

      . McClendon was convicted of violating Mississippi Code Annotated section 97-19-21 (Rev.2006). While the first violation of section 97-19-21 is a misdemeanor if the goods procured are less than $100, each subsequent violation is a felony punishable by up to three years in prison, regardless of the value of the goods. Further, because of her previous felony convictions, McClendon was a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007) and must serve the maximum prison sentence, without reduction or suspension, and is not eligible for parole.

      . McClendon is represented on appeal by court-appointed counsel, who filed a brief on her behalf. McClendon also filed a brief pro se. See M.R.A.P. 28(b). In addition to the assignments of error we address, McClendon also asserts in her separate pro se brief: (1) ineffective assistance of counsel, (2) improper warrants for her arrest, (3) failure by the State to allow discovery, (4) juror misconduct, (5) perjury by a police officer, and (6) perjury by an Assistant District Attorney. We find McClendon's ineffective-assistance-of-counsel claim is more appropriate for a post-conviction relief petition, as there is insufficient evidence in the record to address her claim. See Aguilar v. State, 847 So.2d 871, 878 (¶ 17) (Miss.Ct.App.2002). We do not review these remaining assignments of error because McClendon either waived them by failing to preserve the issue at trial, or she does not cite any evidence in the record or legal authority in support. See Byrom v. State, 863 So.2d 836, 853 (¶ 35) (Miss.2003); see also M.R.A.P. 28(b) (requiring issues raised in pro se supplemental brief in criminal appeal to "be based on the record”). Specifically,' we note that the warrants and affidavits, which McClendon attached to her pro se brief, are not part of the trial record and, thus, outside of our review. See McCullough v. State, 47 So.3d 1206, 1211 (¶ 18) (Miss.Ct.App.2010) (holding defendant could not make documents part of trial record “by simply attaching copies to his briefs filed with this Court”).

      . Under section 97-19-21:
      (1) It is unlawful for any person, with intent to defraud the cardholder, the issuer, a person or organization providing money, goods, property, services or anything else of value, or any other person, (a) to use a credit card or credit card number obtained or retained in violation of Sections 97-19-5 to 97-19-29, or a credit card which he knows is forged, for the purpose of obtaining money, goods, property, services or anything else of value, or (b) to obtain money, goods, property, services or anything else of value (i) by representing without the consent of the cardholder that he is the holder of a specified card, or (ii) by representing that he is the holder of a card when he has reason to know that such card has not in fact been issued, or (iii) by representing that he has been authorized to use the credit card or credit card number.
      (2) It is unlawful for any person, with intent to defraud the cardholder or issuer of a credit card used in the operation of an automatic unmanned cash dispensing machine, to use such card for the purpose of obtaining money from such machine.

      . Both counts one and two of the indictment traced the specific language of section 97-19-21(1), charging that McClendon
      did willfully, unlawfully and feloniously with intent to defraud [the cardholder] and Citizens National Bank, obtain from [J. Blockers Clothiers (Count One) and Mirbu's Store (Count Two) ], goods of a value of less than ... ($100), by representing to [the store] that she had been authorized to use a Citizens National Bank credit card issued to [the cardholder], contrary to and in violation of Section 97 — 19—21(1)[.]

      . Quotes are taken from McClendon’s brief.

      . We note McClendon supports this argument, raised in her pro se brief, by attaching to her brief a "certificate of initial appearance” that is not part of the record. See McCullough, 47 So.3d at 1211 (¶ 18). As the State concedes in its brief that McClendon made her initial appearance on February 23, 2010, after being arrested on February 17, 2010, we review the merits of this assignment of error.

      . "The Sixth and Fourteenth Amendments to the United States Constitution, along with Article 3, Section 26 of the Mississippi Constitution, guarantee a defendant the right to a speedy trial." Stark v. State, 911 So.2d 447, 449 (¶ 6) (Miss.2005) (citations omitted).


source: Caselaw Access Project

author: JAMES, J.,

license: Public Domain

text:
    Michael KELLY a/k/a Antonio Newton a/k/a Cortez Johnson, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00256-COA.
    Court of Appeals of Mississippi.
    June 25, 2013.
    Rehearing Denied Oct. 29, 2013.

      George T. Holmes, Jackson, Erin E. Pridgen, Matthew A. Baldridge, Flowood, attorneys for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before LEE, C.J., FAIR and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Michael Kelly was convicted of possession of stolen property in the Circuit Court of Rankin County, Mississippi. On appeal, Kelly raises the following issues: (1) the trial court erred in failing to grant his motion for a judgment notwithstanding the verdict (JNOV), as the evidence was insufficient to prove the element of guilty knowledge, (2) the trial court erred in failing to grant his motion for a new trial, as the verdict was against the overwhelming weight of the evidence, and (3) the trial court erred in denying his request for a “two-theory” jury instruction, which thereby deprived him of his fundamental right to have the jury consider his theory of defense. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Around midnight on August 19, 2010, Michael Kelly was stopped at a routine safety checkpoint on Highway 80 in Pearl, Mississippi. Kelly was driving a 2000 Mercury Grand Marquis with a Mississippi license plate. Paula Purvis, who is a friend of Kelly’s, was riding in the passenger seat of the vehicle. During the stop, Officer Eddie Hurt asked Kelly for his identification and vehicle registration. Kelly identified himself as Cortez Johnson. Kelly then gave Officer Hurt his Social Security number, which revealed his true identity. Upon realizing that Kelly had given a false name, Officer Hurt checked the vehicle’s license plate and discovered that the tag was not registered. Officer Hurt then checked the vehicle identification number (VIN) and discovered that the vehicle was stolen. The VIN check revealed that the vehicle was registered to M & B Auto Sales in Jackson, Mississippi. Masoud Bayati, owner of M & B Auto Sales, had reported the vehicle stolen a few months previously. According to Bay-ati, at the time the vehicle was stolen, the doors were unlocked and the keys were in the ignition. Bayati also testified that the vehicle- had no license plate, and that the tires were missing at the time it was stolen.

¶ 3. Kelly was arrested and charged with possession of stolen property in violation of Mississippi Code Annotated section 97-17-70. The jury returned a guilty verdict, and Kelly was sentenced as a habitual offender to serve ten years in the custody of the Mississippi Department of Corrections. From this verdict, Kelly now appeals.

DISCUSSION

I. Sufficiency of the Evidence

¶ 4. Kelly argues that the trial court erred in failing to grant his motion for a JNOV, as the evidence was insufficient to support his conviction for receiving stolen property. Specifically, he argues that there was insufficient evidence on the element of guilty knowledge. In reviewing the denial of' a motion for a JNOV, all evidence must be viewed in the light most favorable to the State. Anderson v. State, 904 So.2d 973, 978 (¶ 9) (Miss.2004) (citing Mitchell v. State, 572 So.2d 865, 867 (Miss.1990)). “All credible evidence supporting the conviction is taken as true; the State receives the benefit of all favorable inferences reasonably drawn from the evidence.” Williams v. State, 923 So.2d 990, 994 (¶ 13) (Miss.2006) (quoting McClain v. State, 625 So.2d 774, 778 (Miss.1993)). “If the facts so considered point so overwhelmingly in favor of the appellant that reasonable [Jurors] could not have arrived at a contrary verdict, we are required to reverse and render.” Id. (quoting Jefferson v. State, 818 So.2d 1099, 1110-11 (¶ 30) (Miss.2002)).

¶ 5. Considering the evidence in the light most favorable to the State, we find that the evidence was sufficient to support Kelly’s conviction for possession of stolen property. A person is guilty of the crime of possession of stolen property if he or she “intentionally possesses, receives, retains or disposes of stolen property knowing that it has been stolen or having reasonable grounds to believe it has been stolen.... ” Miss.Code Ann. § 97-17-70(1) (Rev.2006). “Guilty knowledge is the gist of the offense of receiving stolen property.” Long v. State, 933 So.2d 1056, 1058 (¶ 6) (Miss.Ct.App.2006) (quoting Ellett v. State, 364 So.2d 669, 670 (Miss.1978)). Kelly maintains that although the State proved that he was in actual possession of the stolen vehicle, the State failed to produce direct evidence to show that he knew or should have known that the vehicle was stolen. As Kelly argues, evidence of unexplained possession of stolen property, alone, is insufficient to satisfy the guilty-knowledge requirement of the crime of receiving stolen property. McClain, 625 So.2d at 779 (citing Tubwell v. State, 580 So.2d 1264, 1266 (Miss.1991)). However, when coupled with attempts at concealment, “such evidence may be sufficient to warrant a conviction.... ” Washington v. State, 726 So.2d 209, 213 (¶ 10) (Miss.Ct. App.1998) (quoting McClain, 625 So.2d at 779).

¶ 6. Here, Kelly’s misrepresentation to law enforcement of his identity during the roadblock, along with driving with an unregistered license plate would raise suspicion in the mind of a reasonable juror. These circumstances, coupled with the fact that Kelly was in possession of the stolen vehicle, would lead a reasonable juror to believe that Kelly either knew or should have known that the vehicle was stolen. “Guilty knowledge may be proved by direct evidence, or, since it is rarely the subject of direct and positive proof, by any surrounding facts or circumstances from which knowledge may be inferred.” Washington, 726 So.2d at 213 (¶ 10). In his brief, Kelly argues that the vehicle could have been borrowed; thus he would not have known that the license plate was unregistered or that the vehicle was stolen. However, Kelly never declared to Officer Hurt that the vehicle was borrowed, nor did he argue this theory during trial. There is nothing in the record to suggest that Kelly borrowed the vehicle from a third party.- In fact, Purvis testified that Kelly had driven the vehicle for approximately three to four months prior to the date of the roadblock. The proper standard for this Court regarding this issue is to view the evidence in the light most favorable to the State. In doing so, we find that the evidence was sufficient to satisfy the requisite element of guilty knowledge for the crime of receiving stolen property. This issue is without merit.

II. Weight of the Evidence

¶ 7. This Court employs a different standard of review for a motion for a new trial than for a motion for a JNOV. Williams, 923 So.2d at 994 (¶ 14) (citing Sheffield v. State, 749 So.2d 123, 127 (¶ 16) (Miss.1999)). While a motion for a JNOV challenges the sufficiency of the evidence, as discussed above, a motion for a new trial challenges the weight of the evidence. Id. (citing Jones v. State, 918 So.2d 1220, 1285 (¶ 38) (Miss.2005)). A new trial will not be granted unless the verdict is “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 886, 844 (¶ 18) (Miss.2005). Thus, we will not reverse the denial of a motion for a new trial unless the trial court has abused its discretion. Id. at 845 (¶ 19).

¶ 8. Kelly contends that the jury disregarded the evidence that weighed in favor of a not-guilty verdict. First, he argues that because he was compliant with law enforcement during the roadblock by giving Officer Hurt his correct Social Security number, and because he did not attempt to flee, the evidence does not indicate that he knowingly possessed a stolen vehicle. However, after being asked for identification and vehicle registration, Kelly told Officer Hurt that his name was Cortez Johnson, and his true identity was revealed only after Officer Hurt checked his Social Security number. Kelly also points to the fact that the vehicle contained no signs of forced entry to indicate that it had been stolen. However, as previously mentioned, Bayati testified that at the time the vehicle was stolen, the keys were in the ignition and the doors were unlocked. When asked why he left the keys in the ignition, Bayati stated that someone had previously stolen the vehicle’s tires, and that he did not think anyone would be able to steal a vehicle with missing tires. Bay-ati also testified that when he retrieved the vehicle from the police department, the vehicle contained the original tires that had been stolen.

¶ 9. The fact that the vehicle had no exterior signs of theft, and that Kelly did not attempt to flee after being stopped by Officer Hurt, does not equate to the evidence weighing so heavily against the verdict that to allow the verdict to stand would be to sanction an unconscionable injustice. Kelly was found in possession of a stolen vehicle after attempting to conceal his identity from law enforcement. Furthermore, Kelly offered no explanation of how he came into possession of the vehicle, nor did he ever allege at trial that the vehicle was borrowed. We find that the trial court’s denial of Kelly’s motion for a new trial did not amount to an abuse of discretion, as the verdict was well supported by the evidence. Thus, this issue is without merit.

III. Two-Theory Jury Instruction

¶ 10. Lastly, Kelly argues that the trial court erred in denying his request for a two-theory jury instruction. It is well established that the giving or refusal of jury instructions is within the sole discretion of the trial court. Victory v. State, 83 So.3d 370, 373 (¶ 12) (Miss.2012) (citing Newell v. State, 49 So.3d 66, 73 (¶ 20) (Miss.2010)). Thus, we will not reverse a trial court’s decision absent an abuse of that discretion. Id. Kelly contends that proposed instruction D-2 was warranted because the State’s proof of guilty knowledge was based on circumstantial evidence. Instruction D-2 reads:

The [c]ourt instructs the [j]ury that if there is a fact or circumstance in this case susceptible to two interpretations, one favorable and one unfavorable to Michael Kelly, when the jury has considered said fact or circumstance with all other evidence, and there is reasonable doubt as to the correct interpretation, then you, the jury, must resolve such doubt in favor of Michael Kelly and place upon such fact or circumstance in the interpretation [sic] most favorable to Michael Kelly.

This “two-theory” instruction directs the jury on how to proceed “when the record supports two or more hypotheses of the crime committed and all the evidence of the crime is circumstantial.” McInnis v. State, 61 So.3d 872, 875 (¶ 11) (Miss.2011) (quotation marks omitted). “A circumstantial evidence case (for the purposes of [giving] a “two-theory” instruction) is one in which there is neither an eyewitness nor a confession to the crime.” State v. Rogers, 847 So.2d 858, 868 (¶ 22) (Miss.2003) (citing Mangum v. State, 762 So.2d 337, 344 (¶ 21) (Miss.2000)).

¶ 11. Here, the State presented direct evidence that Kelly was in possession of the stolen vehicle. In addition, Purvis, who was an eyewitness, testified that Kelly had possessed the vehicle for at least three to four months prior to his arrest. The Mississippi Supreme Court has held that two-theory jury instructions should only be given in cases based upon wholly circumstantial evidence. Rogers, 847 So.2d at 863 (¶ 21) (citing Kitchens v. State, 300 So.2d 922, 926 (Miss.1974)). “It is only in entirely circumstantial evidence cases that such an instruction is required.” Id. (citing Barnes v. State, 532 So.2d 1231, 1235 (Miss.1988)). Because there was direct evidence of the crime presented, the trial court properly refused instruction D-2. Accordingly, this issue is without merit.

¶ 12. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF STOLEN PROPERTY AND SENTENCE AS A HABITUAL OFFENDER OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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

      . On December 10, 2001, Kelly was convicted of business burglary and motor-vehicle theft in Hinds County. He was sentenced to two years for each offense.


author: PARKER, Justice.

text:
    Anne Bates GIBBONS v. TOWN OF VINCENT et al.
    1110400.
    Supreme Court of Alabama.
    Dec. 21, 2012.

      Frank C. Galloway III and Sylvion S. Moss of Galloway & Scott, LLC, Birmingham, for appellant.
    Corey B. Moore of Weathington, Moore, Weisskopf & Hill, P.C., Moody, for appel-lees Town of Vincent and Town of Vincent Planning Commission.
    Alan T. Rogers, Robert P. Fowler, and Ed R. Haden of Balch & Bingham LLP, Birmingham, for appellee White Rock Quarries, LLC.
    Lorelei Lein, gen. counsel, Alabama League of Municipalities, Montgomery, for amicus curiae Alabama League of Municipalities, in support of Town of Vincent.
   PARKER, Justice.

Anne Bates Gibbons appeals the Shelby Circuit Court’s summary judgment in favor of the Town of Vincent (“the Town”), the planning commission of the Town of Vincent (“the planning commission”), and White Rock Quarries, LLC (“White Rock”) (hereinafter collectively referred to as “the appellees”). We affirm.

Facts and Procedural History

White Rock owns 888 acres of undeveloped land situated within the corporate limits of the Town (“the land”) and 86 acres of undeveloped land adjacent to the 888 acres and originally situated in an unincorporated area in Shelby County, outside the Town’s corporate limits; the 86 acres has been annexed by the Town and is now within its corporate limits. Gibbons’s complaint challenged the Town’s rezoning of the land based on a rezoning application submitted by White Rock and its annexation of the 86 acres. White Rock sought the rezoning and annexation so that it could construct and operate a rock quarry on the property. Relevant to Gibbons’s claims is an amendment to the Town’s zoning code adopted in 2009 pursuant to which the land was rezoned (“the 2009 amendment”) and the process by which the Town adopted the 2009 amendment. Specifically, Gibbons alleges that the Town did not satisfy the notice requirements of the statutes that give municipal corporations in Alabama the power to enact zoning ordinances and that set out the requirements for enacting such ordinances, § 11-52-70 et seq., Ala.Code 1975 (“the zoning statutes”), in adopting the 2009 amendment.

Joy Marler, the Town’s clerk, testified by affidavit that on May 15, 2009, she posted notice of a public hearing to be held by the planning commission on June 9, 2009; the purpose of the June 9, 2009, public hearing was to hear public comments on and consider updating the Town’s zoning code. A copy of the 2009 amendment was made available to the public at the June 9, 2009, public hearing.

Marler testified that on June 24, 2009, she posted notice of another public hearing to be held by the planning commission on July 14, 2009; the purpose of the July 14, 2009, public hearing was to hear public comments on and to consider updating the Town’s zoning code. A copy of the 2009 amendment was made available to the public at the July 14, 2009, public hearing.

Marler testified that on August 11, 2009, she posted notice of a public hearing to be held by the Town’s council (“the council”) on September 1, 2009; the purpose of the September 1, 2009, public hearing was to hear public comments on and to consider the adoption of the 2009 amendment. A copy of the 2009 amendment was made available to the public at the September 1, 2009, public hearing.

Marler testified that on September 9, 2009, she posted notice of the council’s regular meeting to occur on September 22, 2009; on the agenda for the council’s regular meeting, among other things, was “updating the present zoning ordinance.” Marler testified that at its regular meeting on September 22, 2009, the council adopted the 2009 amendment. Marler also testified that on September 23, 2009, she posted the Town’s zoning code, which included the changes made by the council’s passage of the 2009 amendment.

On October 21, 2009, White Rock filed an application with the Town requesting that the Town rezone the land from “agricultural district” and “rural residential” to “special district” pursuant to § 5.14 of the Town’s zoning code and allow White Rock to construct and operate a rock quarry on the land (“the rezoning application”). Section 5.14.5 of the Town’s zoning code was added by the 2009 amendment. In response to a request by the Town, White Rock amended its rezoning application on November 3, 2009, with a survey of the land, as well as the 86 acres in the unincorporated area of Shelby County.

The Town does not employ land planners to assist with zoning applications. Instead, land planners at the Shelby County Department of Development Services advise and assist the Town with land-planning issues pursuant to a contractual agreement. Kristine Goddard, a land planner with the Shelby County Department of Development Services, assisted the planning commission and the council with processing and reviewing the rezoning application.

Marler testified that on January 12, 2010, she posted notice of a hearing to be held by the planning commission on January 26, 2010; the purpose of the January 26, 2010, public hearing was to receive public comment on the rezoning application. The planning commission held the January 26, 2010, public hearing, and following that public hearing, the planning commission held two “work sessions” on February 1, 2010, and March 4, 2010. The purpose of the work sessions was to “discuss (i) the [rezoning application], (ii) the draft recommendations and report from Ms. Kristine Goddard on behalf of the Shelby County Department of Development Services and the Planning Commission, and (iii) comments received at the January 26, 2010, public hearing.”

On February 16, 2010, the council held a regularly scheduled meeting, which members of the planning commission and the Zoning Board of Adjustment for the Town (“the ZBA”) attended. Discussed at the meeting was the potential impact of the rezoning application on property adjacent to the land, which is owned by EBSCO Industries.

On February 26, 2010, Gibbons, as a property owner and resident of the Town, filed a complaint against the Town and the planning commission. Gibbons sought a writ of mandamus directing the Town and the planning commission “to cease considering the [rezoning] Application under the provisions of Section 5.14.5 of the [Town’s zoning eode],[] and instead begin its review of the [rezoning] Application anew in conformity with the provisions of Section 5.5 of the [Town’s zoning code].[]” In her complaint, Gibbons also sought a judgment declaring § 5.14.5 of the zoning code void ab initio; specifically, Gibbons alleged that the Town did not meet the notice requirements of § 11-52-77, Ala.Code 1975, before adopting the 2009 amendment. In the alternative, assuming that the 2009 amendment was validly adopted, Gibbons sought a declaration that White Rock’s proposed use of the land is covered under § 5.5, not § 5.14.5, of the Town’s zoning code.

On March 23, 2010, the planning commission held a specially called meeting to vote on the rezoning application. The planning commission unanimously agreed to recommend that the council “approve [the rezoning application] as modified, amend the [Town’s] Comprehensive Plan and adopt an ordinance rezoning the [land] to Special Use District.”

On April 6, 2010, White Rock petitioned the Town to annex the 86 acres situated outside the Town’s corporate limits (“the annexation petition”). On April 14, 2010, White Rock filed a motion to intervene in Gibbons’s action against the Town and the planning commission. The circuit court granted White Rock’s motion on June 9, 2010.

On May 28, 2010, White Rock presented to the council proposed ordinances granting the rezoning application and the annexation petition (“the White Rock ordinances”). On June 1, 2010, the council held a public work session to discuss the White Rock ordinances. Following the work session, a regularly scheduled council meeting was held, during which the White Rock ordinances were introduced and read before the council for the first time. The parties do not indicate whether notice for this meeting was posted.

On June 2, 2010, Marler posted notice of a public hearing to be held on June 17, 2010, by the council; the purpose of the public hearing was to hear public comments on the White Rock ordinances. The June 17, 2010, public hearing was held.

On July 7, 2010, Marler posted notice of a special session of the council to be held on July 15, 2010; the purpose of the special session was to read and discuss the White Rock ordinances and to vote on their adoption. At the July 15, 2010, special session, the council considered and voted on the White Rock ordinances, passing them.

On September 21, 2010, the circuit court held a status conference at which, the parties agree, the circuit court orally bifurcated the case into procedural due-process and substantive due-process issues. The parties also agree that the circuit court ordered the parties to file summary-judgment motions concerning the procedural due-process issues.

On October 11, 2010, Gibbons amended her complaint, alleging that the Town’s passage of the White Rock ordinances violated her procedural and substantive due-process rights; Gibbons also contested the Town’s passage of the 2009 amendment. Specifically, Gibbons alleged in her amended complaint that “the Planning Commission’s actions pursuant to Article 11 [of the Town’s zoning code, as amended by the 2009 amendment,] are violative of the relevant substantive and procedural due process standards and constitute actions beyond the Planning Commission’s statutorily created power.”

On May 24, 2011, the Town and the planning commission filed a motion for a summary judgment. On the same day, White Rock also filed a motion for a summary judgment. In their summary-judgment motions, the appellees argued, among other things, that the Town’s zoning code complies with Alabama law. Specifically, the appellees argued:

“Alabama law vests the Planning Commission with the power to recommend zoning changes, the Town Council with the power to enact zoning ordinances, and the [ZBA] only with the power to grant special exceptions to existing zoning. Ms. Gibbons’s claim that the [ZBA] has jurisdiction in this case is incorrect for this reason. The governmental power used in this case was the power to rezone. Alabama law allows the Planning Commission to recommend and requires the Town Council to legislatively create the Special District for the Property. Alabama law does not allow a board of adjustment to rezone property.”

In her response to the appellees’ summary-judgment motions, Gibbons argued that Article 11 of the Town’s zoning code violated the zoning statutes in that Article 11 “improperly bestows the power to rezone property solely upon the Planning Commission, a framework that is clearly in contravention to Alabama law.” On May 25, 2011, Gibbons filed a motion for a summary judgment. The circuit court held a hearing on the summary-judgment motions on August 4, 2011.

On November 3, 2011, the circuit court granted the appellees’ summary-judgment motions, as follows:

“With the consent of the parties, this court undertook to consider cross-motions for summary judgment solely addressing all procedural issues raised by Plaintiff Anne Gibbons. Having considered the Joint Stipulation of the Parties, the parties’ motions for summary judgment and the supplemental materials, this court hereby denies Plaintiffs motion for summary judgment. With respect to Defendants’ motions the court finds that there is no genuine issue of material fact and that Defendants are entitled to judgment as a matter of law.
“Accordingly, the court hereby grants the motions for summary judgment filed by the Town of Vincent and White Rock Quarries, LLC,[] on all grounds asserted in those motions except for the substantive due process grounds set forth in ... the Town’s motion for summary judgment and ... White Rock’s motion for summary judgment. In so ruling, this court dismisses claims asserted by the plaintiff in: (a) Counts One, Two, Three and Five of the Complaint and the Amended Complaint; and (b) only those procedural claims in Count Four.
“The court expressly determines that there is no just reason for delay and the Clerk is directed to enter final judgment pursuant to Rule 54(b), Ala. R. Civ. P.
“Unadjudicated at this point, and remaining for trial, are the substantive due process claims as alleged in Count Four of the Amended Complaint which are set forth in paragraphs 39 through 43 and 47.”

Also on November 3, 2011, Gibbons filed a motion to dismiss her substantive due-process claims without prejudice. On December 14, 2011, the circuit court granted Gibbons’s motion to dismiss, thereby adjudicating all of Gibbons’s claims. Gibbons appealed.

Standard of Review

We set forth the standard of review applicable to our review of a summary judgment in Martin v. Cash Express, Inc., 60 So.3d 236, 244 (Ala.2010), as follows:

“ ‘In reviewing a summary judgment, an appellate court looks at the same factors that the trial court considered in ruling on the motion.... [0]n appeal a summary judgment carries no presumption of correctness.’ Hornsby v. Sessions, 703 So.2d 932, 938 (Ala.1997).
“ ‘In reviewing the disposition of a motion for summary judgment, we utilize the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue- of material fact and whether the movant was entitled to a judgment as a matter of law. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to present substantial evidence creating such an issue. Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” ’
“Ex parte General Motors Corp., 769 So.2d 903, 906 (Ala.1999) (citations omitted).
“ ‘Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant.’ Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).”

Discussion

First, Gibbons argues that the Town failed to comply with the notice requirement set forth in § 11-52-77(1), Ala. Code 1975, thereby rendering the 2009 amendment void. Section 11-52-77 provides, in pertinent part:

“No ordinance shall be passed by any municipal corporation under the authority of this article unless and until the municipal governing body has complied with the procedures set forth in ... subdivision (1) ... of this section.
“(1) Prior to adoption, the proposed ordinance shall be published in full for one insertion and an additional insertion of a synopsis of the proposed ordinance, one week after the first insertion, which synopsis shall refer to the date and name of the newspaper in which the proposed ordinance was first published; both such insertions shall be at least 15 days in advance of its passage and in a newspaper of general circulation published within the municipality, or, if there is no such newspaper, then by posting the proposed ordinance in four conspicuous places within the municipality, together with a notice stating the time and place that the ordinance is to be considered by the municipal legislative authorities and stating further that at such time and place all persons who desire shall have an opportunity of being heard in opposition to or in favor of such ordinance.”

Gibbons argues that the Town failed to comply with the requirement of § 11-52-77(1) that notice of the 2009 amendment be posted at least 15 days in advance of its passage. Specifically, Gibbons argues that the Town’s September 9, 2009, notice of the regular meeting of the council at which the 2009 amendment was to be considered was posted only 13 days in advance of the council’s passage of the 2009 amendment on September 22, 2009.

The appellees argue that, although the September 9, 2009, notice was posted only 13 days before the council’s adoption of the 2009 amendment at its regular meeting on September 22, 2009, notice of the 2009 amendment was initially posted on August 11, 2009. The August 11, 2009, notice indicated that the council would discuss the 2009 amendment at a public hearing to be held on September 1, 2009, and that public comment would be heard at that public hearing concerning the 2009 amendment. The appellees argue that the August 11, 2009, notice, which was posted 43 days before the council adopted the 2009 amendment on September 22, 2009, was sufficient to satisfy the requirement in § 11-52-77(1) that notice of the proposed ordinance be posted at least 15 days before passage of a zoning ordinance. We agree.

Gibbons’s argument ignores the fact that the Town posted notice on August 11, 2009, indicating that the council, the Town’s legislative body, would hold a public hearing on the 2009 amendment on September 1, 2009. Nothing in § 11-52-77(1) requires the Town to post a 15-day notice of every meeting held concerning the 2009 amendment. Instead, § 11-52-77(1) requires that notice of the 2009 amendment be posted at least 15 days before the adoption of the 2009 amendment, which the Town accomplished by posting notice of the 2009 amendment on August 11, 2009, 43 days before its adoption by the council at its regular meeting on September 22, 2009. Therefore, the Town complied with the notice requirement of § 11-52-77, and we affirm the circuit court’s judgment insofar as it held that the Town’s adoption of the 2009 amendment complied with the notice requirements in the zoning statutes.

Gibbons also argues that the Town’s passage of the ordinance annexing the 86 acres into the Town’s corporate limits violated the notice requirements of § 11-52-77. Gibbons argues that the Town’s zoning code, as amended by the 2009 amendment, “providefs] that when a property is annexed into the Town it is, by ordinance, rezoned to A-l, one of the Town’s statutorily created zoning classifications .... Thus, the Annexation Ordinance, if valid, effected a rezoning and therefore must comply with the fifteen (15) day notice requirement in section 11-52-77.” Gibbons’s brief, at pp. 36-37. We disagree.

Gibbons’s argument is based upon a faulty premise. Article IV, § 4, of the Town’s zoning code provides that, “[u]n-less initially classified, any property hereafter annexed to the town shall be classified A-l Agricultural District.” (Emphasis added.) The zoning ordinance annexing the 86 acres into the Town’s corporate limits specifically provides “that upon annexation, the [86 acres] will without further action be zoned and become a part of the Special District — Other Uses (Industrial) zoning district and be subject to all provisions of [the rezoning ordinance].” The 86 acres was not rezoned but, pursuant to the Town’s zoning code, was annexed into the Town’s corporate limits as a part of the special district. Therefore, Gibbons’s argument that the 86 acres was rezoned and thus subject to the notice requirements of § 11-52-77 fails.

Next, Gibbons argues that “the rezoning procedures set forth in the [Town’s] 2009 zoning code violate Alabama law.” Gibbons’s brief, at p. 24. Specifically, Gibbons argues that Article 11 of the Town’s zoning code contravenes the zoning statutes in that Article 11 of the Town’s zoning code grants the planning commission, which is not the Town’s legislative body, the authority to rezone property. Section 11.1 of Article 11 provides:

“Section 11.1 Requirements for change.
“Whenever the public necessity, convenience, general welfare, or good zoning practice warrants such action, the Planning Commission may amend, supplement, modify, or repeal the regulations or zoning district boundaries herein established.”

Gibbons argues that the Town’s zoning code violates the zoning statutes because, under the zoning statutes, a municipality’s legislative body has the sole authority to rezone property and a planning commission may act only in an advisory capacity. As a result, Gibbons argues, the Town has failed to enact a zoning code allowing it to rezone property.

The Town argues that, regardless of § 11.1, § 5.14.5 complies with the zoning statutes by enabling the council, the Town’s legislative body, to rezone property. The Town argues that § 5.14.5, which states in pertinent part that “[t]he location [of a special district] shall be recommended by the Planning Commission and approved by the Town Council,” properly authorizes the council to rezone property. Gibbons argues in response that § 5.14.5 does not vest the council with the authority to rezone property. We agree with the Town.

In Ball v. Jones, 272 Ala. 305, 309-10, 132 So.2d 120, 123 (1961), this Court held:

“A city or municipal corporation does not have the inherent power to enact and enforce zoning regulations. White v. Luquire Funeral Home, 221 Ala. 440, 129 So. 84 [ (1930) ]; Leary v. Adams, 226 Ala. 472, 147 So. 391 [ (1933) ]; Alabama Alcoholic Beverage Control Board v. City of Birmingham, 253 Ala. 402, 44 So.2d 593 [ (1950) ]. Municipal corporations were granted the power and authority to enact comprehensive zoning ordinances under Code 1940, Tit. 37, §§ 772-773.[] This court in Marshall v. City of Mobile, 250 Ala. 646, 35 So.2d 553 [ (1948) ], recognized the well-known rule that municipal authorities act in a legislative capacity in the enactment of zoning ordinances. Also, the amendment to a comprehensive zoning ordinance or a rezoning of a certain area ... becomes a part of the existing comprehensive ordinance and, a fortiori, is a legislative act. Phillips v. City of Homewood, 255 Ala. 180, 50 So.2d 267 [ (1951) ].”

Further, in Ferraro v. Board of Zoning Adjustment of Birmingham, 970 So.2d 299, 303 (Ala.Civ.App.2007), the Alabama Court of Civil Appeals held:

“In Alabama, like many other states, cities[ ] and other municipal corporations do not have the inherent power to enact and enforce zoning regulations. Swann v. Board of Zoning Adjustment of Jefferson County, 459 So.2d 896, 898 (Ala.Civ.App.1984). Municipal corporations in Alabama do have the power to enact comprehensive zoning ordinances under enabling acts passed by our legislature, but any ‘zoning ordinances which are enacted under this delegated legislative authority must be enacted pursuant to, and in substantial conformity with, the enabling act.’ Id. (citing Lynnwood Prop. Owners v. Lands Described in Complaint, 359 So.2d 357 (Ala.1978)).”

Section 11-52-70, Ala.Code 1975, allows a municipality to adopt “such ordinances as necessary to carry into effect and make effective the provisions of this article,” thereby vesting the municipality with the legislative authority to zone land within its corporate boundaries. Further, § 11-52-71, Ala.Code 1975, allows only the “local legislative body” to “divide the municipality into districts .... ” In order for a municipality to invoke the authority granted it by the legislature, the municipality’s legislative body must pass a valid zoning ordinance effecting provisions of the zoning statutes, thereby enabling the municipality’s legislative body to rezone property.

Consistent with our precedent, the parties agree that a planning commission can act only as an advisory body. In Peebles v. Mooresville Town Council, 985 So.2d 388 (Ala.2007), this Court held that, pursuant to the zoning statutes, a planning commission is an advisory body and cannot be vested with the power to rezone property:

“Under § 11-52-76, Ala.Code 1975, the zoning power delegated to every municipality ultimately rests with the legislative body of that municipality, i.e., the city or town council — not the zoning commission or the municipal planning commission. See § 11-52-76, Ala.Code 1975 (‘The legislative body of such municipality shall provide for the manner in which such [zoning] regulations and restrictions and the boundaries of such districts shall be determined, established and enforced and from time to time amended, supplemented or changed and may adopt such ordinances as may be necessary to carry into effect and make effective the provisions of this article.’). A municipality is required to organize neither a zoning commission nor a municipal planning commission before enacting a comprehensive zoning ordinance. Both such commissions are optional and, even if created, are strictly advisory. See, e.g., Rose v. City of Andalusia, 249 Ala. 333, 335, 31 So.2d 66, 66 (1947) (‘It is not mandatory that a zoning commission be appointed, although such a commission may be designated. ...’); and City of Mobile v. Karagan, 476 So.2d 60, 62-63 (Ala.1985) (‘[T]he City [of Mobile], within the context of the zoning ordinance and within the limits imposed by the Code, has the ultimate authority to rezone, and the Planning Commission, in consideration of a rezoning amendment, is an advisory body only. The Planning Commission can recommend to the City what it thinks should be done, but it cannot pass finally on an application to rezone. The City is not bound by a recommendation of the Planning Commission.’).”

Peebles, 985 So.2d at 397. Further, in Fleetwood Development Corp. v. City of Vestavia Hills, 282 Ala. 439, 442, 212 So.2d 693, 694 (1968), this Court stated:

“As noted in 58 A.L.R.2d 1086:
“ ‘While it is clear that certain functions in the execution of zoning plans can and must be entrusted to administrative boards or officers, it is equally clear that the power to zone, as such, involves legislative functions which cannot be so delegated under constitutional principles of separation of governmental powers.’ ”

See also W.E. Shipley, Attack on Validity of Zoning Statute, Ordinance, or Regulation on Ground of Improper Delegation of Authority to Board or Officer, 58 A.L.R.2d 1083, 1089 (“It has frequently been held that the legislative body may not delegate to administrative officials the power to establish zones or zone boundaries, since this power is of the essence of the legislative function.”).

Consistent with the zoning statutes, the Town enacted § 5.14.5 enabling the council, the Town’s legislative body, to rezone property within the Town’s municipal limits as a special district. Section 5.14.5 properly recognizes the planning commission as an advisory body by limiting its function to recommending the location of the proposed special district. Under § 5.14.5, the council, after receiving a recommendation from the planning commission, may then rezone the at-issue property to a special district by approving the planning commission’s recommendation, which is what occurred in this case. Pursuant to § 5.14.5, the planning commission recommended that the property be rezoned as a special district and the council approved the planning commission’s recommendation, thereby rezoning the property. The Town complied with the zoning statutes by adopting § 5.14.5, which enables the council to rezone property as a special district.

Based on our holding that the Town’s enactment of § 5.14.5 properly authorized the council to rezone property as a special district and that the Town’s rezoning of the land, as well as the adjacent 86 acres annexed by the Town, as a special district was proper under § 5.14.5, we need not determine whether the remainder of the Town’s zoning code complies with the zoning statutes.

Lastly, Gibbons argues that “the Town’s purported rezoning of the 86 acres was void ab initio.” Gibbons’s brief, at p. 34. Gibbons argues that the Town failed to comply with § 11-52-85, Ala.Code 1975, which authorizes a municipality to pre-zone property that is in the process of being annexed into that municipality’s corporate limits. Specifically, Gibbons argues that the Town did not comply with § 11-52-85(d), which provides:

“(d) Nothing contained in this section shall allow a municipality to zone territory outside the corporate limits of the municipality that is not in the process of being annexed into the corporate limits of a municipality as provided by law.”

White Rock filed the rezoning application, which included a request to rezone the adjacent 86 acres, on October 21, 2009. On March 23, 2010, the planning commission unanimously agreed to recommend that the council approve the rezoning application. On April 6, 2010, White Rock filed the annexation petition to annex the adjacent 86 acres into the Town’s corporate limits. Gibbons argues that because the planning commission agreed to recommend that the council approve the rezoning application before White Rock filed the annexation petition, the annexation process relating to the adjacent 86 acres had not yet begun and, thus, the Town failed to comply with § ll-52-85(d).

We disagree. The process of annexing the 86 acres into the Town’s corporate limits began when White Rock filed the annexation petition on April 6, 2010. Although White Rock filed its rezoning application before the annexation process began, the Town did not pre-zone the 86 acres until it passed the White Rock ordinances on July 15, 2010, which was after the annexation process began on April 6, 2010. Therefore, we hold that the Town complied with § 11-52-85 by pre-zoning the 86 acres after the annexation process began.

Conclusion

Based on the foregoing, we affirm the circuit court’s judgment.

AFFIRMED.

MALONE, C.J., and WOODALL, STUART, BOLIN, SHAW, MAIN, and WISE, JJ., concur.

MURDOCK, J., concurs in the result.

      . At all times relevant to this appeal, the members of the planning commission were Mary Lee Reynolds, Don Driggers, Ernest Kidd, Evelyn Finn, Jim Hairston, and Marsh Acker; Robert Malone was appointed to the planning commission in June 2010.

      . Gibbons has not challenged the content of any of the notices posted by the Town, only the timeliness of the notices. Therefore, we are not including any facts concerning the content of the notices or where the notices were posted.

      . The council is composed of five members who are elected by district; at the time of the adoption of the 2009 amendment, those members were Johnny Edwards, Ralph B. Kimble, Jr., Larry King, Bridgette Jordan Smith, and Mary Lee Reynolds. The mayor of the Town is also a member of the council, which is the Town's municipal legislative authority.

      .The Town and the planning commission allege in their brief on appeal that the Town has a validly created "Zoning Board of Adjustment that can hear appeals, grant variances to the zoning code, and allow special exceptions to the zoning code.” The Town and the planning commission’s brief, at p. 6. The Town and the planning commission cite the parties’ joint stipulation of facts in support of this assertion. Although the valid creation of the Town’s Zoning Board of Adjustment ("the ZBA’’) was disputed by Gibbons in the parties’ joint stipulation of facts, in her brief on appeal Gibbons does not dispute the validity of the ZBA, but appears to concede that it was validly created. See Gibbons's brief, at pp. 10, 30-32.

      . Section 5.14.5 of the Town's zoning code provides:
      “5.14.5 Other Uses
      "Uses not covered in other sections. Special Districts for uses not covered elsewhere in this ordinance and which are generally of a nature so as to be incompatible with most permitted uses may be allowed in any district except the ‘R’ district. The location shall be recommended by the Planning Commission and approved by the Town Council. In addition, a complete development plan and any other information pertinent to the development or use shall be included at the discretion of the Planning Commission. Such uses may include but are not limited to the following:
      ”1) Airport or landing field
      ”2) Mausoleum
      ”3) Commercial, recreational or amusement development for temporary or seasonable periods.
      ”4) Sanitary landfill operation
      "5) Practice golf driving range, par three golf course or miniature golf course.”

      . Section 5.5 of the Town's zoning code, entitled "Unclassified Uses,” provides:
      "In the event the Town of Vincent receives an application for permitting of a use that is not listed or that cannot appropriately fit in a district listed [in Section 5.1 of the Town’s zoning ordinance], the following procedure shall apply:
      "If compatible with the existing use district intent, the unclassified use may be permitted as a special exception by the Board of Adjustment pursuant to Article 14.
      "If the unclassified use would not be compatible with the intent of the existing use district, the Planning Commission shall make a determination of the most appropriate use district and require the applicant have the property rezoned, and special exception granted by the Board of Adjustment pursuant to Article 14 before granting approval.
      “Following final action of the unclassified use per above paragraphs, the Planning Commission may initiate an amendment to this ordinance to list the newly permitted use in the most appropriate district(s).”

      . The circuit court later amended its November 3, 2011, final judgment to include the planning commission, whose omission was the result of a clerical error.

      . As mentioned previously, Gibbons did not challenge below and does not challenge on appeal the form of or the manner in which notice of the Town’s consideration of the 2009 amendment was posted. We assume there is no “newspaper of general circulation” published within the Town and that, therefore, publication by posting is all that was required.

      . Alabama Code 1940, Tit. 37, § 772 et seq., ís the predecessor to the zoning statutes.


author: THOMAS, Judge.

text:
    Donald WHITE v. Phyllis WHITE.
    2111060.
    Court of Civil Appeals of Alabama.
    April 12, 2013.

      Monica Austin-Hatcher of Hatcher Law Office, Birmingham, for appellant.
    Richard C. Perry of Eversole Law, LLC, Birmingham, for appellee.
   THOMAS, Judge.

Donald White (“the husband”) and Phyllis White (“the wife”) were married on August 4, 2007. On December 5, 2011, the wife filed a complaint in the Jefferson Circuit Court seeking a divorce, a division of the marital assets and debts, and an award of attorney fees. There are no children of the marriage.

On December 12, 2011, the wife filed a petition in the circuit court seeking a protection-from-abuse (“PFA”) order pursuant to Ala.Code 1975, § 30-5-1 et seq., alleging that the husband had restrained her, had injured her, and had made her afraid that he would injure her again. She requested an order requiring the husband to move out of the marital residence and to stay away from the marital residence, prohibiting the husband from disposing of her personal property, and awarding attorney fees.

On December 15, 2011, the circuit court issued an ex parte PFA order forbidding the husband from having any contact with the wife and from disposing of the wife’s personal property. It ordered the husband to move out of the marital residence and to stay away from the marital residence and the wife’s place of employment. In an amended order, the circuit court required the husband to surrender his firearm to the police. A hearing on the wife’s PFA petition was scheduled for January 3, 2012, after which the circuit court entered a temporary order on January 6, 2012, extending the PFA order pending the entry of further orders of the circuit court.

Apparently, another hearing on the PFA petition was held on January 25, 2012, because, on February 7, 2012, the circuit court entered a second temporary order, in which it ordered that the PFA order remained in effect pending the entry of further orders of the circuit court. The February 7, 2012, PFA order included the circuit court’s finding that “[the husband] became disruptive in the Courtroom, and acted in a threatening manner toward [the wife] and the Court’s bailiff.”

After one continuance, the trial in this matter began on May 30, 2012; however, the circuit court’s order, entered that same day, reveals that the husband had informed the court that he became ill after the trial began and that an ambulance was called to transport the husband to a hospital. The circuit court’s order required that if the husband was released from the hospital that same day, he was to immediately return to the circuit court and, if not, that the trial would resume on June 6, 2012.

The trial resumed on June 6, 2012, at which time the husband appeared pro se. There is no transcript of the trial; however, on June 15, 2012, the circuit court entered a judgment divorcing the parties, ordering that the PFA order remain in effect, and dividing the marital assets and debts. That same day, the circuit court entered a contempt judgment against the husband, which provides, in pertinent part:

“1. That the [husband] is held in direct contempt of Court for his behavior during two trial settings. Testimony in Open Court was that the [husband] had every intention of coming into Court to defame this Judge, demand the Court’s recusal, and delay these proceedings for as long as possible.
“2. The [husband] refused to sit down in Open Court, and refused to participate in the trial of this matter.
“3. During the previous trial setting on January 25, 2012, the [husband] left the witness stand and stomped out of the Court, refusing to answer questions.
“4. The [husband] was disrespectful, belligerent, and defiant in Open Court on both occasions.
“5. The [husband] is sentenced to imprisonment in the Jefferson County Jail for 10 days which represents five days for the two occasions in which he exhibited a total lack of respect for this Court and the proceedings.
“6. The Sheriff of Jefferson County is directed to serve a copy of this Order upon the [husband,] and take him into custody forthwith.
“7 The Sheriff of Jefferson County is directed to release the [husband] when he has served his ten-day sentence.
“8. The Sheriff of Jefferson County is further ordered to submit a cost bill to the Clerk of this Court for the [husband]’s incarceration, and [husband] shall be responsible for payment of all such costs.”

(Emphasis added.)

The husband did not file a postjudgment motion. He timely appealed to this court on July 26, 2012, seeking this court’s review of three issues: whether the circuit court erred by failing to grant his request for a continuance at the start of the trial on June 6, 2012, whether the circuit court erred by resuming the June 6, 2012 trial, in the husband’s absence after the circuit court held him in direct contempt and placed him in the bailiffs custody, and whether the circuit court erred by holding the husband in direct contempt for his behavior in court on January 25, 2012.

The majority of the argument and recitation of the “facts” in the husband’s brief to this court is founded upon assertions included in his affidavit, which is appended to his brief; however, we are precluded from considering the husband’s affidavit that is not part of the record. See Goree v. Shirley, 765 So.2d 661, 662 (Ala.Civ.App.2000) (explaining that a record on appeal cannot be supplemented or enlarged by the attachment of an appendix to an appellant’s brief). Furthermore, as the wife points out, the record does not contain a transcript of the ore tenus evidence presented at the June 6, 2012, trial or a statement of the evidence presented at trial, pursuant to Rule 10(d), Ala. R.App. P.

“ ‘An appellate court is confined in its review to the appellate record, that record cannot be “changed, altered, or varied on appeal by statements in briefs of counsel,” and the court may not “assume error or presume the existence of facts as to which the record is silent.” Quick v. Burton, 960 So.2d 678, 680-81 (Ala.Civ.App.2006). Accordingly, when, as in this case, “oral testimony is considered by the trial court in reaching its judgment and that testimony is not present in the record as either a transcript or Rule 10(d), A[la]. R. A[pp]. P., statement, it must be conclusively presumed that the testimony [was] sufficient to support the judgment.” Rudolph v. Rudolph, 586 So.2d 929, 980 (Ala.Civ.App.1991).’
“Beverly v. Beverly, 28 So.3d 1, 4 (Ala.Civ.App.2009).”

McMichael v. McMichael, 71 So.3d 678, 688 (Ala.Civ.App.2011). Thus, there is no evidence in the record indicating that the husband requested a continuance at the beginning of the June 6, 2012, trial or, if he did, the reason for such a request. Furthermore, there is no evidence in the record indicating that the circuit court placed the husband in the custody of a bailiff and completed the June 6, 2012, trial in the husband’s absence.

“‘“An appellate court does not presume error; the appellant has the affirmative duty of showing error. Perkins v. Perkins, 465 So.2d 414 (Ala.Civ.App.1984). Appellate review is limited to the record and cannot be altered by statements in briefs. Bechtel v. Crown Central Petroleum Corp., 451 So.2d 793 (Ala.1984). Error asserted on appeal must be affirmatively demonstrated by the record. If the record does not disclose the facts upon which the asserted error is based, the error may not be considered on appeal. Liberty Loan Corp. of Gadsden v. Williams, 406 So.2d 988 (Ala.Civ.App.1981).”
‘Greer v. Greer, 624 So.2d 1076, 1077 (Ala.Civ.App.1993).’
“Dudley v. Dudley, 85 So.3d 1043, 1048 (Ala.Civ.App.2011).”

McCaw v. Shoemaker, 101 So.3d 787, 793 (Ala.Civ.App.2012). The record does not support the husband’s assertions in his appellate brief that, at the June 6, 2012, trial he had requested a continuance, that the circuit court had denied such a request, or that the circuit court resumed the June 6, 2012, trial after the husband was held in direct contempt and removed from the proceeding. Thus, the husband has failed to demonstrate error to this court regarding those issues; therefore, the judgment of divorce is affirmed.

However, the record supports the conclusion that the circuit court erred insofar as it held the husband in direct contempt for his behavior in court on January 25, 2012. Rule 70A(a)(2)(A), Ala. R. Civ. P., defines “direct contempt” as

“disorderly or insolent behavior or other misconduct committed in open court, in the presence of the judge, that disturbs the court’s business, where all of the essential elements of the misconduct occur in the presence of the court and are actually observed by the court, and where immediate action is essential to prevent diminution of the court’s dignity and authority before the public.”

Upon its finding of direct contempt, a court must immediately notify the contem-nor of its finding and prepare, sign, and enter an order that includes a description of the conduct observed. See Rule 70A(b)(l). The contemnor must have a reasonable opportunity to present evidence that would excuse or mitigate his or her behavior. See Rule 70A(b)(2). Furthermore, a court must pronounce its sentence either immediately or within seven days of the completion of the proceeding out of which the contempt arose. See Rule 70A(b)(3).

On June 15, 2012, the circuit court entered its judgment that, in part, found the husband in direct contempt due to his behavior at the January 25, 2012, proceeding. The record does not support a determination that the circuit court notified the husband of its finding of contempt immediately or within seven days of January 25, 2012. Instead, the record demonstrates that the husband’s sentence of five days’ imprisonment in the county jail for his conduct at the January 25, 2012, proceeding was imposed on June 15, 2012, which is more than seven days after the January 25, 2012, proceeding. Therefore, we reverse the June 6, 2012, contempt judgment insofar as it held the husband in direct contempt for his behavior at the January 25, 2012, proceeding and remand the cause to the circuit court with instructions to vacate that portion of its June 15, 2012, contempt judgment.

JUDGMENT OF DIVORCE AFFIRMED; JUDGMENT OF CONTEMPT REVERSED IN PART; AND CAUSE REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and PITTMAN, MOORE, and DONALDSON, JJ., concur.

      . The wife received the marital residence, four vehicles, and any assets and debts that were in her name. The husband received any assets and debts that were in his name. The circuit court awarded the wife $8,678 in attorney fees. The issue of alimony was reserved for future consideration. To the extent that the husband contests the property division in the divorce judgment, we cannot conclude that the evidence included in the record supports a reversal of that aspect of the divorce judgment. The husband makes a brief assertion that the property division is inequitable; however, he does not develop an argument as to that issue. Instead, he focuses his arguments concerning the propriety of the divorce judgment on the contention that he was not afforded due process because he acted pro se at the June 6, 2012, trial and was "removed” and "incarcerated” before he could offer his testimony. This court does not presume error, and there is no evidence in the record indicating that the husband's assertions in his brief are accurate. See discussion infra.

        . Rule 10(d), Ala. R.App. P., entitled "Statement of the Evidence or Proceedings When No Report Was Made or When a Transcript Is Unavailable,” provides, in pertinent part:

        "If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection.... The statement, either as approved by the court or as issued by the court after its ruling, shall be filed with the clerk of the trial court, who shall include it in the record on appeal."

      . In his reply brief, the husband responds to the wife’s assertion that the contempt issue is moot by asserting that the contempt issue is not moot because he has been "directed to pay a fine” as a part of the sentence imposed for his contemptuous behavior at the January 25, 2012, proceeding. We agree with the husband that the contempt issue is not moot for that reason. Additionally, although the husband has failed to raise an issue regarding the amount of the "fine” on appeal, we note that there is no provision empowering a court of this state to require a contemnor to pay the cost of his or her incarceration; rather, a court may punish a contemnor with a fine of no more than $100 for each instance of contempt. See Ala.Code 1975, § 12-11-30(5).