author: IRVING, P.J., for the Court:

text:
    Leslie B. SHUMAKE, Jr., Appellant v. Katarina Sitton SHUMAKE, Appellee.
    No. 2012-CA-00718-COA.
    Court of Appeals of Mississippi.
    Nov. 26, 2013.
    Rehearing Denied April 8, 2014.

      Sabrina D. Howell, A.E. (Rusty) Harlow Jr., attorneys for appellant.
    T. Jackson Lyons, Jackson, attorney for appellee.
    Before IRVING, P.J., ISHEE and FAIR, JJ.
   IRVING, P.J., for the Court:

¶ 1. On April 12, 2012, pursuant to a request for modification of alimony, the Desoto County Chancery Court reduced Leslie B. Shumake Jr.’s monthly alimony payments to Katarina Sitton Shumake from $5,750 to $3,250 until Leslie finished with his Chapter 13 bankruptcy plan, at which time the monthly alimony payment would increase to $4,225. Additionally, the chancery court ordered Leslie to pay $58,550 in back alimony and $13,361.50 to his daughter, Rachel, for money that Leslie had withdrawn from the MPACT college fund that he had set up for her. Payments on the alimony arrearage and reimbursement of the MPACT fund were suspended until Leslie completed his bankruptcy plan, at which time he would begin making monthly payments of $1,500 toward the alimony arrearage and $500 as reimbursement of the MPACT fund.

¶ 2. Feeling aggrieved, Leslie appeals and argues that the chancery court: (1) failed to take into account all of his income and expenses in setting the current alimony amount; (2) erred in ordering future alimony; (3) erred in finding that he was in arrears on his alimony payments in the amount of $58,550; (4) erred in ordering him to pay $500 per month to reimburse Rachel for the MPACT fund; and (5) erred in ruling on the case almost one year from the date of the hearing.

¶ 3. We affirm the judgment modifying Leslie’s alimony obligation. However, we find that the court erred in ordering Leslie to pay $58,550 in arrearage, as well as ordering him to reimburse Rachel $13,861.50 for money withdrawn from the MPACT fund. Therefore, we reverse and render that portion of the judgment.

FACTS

¶ 4. In its final judgment of divorce filed on February 20, 2009, the chancery court ordered Leslie to pay Katarina $5,750 per month, or $1,326.93 per week, in periodic alimony. On February 27, 2009, Leslie filed a motion for reconsideration, or, in the alternative, a new trial pursuant to Rule 59 of the Mississippi Rules of Civil Procedure, which the chancery court did not rule on immediately. On March 12, 2009, Katarina filed a complaint for citation for contempt, claiming that Leslie had not been paying the amount of alimony that the court had ordered. Leslie had never paid the amount ordered in the February 20, 2009 judgment of divorce and had been paying only $650 per week, or $2,816.66 per month, since then. Leslie filed an answer and counterclaim for contempt and a complaint for modification in which he claimed that it was impossible for him to pay the amount of alimony ordered by the court. Additionally, he alleged that Katarina had not “complied with the provisions of the court’s findings of fact and conclusions of law.” He also asserted that a material change in circumstances had occurred because he had been “forced” to file for bankruptcy on February 19, 2009, and that there was a need to modify the divorce decree.

¶ 5. On April 8, 2009, the chancery court entered an order denying Leslie’s motion for reconsideration, and on April 14, 2009, Leslie filed a notice of appeal. After a hearing on Katarina’s complaint for citation for contempt and Leslie’s answer and counterclaim for contempt and for modification, the court entered an order on August 24, 2009, pretermitting the issue of reduction in alimony and continuing the matter for review in January 2010. It is noteworthy, however, that the chancery court did not hold Leslie in contempt for paying less alimony than he had been ordered to pay, and implicitly allowed him to continue paying the reduced amount. There is no record of the alimony issue being reviewed in January 2010, as promised by the chancellor. The parties agree that the matter of alimony was next addressed by the chancellor in an order entered November 12, 2010, although that order is not in the record. Despite the absence of the order, the docket reflects that an order was indeed entered on November 12, 2010. During the final hearing held in April 2011, the parties discuss a pertinent portion of the order, wherein the chancellor ordered Leslie to begin paying $750 per week, beginning September 2010. The parties agree that the November 12 order, as well as the August 2009 order, contains a statement or language indicating that the issue regarding alimony was not settled and would be reviewed by the chancellor at a later date.

¶ 6. On March 31, 2011, Katarina filed a second motion for citation for contempt, alleging that Leslie had not provided verification of the life-insurance policy or bank statements required by the judgment of divorce. Leslie filed an answer to the motion, and counterclaimed for contempt. In his answer and counterclaim, he denied Katarina’s allegations and claimed that Katarina had refused to pay bills that she was responsible for pursuant to the decree. A hearing on all motions was held on April 27, 2011, but the chancellor did not issue a final judgment until April 12, 2012, in which he ordered Leslie to pay Katarina $8,250 per month, or $750 per week, in permanent periodic alimony until his Chapter 13 bankruptcy-plan payments were completed. After his bankruptcy payments were completed, Leslie would pay permanent periodic alimony in the amount of $4,225 per month, or $975 per week. The court also found that Leslie was $58,550 in arrears on his alimony and ordered him to pay Katarina $1,500 per month following the completion of his bankruptcy payments. Additionally, the court ordered that, following the completion of his bankruptcy payments, Leslie should pay Rachel $500 per month until the $13,861.50 that Leslie removed from Rachel’s MPACT fund was paid in full.

¶ 7. Additional facts, as necessary, will be related in the analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

I. Alimony

¶ 8. “A chancellor’s findings of fact will not be disturbed unless [they are] manifestly wrong or clearly erroneous.” Lowrey v. Lowrey, 25 So.3d 274, 285 (¶ 26) (Miss.2009) (quoting Sanderson v. Sanderson, 824 So.2d 623, 625 (¶ 8) (Miss.2002)) (internal quotation marks omitted). “[T]he decision of whether to award alimony, and if so, what amount, is left to the chancellor’s discretion.” Dogan v. Dogan, 98 So.3d 1115, 1122 (¶ 11) (Miss.Ct.App. 2012) (citing George v. George, 22 So.3d 424, 427 (¶ 4) (Miss.Ct.App.2009)).

¶ 9. Leslie claims that when the chancellor set the original alimony amount of $5,750, he based the amount on Leslie’s income when Leslie had a thriving real-estate-law practice. Leslie argues that there has been a material change in circumstances and that it is impossible for him to pay that amount of alimony, as he has filed for bankruptcy. Leslie also argues that the reduction granted by the chancellor from $5,750 to $4,225 is still too high, based on his present income. He also argues that the chancellor committed reversible error by ordering that he pay an increased amount of alimony upon completion of his bankruptcy plan “without knowledge of the circumstances of either the Appellant or the Appellee when the Appellant’s bankruptcy plan is finished.” Additionally, he argues that the alimony amount should be further reduced to $350 per week so that he can maintain a reasonable standard of living.

¶ 10. “A chancellor has the authority to modify periodic alimony upon a finding of a substantial change in circumstances[.]” Holcombe v. Holcombe, 813 So.2d 700, 703 (¶ 11) (Miss.2002) (quoting McDonald v. McDonald, 683 So.2d 929, 931 (Miss.1996)) (internal quotation marks omitted). “The change in circumstance must not be anticipated by the parties at the time of the original decree.” Id. (citing Ivison v. Ivison, 762 So.2d 329, 334 (¶ 11) (Miss.2000)). “[S]imply filing for bankruptcy does not rise to the level of a substantial change without a finding by the chancellor that the filing was made in good faith.” Varner v. Varner, 666 So.2d 493, 497 (Miss.1995).

¶ 11. Leslie insists that he is paying a significant amount in bankruptcy payments that he was not having to pay at the time of the divorce. However, he filed for bankruptcy on February 19, 2009, the day before the judgment of divorce was entered. The chancellor noted that Leslie admitted that “all of the liability associated with his ... [bankruptcy [p]lan were debts known at the time of the divorce.” After reviewing Leslie’s bank statements from 2010, his Uniform Chancery Court Rule 8.05 Financial Declaration Form from 2009, and testimony from the parties, the chancellor found that Leslie’s income-generating capacity was substantial and, as stated, ordered that his monthly alimony payment be reduced from $5,750 to $3,250 until Leslie finished with his Chapter 13 bankruptcy plan, at which time the monthly alimony payment would increase to $4,225. We do not see any problem with the increase ordered by the chancellor, to commence upon termination of Leslie’s bankruptcy plan, as the increased amount was based on Leslie’s current disposable income. At that time, Leslie was paying $4,239.50 per month on his Chapter 13 bankruptcy plan. After completion of the bankruptcy plan payments, Leslie would be able to use a portion of the $4,239.50 to cover the $975 monthly increase in his alimony payment. As stated, chancellors are given wide discretion in setting alimony. We cannot say that the chancellor erred in ordering that Leslie’s monthly alimony payment be increased after, what Leslie considers, his greatest financial burden' — his bankruptcy payments — has been lifted. Nor can we say say that the chancellor’s findings were either manifestly wrong or clearly erroneous. Therefore, we find no error in the amount of alimony ordered. This issue is without merit.

II. Arrearage

¶ 12. Next, Leslie claims that the chancellor erred in determining that he was $58,550 in arrears on his alimony payments. He argues that “the sum of $58,550 [in] arrearage could only be arrived at if the court found that [Leslie] should have been paying ... $5,750 per month all along.” He insists that although he was initially ordered to pay $5,750 per month, he should not be held to that order because of two reasons. First, claiming inability to pay, he voluntarily reduced the payment to $2,816.66 per month or $650 per week, and the chancellor was made aware of it by Katarina’s complaint for citation of contempt, filed within a month of the judgment of divorce. Yet the chancellor did not hold him in contempt. Second, effective September 2010, the chancellor increased Leslie’s payments from $2,816.66 per month, or $650 per week, to $3,250 per month, or $750 per week. Leslie had been paying only $650 per week since the judgment of divorce.

¶ 13. In his August 24, 2009 order addressing Katarina’s first complaint for citation for contempt and Leslie’s response, the chancellor determined that Leslie’s alimony arrearage of $16,400 had been extinguished. The court did not find Leslie in contempt for paying only $650 per week and did not order him to comply with the judgment of divorce, which required a monthly alimony payment of $5,750. Instead, the court allowed Leslie to continue making the $650 weekly alimony payment and agreed to review the matter in January 2010. It is noteworthy that the August 2009 order stated that Leslie had agreed to dismiss his notice of appeal regarding the denial of his motion for reconsideration of the judgment of divorce ordering him to pay $5,750 per month in alimony. Thus, it is reasonable to conclude that the chancellor, while not formally reducing Leslie’s alimony payment, had determined that Leslie should not pay more than $650 per week, or $2,816.66 per month at that time, thus effectively temporarily reducing Leslie’s alimony payment to $650 per week.

¶ 14. The chancellor did not review the alimony issue in January 2010 as he declared he would in the August 2009 order. However, both parties agree that an order was entered on November 12, 2010, ordering Leslie to pay $750 per week beginning on September 6, 2010. Katarina alleges that because there was never a final determination on the issues of arrearage or of lowering the amount of alimony from $5,750 per month, the $750 per week was only a temporary weekly amount set by the court, and that as a result, the arrear-age should still be calculated based on the $5,750 per month that the February 2009 judgment of divorce ordered.

¶ 15. We acknowledge that the August 2009 order indicated that there would be a further review of the alimony-arrearage issue. It appears from the record that that review did not occur until sometime prior to September 2010, at which time the court increased Leslie’s alimony payment from $650 per week to $750 per week, or $3,250 per month, as reflected in the November 2010 order. By increasing Leslie’s alimony payment from $650 per week to $750 per week, it seems to us that the court was giving final approval of the voluntary reduction in payment that the court had allowed to continue by virtue of its August 2009 order. Therefore, on these unique facts, we find that it would be fundamentally unfair and unjust to charge Leslie with a $58,550 arrearage. Both parties agree that as of the date of the hearing on April 27, 2011, Leslie was current with his $750 weekly payments previously ordered by the court. Therefore, we reverse and render that portion of the chancery court’s April 2012 order requiring Leslie to pay $58,550 in arrearage.

Ill MPACT Fund

¶ 16. Leslie asserts that the chancellor erred in ordering him to pay Rachel $13,361.50 for an MPACT account that he cancelled, as Rachel had no ownership rights in the account. The MPACT account was a college-savings account for Rachel, who was twenty-five years old and not in college at the time of the divorce in 2009. Leslie cancelled the account in 2010 and claimed that he used the money to repay his mother for loans that she had given him. Although Rachel was the beneficiary of the account, it appears from the record that Leslie had ownership rights in the account, as he had the authority to cancel it. We note that Katarina did not mention this matter in any of her pleadings, and the chancellor cited no basis during the hearing or in his order for requiring Leslie to pay his adult daughter for removing money from an account in which she had no ownership rights. Therefore, that portion of the judgment ordering Leslie to pay Rachel the $13,361.50 that he removed from the MPACT account is reversed and rendered.

IV. Ruling Nearly One Year from the Date of the Hearing

¶ 17. Leslie argues that the chancellor erred in ruling on the matter nearly one year from the date of the hearing. In effect, he argues that he was prejudiced because the chancellor could not have made an effective ruling after allowing a substantial amount of time to pass. The hearing was held on April 27, 2011, and the order was issued on April 12, 2012. Leslie offers no authority that supports his argument. Therefore, he is procedurally barred from making this argument. See Edmonds v. Edmonds, 935 So.2d 980, 988 (¶ 22) (Miss.2006). Procedural bar notwithstanding, we find this issue is without merit.

¶ 18. Although Leslie claims that it is “impossible to insure that the court recalled testimony and exhibits after that length of time,” he does not prove that the court was actually unable to recall the testimony and exhibits from the case. There is also no indication in the record that the court was unable to recall the testimony and exhibits from the case. Therefore, we cannot find that the chancellor erred in issuing his order nearly one year after the hearing. This issue is without merit.

¶ 19. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT AND ONE-HALF TO THE APPELLEE.

LEE, C.J., ISHEE, ROBERTS, FAIR AND JAMES, JJ., CONCUR. GRIFFIS, P.J., AND MAXWELL, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. BARNES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., NOT PARTICIPATING.

      . In its findings of fact and conclusions of law, issued on January 26, 2009, the chancery court found that Leslie's historical annual income (from 1996 to 2007) was $171,648 per year. The court did not specify whether the figure was gross or net income, but it appears that it is gross.

      . The record reflects that the alimony arrear-age, as well as other debts that Leslie owed to Katarina at that time, had been eliminated when Leslie conveyed to Katarina his $16,250 interest in their former marital home and Leslie was given credit for $5,400, which Ka-tarina had removed from one of their trust accounts in June 2009.

      . This order is not in the record. However, the order was the result of a hearing that was held sometime before September 2010, even though it was not filed until November 2010.

      . The parties agree that if Leslie is not allowed any reduction in the amount of alimony for any period prior to April 27, 2011, his arrearage, based on the amount of alimony ordered in the judgment of divorce, totals $58,550.


source: Caselaw Access Project

author: BARNES, J., for the Court: GRIFFIS, P.J.,

license: Public Domain

text:
    Patrick O’Neal Savontrell MONTGOMERY, A Minor, By and Through Patrick Townsend, Father and Next Friend, Appellant v. MISSISSIPPI BAPTIST HEALTH SYSTEMS, Appellee.
    No. 2012-CA-01459-COA.
    Court of Appeals of Mississippi.
    April 1, 2014.
    Rehearing Denied July 22, 2014.
    Certiorari Denied Sept. 25, 2014.

      John R. Reeves, John Justin King, Jackson, attorneys for appellant.
    Eugene Randolph Naylor, Rex Morris Shannon III, Jackson, attorneys for appel-lee.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   BARNES, J., for the Court:

¶ 1. A complaint was filed in Hinds County Circuit Court against Mississippi Baptist Health Systems (MBHS) on January 5, 2001, alleging negligence in the medical care of Patrick O’Neal Savontrell Montgomery, a minor. The injury allegedly occurred on December 30, 1997. In 2008, an order was entered by the Hinds County Chancery Court, awarding custody of Montgomery to his natural father, Patrick Townsend, and allowing Townsend to intervene as a party and represent Montgomery’s interests in the circuit court suit. However, even though MBHS filed a motion to compel discovery on August 27, 2009, which the circuit court granted, no action of record was taken by Montgomery after 2008, except for a couple of responses to interrogatories.

¶ 2. Finally, on July 17, 2012, the case was called for a status update at a mandatory docket call on threat of dismissal for failure to prosecute. Since the email address of Montgomery’s counsel was not included in the mass docket notice, counsel did not get the notice of the hearing and did not attend the docket call. Consequently, on August 8, 2012, the circuit judge, sua sponte, entered an order of dismissal for failure to prosecute under Mississippi Rule of Civil Procedure 41(b). The order stated:

Having noted that there has been no action of record in this matter for over two and one-half (2½) years and otherwise being fully advised in the premises, the Court finds that pursuant to Hensarling v. Holly, 972 So.2d 716 (Miss.Ct.App.2007), it has authority to dismiss this action based upon Plaintiff’s clear record of delay in the prosecution of this matter.

This order by the circuit court “operate[d] as an adjudication upon the merits.” See M.R.C.P. 41(b) (Involuntary dismissal for failure to prosecute is “an adjudication upon the merits” unless otherwise specified.).

¶ 3. Montgomery filed a motion to reconsider on August 10, 2012, arguing that counsel would have attended the docket call had he received notice. Out of an abundance of caution, Montgomery then filed a notice of appeal with the Mississippi Supreme Court on September, 7, 2012. A hearing on the motion to reconsider was held on September 10, 2012, at which time the circuit judge learned that Montgomery had filed his notice of appeal. As a result, the circuit judge concluded, in his November 30, 2012 order, that the filing of the notice of appeal with the supreme court deprived him of jurisdiction over the matter, and he denied Montgomery’s motion, finding it “moot.” However, the circuit judge did note that had “jurisdiction remained in th[e] court,” he would have reinstated the matter.

¶ 4. Montgomery appeals, claiming that the circuit court abused its discretion in dismissing the case, and that it should have considered lesser sanctions. Upon review, we find that the circuit court erred in its determination that it did not have jurisdiction to rule on Montgomery’s motion to reconsider. Therefore, we reverse the circuit court’s judgment and remand for further consideration of the merits of Montgomery’s motion.

DISCUSSION

¶ 5. Although not raised by either party on appeal, we must discuss the circuit court’s finding that it did not have jurisdiction to consider Montgomery’s motion. Mississippi Rule of Appellate Procedure 4(d) provides, inter alia, that a timely motion under Mississippi Rule of Civil Procedure 59 to alter or amend a judgment suspends the time for filing a notice of appeal. The rule continues:

A notice of appeal filed after announcement or entry of the judgment but before disposition of any of the above motions is ineffective to appeal from the judgment or order, or part thereof, specified in the notice of appeal, until the entry of the order disposing of the last such motion outstanding.

The comment to Rule 4 further notes: “A notice filed before the filing of one of the specified motions or after the filing of a motion but before its disposition is, in effect, suspended until the motion’s disposition, whereupon the previously filed notice effectively places jurisdiction in the Supreme Court.”

¶ 6. On September 13, 2012, counsel for Montgomery aptly asserted in a letter to the circuit judge: “We believe it is appropriate to consider the appeal deadline tolled upon the filing of a motion to reconsider!,] and we believe the court should make a ruling on the motion, but we had to file the notice of appeal to be certain in protecting the rights of this child who is the plaintiff.” Montgomery timely filed what was, in effect, a motion to reconsider the judgment under Mississippi Rule of Civil Procedure 59(e). As a result, under Rule 4(d), Montgomery’s notice of appeal was “suspended” until the circuit court’s disposition of his motion to reconsider. Accordingly, we find that the circuit court had jurisdiction to consider the merits of Montgomery’s motion. The circuit court stated that if it had jurisdiction, it would reinstate the matter “out of an abundance of caution” and “allow it to proceed to trial” since Montgomery’s attorney did not receive notice of the docket call.

¶ 7. We reverse the circuit court’s judgment and remand this case for further proceedings on the merits of Montgomery’s motion for reconsideration.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE DIVIDED EQUALLY BETWEEN THE APPELLANT AND THE APPEL-LEE.

LEE, C.J., IRVING, P.J., ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. GRIFFIS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION.

GRIFFIS, P.J.,

dissenting:

¶ 9. The majority reverses the circuit court’s judgment and remands this case for further proceedings on Montgomery’s motion for reconsideration. I find that Montgomery waived this issue by his failure to raise this issue on appeal. Therefore, I respectfully dissent.

¶ 10. The circuit court dismissed this case by order dated July 19, 2012; the order was filed on August 8, 2012. On August 10, 2012, Montgomery filed a motion to reconsider or, in the alternative, reinstate the case. On September 7, 2012, Montgomery filed a notice of appeal. On November 30, 2012, the circuit judge entered an order that found Montgomery’s motion to reconsider moot and denied the motion. In the order, the circuit judge added that “if jurisdiction remained in this court, out of an abundance of caution, the court would reinstate this matter and allow it to proceed to trial.”

¶ 11. The majority acknowledges that its decision is based on an issue “not raised by either party on appeal.” Mississippi Rule of Appellate Procedure 28(a)(3) requires the appellant to “identify the issues presented for review.” The Rule also provides that “[n]o issue not distinctly identified shall be argued by counsel, except upon request of the court, but the court may, at its option, notice a plain error not identified or distinctly specified.” The majority apparently determines that this was plain error.

¶ 12. I am not willing to do so for two reasons that we often use to decide that a party has waived an issue on appeal. First, Montgomery chose not to raise the issue in this appeal. Second, Montgomery failed to cite any authority for this proposition.

¶ 13. The judgment before this Court is the November 30, 2012 order. In this order, the circuit court denied the motion to reconsider, finding the court did not have jurisdiction. In the appellant’s brief, Montgomery argues the issue as follows:

3. The Trial Court Has Indicated That Had it Retained Jurisdiction, it Would Reinstate the Case and Allow the Case to Proceed to Trial.
In its order denying Mr. Townsend’s motion to reconsider the court noted that Mr. Townsend’s counsel “contends he did not have notice of the docket call.... He states that he would have been at the docket call if he had received the notice.... [Ojut of an abundance of caution, the Court would reinstate this matter and allow it to proceed to trial.” (Clerk’s Paper’s pgs. 113-114). It is apparent that the trial court, knowing the reason counsel for Mr. Townsend did not appear at the docket call (counsel having not received notice of the docket call), desires that the case be reinstated and allowed to proceed to trial.

Montgomery did not file a reply brief.

¶ 14. This Court often holds that “[tissues raised for the first time on appeal are procedurally barred.” McNeese v. McNeese, 119 So.3d 264, 267 (¶ 34) (Miss.2013). Here, the issue was not even raised on appeal. Montgomery could have raised this issue, but did not. I find it inappropriate for this Court to reverse the circuit court on an issue not even raised by the appellant.

¶ 15. Next, this Court also often holds that the “[f]ailure to cite to relevant authority results in a waiver of the issue on appeal.” Bennett v. State, 933 So.2d 930, 953 (¶ 86) (Miss.2006). In his brief, Montgomery offers no legal authority to support the proposition that is cited. I am of the opinion that it sets dangerous precedent for this Court to reverse a circuit court on a matter that is not raised before this Court and where no legal authority is offered.

¶ 16. I find that Montgomery waived this issue by not raising it as an issue on appeal. I would consider the merits of the issues raised by Montgomery. For these reasons, I respectfully dissent..

      . We will refer to the plaintiff/appellant as "Montgomery” throughout the remainder of this opinion.


author: BARNES, J., for the Court:

text:
    Bernard HAYES, III a/k/a Bernard Hayes, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KA-00376-COA.
    Court of Appeals of Mississippi.
    June 10, 2014.
    Office of State Public Defender by Benjamin Allen Súber, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before IRVING, P.J., BARNES and FAIR, JJ.
   BARNES, J., for the Court:

¶ 1. A Harrison County Circuit Court jury found Bernard Hayes guilty of carjacking Courtney Varhol’s vehicle. The trial judge sentenced Hayes to fifteen years in the custody of the Mississippi Department of Corrections (MDOC), and ordered him to pay the victim $13,144 in restitution and any extradition costs. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. At approximately 9 p.m. on June 2, 2011, twenty-three-year-old Courtney Va-rhol was driving alone in her vehicle to her friend’s house in Biloxi, Mississippi. She decided to go through the drive-through at the Taco Bell in Gulfport, Mississippi. As she was waiting in line, she noticed a ma wearing a jacket walking through a grassy area between the drive-through and the road. When Varhol arrived at the speaker to give her order, the man got into her vehicle on the passenger side and said: “[I]f you scream I will f* * *ing kill you.” Varhol tried to get out of her vehicle, but the man pushed her out, telling her to “just get the f* * * out.” As she exited her vehicle, Varhol tried to grab her wallet, but the assailant punched her in the jaw. Varhol then let go of her wallet. The man drove off in her vehicle, jumping the curb and driving through the grass, heading south on Cowan Road.

¶ 3. In a state of shock, Varhol ran to the drive-through window and yelled at Taco Bell employee Kearra Sharpe to call 911, and report that her vehicle had been stolen. Gulfport Patrol Officer Ashley Ruiz happened to be at the Taco Bell, and was flagged down about the incident. She sent out a BOLO (“be on the lookout”) for a car matching the description of Varhol’s vehicle — a grey 2008 Nissan Altima with a personalized tag of CYOULKN. Officer Ruiz took the statements of Varhol and Sharpe, noting Varhol was visibly “very shaken up” about the carjacking.

¶ 4. Varhol described her assailant as a black male, approximately five feet eight inches tall, weighing 140 pounds, with “dread-like braids,” wearing a jacket, and with “some pretty red lipstick smeared across his face.” This description matched a description of an individual Officer Ruiz had encountered approximately thirty minutes prior to the incident, when she had received a “suspicious-person’s call” about an individual approximately one-half a mile west of the Taco Bell. Officer Ruiz described the individual as having “short, messy dreads,” wearing a light-pink t-shirt, capris, a brown jacket with fur on the cuffs and collar, and lipstick.

¶ 5. Gulfport Officer Walter Brightman was patrolling Highway 49 when the BOLO went out. He identified a vehicle matching the dispatch’s description with the personalized license plate “CYOULKN,” which was recklessly passing traffic. Officer Brightman turned on his blue lights and sirens, and engaged in pursuit. The vehicle was speeding at seventy to ninety miles per hour.

¶ 6. Biloxi Officer Jeff Quade, who works the night shift, was patrolling the west side of Biloxi that evening. He heard the BOLO about the vehicle, and identified a vehicle matching the Altima’s description traveling at a high rate of speed down Highway 90, with two flat tires and no headlights. Sparks were shooting off of the tire rims. Officer Quade began pursuing the stolen vehicle with his blue lights flashing, followed by Officer Brightman. The pursuit lasted two more miles, when the vehicle wrecked, leaving the roadway and nearly rolling over. The lone occupant of the vehicle fled on foot, dropping a jacket. He also attempted to throw a wallet over a fence. The wallet was later recovered. Officer Brightman tackled the suspect in a foot chase, and placed him in handcuffs. The individual apprehended was identified as Hayes.

¶ 7. A Harrison County jury returned an indictment against Hayes for carjacking. Hayes was extradited from the San Francisco, California Police Department to Harrison County, and pleaded not guilty to the charge. At trial, Hayes chose to represent himself with stand-by assistance from a public defender. Five witnesses testified for the State, including Varhol, Sharpe, and Officers Ruiz, Quade, and Brightman. Varhol positively identified Hayes as her assailant and the vehicle thief. Varhol’s wallet was entered into evidence and positively identified by Va-rhol, as was Hayes’s brown jacket.

¶ 8. Hayes testified on his own behalf. He told the trial court that he got into an argument with his girlfriend on the night of the incident. He left a house, walking the back roads, when he saw an unoccupied vehicle with the engine running. He jumped into the vehicle and drove to Biloxi. When he was on Highway 90, he noticed a “cop car” behind him, but he did not stop because he did not want to go back to jail, as he was recently released and on earned release supervision. Hayes continued driving the vehicle until the “tires popped.” He then exited the vehicle and ran. Hayes denied carjacking Va-rhol’s vehicle. He maintained he was not near the Taco Bell the evening of June 2.

¶ 9. After ten minutes of deliberating, the jury returned a verdict of guilty of carjacking. The trial judge sentenced Hayes to serve the maximum term of fifteen years in the custody of the MDOC. The trial court denied Hayes’s motion for a new trial and for acquittal notwithstanding the verdict. Hayes timely appeals, arguing the verdict was against the overwhelming weight of the evidence.

ANALYSIS

¶ 10. “A motion for [a] new trial challenges the weight of the evidence. A reversal is warranted only if the lower court abused its discretion in denying a motion for [a] new trial.” Dilworth v. State, 909 So.2d 731, 737 (¶ 20) (Miss.2005) (quoting Howell v. State, 860 So.2d 704, 764 (¶ 212) (Miss.2003)). The reviewing court will not disturb the verdict unless allowing “it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844( ¶ 18) (Miss.2005). The evidence will be viewed in the light most favorable to the verdict. Id. It is the jury’s role to assess the weight and credibility of the evidence and to resolve any conflicts in the evidence. Latiker v. State, 918 So.2d 68, 73 (¶ 12) (Miss.2005).

¶ 11. Hayes argues that the testimony presented at trial was “inconclusive and unsupportive of the conviction.” Hayes contends that even though he admitted to taking the vehicle, no motive was presented regarding Varhol’s injury. Further, he denied being at the Taco Bell the night in question, and denied taking the vehicle directly from Varhol. Instead, he claims he only took an abandoned, running vehicle. Hayes also complains that video footage from a nearby fast-food restaurant was not obtained, which he claims would have proven he was not at the Taco Bell. Additionally, there was no photo or in-person lineup shown to Varhol by law enforcement in order to identify Hayes.

¶ 12. Hayes was indicted under Mississippi Code Annotated section 97-3-117(1) (Rev.2006), which defines carjacking as follows:

Whoever shall knowingly or recklessly by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, or attempting to do so, or by any other means shall take a motor vehicle from another person’s immediate actual possession shall be guilty of carjacking.

The jury was instructed' on the necessary elements of carjacking. The weight’ of the evidence supporting the verdict was substantial. Varhol testified that she was certain Hayes was the individual who pushed her out of her vehicle after punching her in the jaw and threatening to kill her at the Taco Bell drive-through. She watched him drive off recklessly in her vehicle with her wallet. Hayes’s distinctive hair dreads, fur-lined jacket, and/or lipstick that he was wearing that evening were noted by Varhol, Sharpe, Officer Ruiz, and Officer Brightman. Varhol’s identification of Hayes matched the identification of a suspicious person Officer Ruiz had just encountered near the Taco .Bell. Hayes was seen by law enforcement speeding and driving recklessly throughout Gulfport and Biloxi in Varhol’s vehicle, with its personalized license plate. Officer Brightman chased Hayes by vehicle and on foot. He saw Hayes drop his jacket and attempt to throw a wallet, later identified as Varhol’s, over a fence. Both items were recovered and entered into evidence.

¶ 13. As there was a conflict in the testimony between the State’s five witnesses and Hayes’s version of the events, his involvement in the crime was a question for the jury, and the jury rejected Hayes’s version. “[T]he absence of physical evidence does not negate a conviction where there is testimonial evidence.” Graham v. State, 812 So.2d 1150, 1153 (¶ 9) (Miss.Ct.App.2002). The fact that during the criminal investigation certain video footage from a nearby fast-food restaurant was not obtained, or that there was no in-person or photographic-lineup identification of Hayes, does not negate the jury verdict. We conclude that allowing the verdict to stand does not sanction an unconscionable injustice.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF CARJACKING AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY RESTITUTION OF $13,144 AND EXTRADITION COSTS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


author: ROBERTS, J., for the Court:

text:
    Scote RENFRO, Appellant v. CITY OF MOSS POINT, A Body Politic & Its Civil Service, Appellee.
    No. 2013-CC-00359-COA.
    Court of Appeals of Mississippi.
    Aug. 12, 2014.
    Rehearing Denied Nov. 25, 2014.

      Tanya L. Hasbrouck, Robert Keith Miller, Pascagoula, attorneys for appellant.
    Amy Lassitter St. Pe’, Nathaniel Austin Bosio, Pascagoula, attorneys for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J., for the Court:

¶ 1. Scote Renfro appeals his termination as a police officer for the City of Moss Point, Mississippi (the City), for insubordination. The Moss Point Civil Service Commission (the Commission) found that the City acted in good faith when it terminated Renfro for cause. Renfro appealed to the Jackson County Circuit Court, which affirmed the Commission’s judgment. Renfro appeals and claims that there was not substantial evidence to support the Commission’s decision. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Renfro’s termination stemmed from events that occurred shortly after midnight on June 16, 2011. Renfro was off-duty at that time. Although he had been at his home, he “got bored, and decided to ride into Moss Point.” Renfro had a portable police radio with him.

¶ 3. Officer Ricky Guerrero was on duty that night. After responding to a burglary call, Officer Guerrero heard Renfro over the radio. According to Officer Guerrero, he heard his name, but initially he could not understand Renfro. When Renfro repeated himself, Officer Guerrero realized that Renfro was reporting that he had seen a drug transaction, and he wanted Officer Guerrero to arrest someone involved in the transaction. Officer Guerrero responded to the area that Renfro described.

¶ 4. After Officer Guerrero stopped his patrol car, Renfro drove his Ford F-250 pickup next to him. Officer Guerrero later testified that he did not see Renfro face to face. Renfro told Officer Guerrero that “he was going to go back by and see if the vehicle was still there.... He then departed, went back by [the house], and he informed [Officer Guerrero] on the radio that the vehicle was leaving.” Officer Guerrero followed the vehicle and stopped it. He arrested one of the occupants for misdemeanor possession of narcotics. Officer Guerrero later clarified that he had arrested the occupant for possession of “a couple pills.”

¶ 5. Officer Guerrero was concerned about the way Renfro sounded. According to Officer Guerrero, Renfro’s speech was slurred, and “he might have been intoxicated.” Officer Guerrero contacted Deputy Jackie Trussell of the Jackson County Sheriffs Department because he was a friend of Renfro’s. Officer Guerrero asked Deputy Trussell to tell Renfro that he needed to go home. The record is silent as to whether Deputy Trussell followed through with Officer Guerrero’s request.

¶ 6. Corporal Lance Shipman was also concerned by the way Renfro sounded over the radio. Corporal Shipman called Lieutenant Brandon Ashley and asked him to listen to Renfro. Lieutenant Ashley later reported that Renfro “was talking incoherent[ly] with slurred speech.” Lieutenant Ashley also reported that he thought Renfro “was under the influence of an unknown substance.”

¶ 7. Corporal Shipman went to the area where Renfro had been with Officer Guerrero, but he could not find Renfro. Corporal Shipman called Renfro and talked to him. According to Corporal Shipman, Renfro was hard to understand. When Corporal Shipman asked Renfro what he was doing, Renfro said that “he was doing something for [a] task force.” Corporal Shipman asked Renfro to meet with him, but Renfro declined. Renfro told Corporal Shipman that he was going home. But a short time later, Corporal Shipman heard Renfro requesting information regarding a Harrison County license plate.

¶ 8. Meanwhile, Corporal Shipman had received a call that a burglary was in process. Corporal Shipman responded to the call. He requested assistance from other officers, but the other two officers on duty had been tied up with Renfro’s report of a misdemeanor drug transaction. When Officer Guerrero was on his way to meet Corporal Shipman, Officer Guerrero was involved in a traffic accident. As a result, Corporal Shipman had to respond to the burglary without any backup. During a foot pursuit, someone tried to run over Corporal Shipman with a car, but he managed to avoid it.

¶ 9. At approximately 1:15 a.m., Corporal Shipman called Keith Davis, the Moss Point chief of police. Corporal Shipman told Chief Davis about the events that had transpired that night. Corporal Shipman also relayed his concern that Renfro sounded intoxicated over the radio. After he spoke to Corporal Shipman, Chief Davis called Renfro. Chief Davis agreed that Renfro’s speech was slurred. When Chief Davis asked where Renfro was, he said that he was on the couch in his apartment.

¶ 10. Chief Davis sent two officers to Renfro’s apartment with instructions to administer a portable breath test. Although the officers arrived within fifteen minutes of Renfro’s claim that he was in his apartment, Renfro did not answer his door. However, the officers noticed that Renfro’s Ford F-250 pickup truck was parked nearby, and the engine was still warm. Chief Davis tried to call Renfro again, but he did not answer the phone.

¶ 11. At approximately 8:00 a.m. the next morning, Chief Davis sent two more officers to Renfro’s apartment. Again, Renfro did not answer the door. The officers heard a phone ringing inside Renfro’s apartment. According to Chief Davis, he believed that Renfro only had a cell phone. Chief Davis then personally went to Ren-fro’s house, but he was still unable to contact Renfro.

¶ 12. Eventually, Chief Davis contacted Renfro by phone. Renfro claimed that he was at a friend’s house in Pascagoula, Mississippi. Chief Davis told Renfro to come to the police department. Renfro complied. He finally arrived at the police department between 10:00 and 11:00 a.m.

¶ 13. Chief Davis gave Internal Affairs Officer Don Butler authority to investigate Renfro’s behavior, including administering a portable breath test and questioning him after he signed a Garrity form advising him that his responses could not be used as evidence to convict him of a crime. However, Renfro refused to take a portable breath test or sign the Garrity form. Officer Butler later testified that Renfro was “very argumentative.” Renfro told Officer Butler that Chief Davis could personally give him a portable breath test if he wanted one. Chief Davis described Renfro as “confrontational, extremely agitated[, and] very insubordinate.”

¶ 14. Chief Davis told Renfro that he did not have an option to refuse to take the portable breath test or sign the Garrity form. Renfro finally took the portable breath test, which indicated that his blood-alcohol content was .075%. Renfro claimed that the test results were due to the fact that he had just eaten a cough drop, but Chief Davis testified that he smelled alcohol on Renfro. Renfro also signed the Garrity form, but he then refused to answer any questions before he talked to his lawyer. Renfro was allowed to call his lawyer. But having been involved with Renfro for approximately ten hours, Chief Davis wanted to prevent further disruption by Renfro, so he suspended him with pay.

¶ 15. The next day, Renfro received written notice of his suspension with pay. Five days later, Renfro received a pre-termination letter. The letter notified Renfro of Chief Davis’s recommendation that the City terminate Renfro “for insubordination and conduct unbecoming an officer related to [his] actions on June 16, 2011.”

¶ 16. Renfro requested a pre-termi-nation hearing, which occurred on July 7, 2011. Afterward, the City terminated Renfro. Renfro then requested a hearing before the Commission. Officer Butler, Chief Davis, Officer Guerrero, and Corporal Shipman testified during the hearing. Subsequently, the Commission found that the City did not terminate Renfro for political or religious reasons. The Commission also found that the City terminated Renfro in good faith and for cause. Therefore, the Commission affirmed the City’s judgment. Renfro appealed to the circuit court, which also affirmed. Renfro appeals.

ANALYSIS

¶ 17. Renfro claims that the Commission’s decision was arbitrary, capricious, unreasonable, and beyond its authority. According to Renfro, the City failed to present sufficient evidence that he was insubordinate. Renfro argues that he followed the Moss Point Police Department’s standard operating procedure when he reported a crime while off-duty. Additionally, Renfro notes that there was no evidence that he was intoxicated at the time he reported the crime. Renfro further argues that the City could not have found that he refused to take a portable breath test because he took one the following morning. Finally, Renfro claims that the City could not have found that he was insubordinate for refusing to answer questions under Garrity, because Chief Davis suspended him before he had an opportunity to answer any questions.

¶ 18. A police officer “may be ... discharged ... for ... insubordination....” Miss.Code Ann. §21-31-21 (Rev. 2007). A discharged police officer may appeal his or her termination to a civil service commission, which shall determine whether the decision to terminate the officer “was or was not made for political or religious reasons and was or was not made in good faith for cause.” Miss.Code Ann. § 21-31-23 (Rev. 2007). On appeal, we must determine whether the Commission’s decision “was in good faith for cause.” City of Jackson v. Froshour, 530 So.2d 1348, 1355 (Miss.1988). “Intertwined with this question is whether ... there was substantial evidence before the ... Commission to support its order[,] and whether it is arbitrary, unreasonable, confiscatory, and capricious.” Id.

¶ 19. We must employ a limited standard of review. Id. We are prohibited from substituting our judgment for the City’s. Id. Instead, we must determine whether substantial credible evidence supports the City’s decision. Id. “Courts are not empowered to supervise the intelligence, wisdom[,] or fairness of the governing authorities.... ” Id. Similarly, we are “prohibited from making credibility determinations of the evidence or testimony that was presented to the ... [C]ommission.” City of Laurel v. Brewer, 919 So.2d 217, 221 (¶ 15) (Miss.Ct.App.2005). “[Substantial evidence has been defined as such evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks omitted). Finally, this Court is not called upon to determine issues of fact regarding whether an employee actually committed the alleged misconduct that led to his or her termination. Id. Instead, we must determine “whether the [CJommission acted in good faith based on the evidence before it.” Id.

¶ 20. We find that there was substantial evidence to support the Commission’s decision that the City terminated Renfro in good faith and for cause. Ren-fro was terminated for insubordination. Renfro vigorously argued that he acted according to standard operating procedures when he reported the misdemeanor drug transaction while he was off-duty. But Chief Davis did not seek to contact Renfro based solely on the fact that he had reported a crime while he was off-duty. The record indicates that Officer Guerrero, Lieutenant Ashley, and Corporal Shipman were all concerned that Renfro sounded intoxicated when he spoke over the radio. Chief Davis also testified that Renfro sounded intoxicated, and he had never had trouble understanding Renfro over the radio before. Officer Guerrero testified that Renfro’s voice sounded abnormal. Corporal Shipman testified that he had worked with Renfro for two years, and Renfro had never sounded that way before. Although Renfro submitted three unsworn statements that he was always difficult to understand over the radio because he tended to mumble, we are not called upon to determine whether Renfro was actually intoxicated at the time he reported a crime while off-duty.

¶ 21. The fact remains that Chief Davis had substantial evidence to believe that Renfro was intoxicated. Not only that, Chief Davis had substantial evidence to believe that while Renfro was intoxicated, he drove to Moss Point and initiated some form of surveillance or investigation while he was off-duty. And while Renfro argues that it was standard operating procedure to report any crimes he witnessed while off-duty, there is a significant difference between simply encountering a crime while off-duty, and conducting unsanctioned surveillance while under the influence of alcohol in the hopes of witnessing a crime. Suffice it to say, Chief Davis had substantial evidence to be concerned that Renfro had been conducting quasi-police investigations while off-duty and intoxicated.

¶ 22. Renfro is correct that there was no evidence that he was intoxicated on the night of June 16, 2011. However, the lack of evidence is based almost entirely on the fact that he avoided all of Chief Davis’s attempts to resolve the question. As mentioned previously, Renfro initially told Chief Davis that he was at his apartment. A short time later, two officers arrived at Renfro’s apartment at Chief Davis’s direction. Renfro did not open the door, and he would not answer his phone. Additionally, Renfro’s Ford F-250 pickup truck was parked nearby.

¶ 23. The next morning, two other officers were further unable to contact Ren-fro. Chief Davis also attempted to call Renfro, but he did not answer the phone. Nor would he answer his door for Chief Davis. Officers heard Renfro’s phone ringing inside of his apartment. It is possible that Renfro had actually been picked up by a friend in the short time since Chief Davis first called him and the officers arrived at his apartment. But a reasonable fact-finder could also conclude that Renfro avoided Chief Davis’s attempts to contact him, and his avoidance prevented Chief Davis from obtaining contemporaneous evidence to confirm that Renfro was intoxicated. Even so, Renfro was not terminated for being intoxicated. He was terminated for insubordination and conduct unbecoming of a police officer.

¶ 24. When Renfro finally reported to the police department as directed, he was argumentative and agitated. He initially refused to take a portable breath test at Officer Butler’s direction. Officer Butler was the internal affairs officer at the Moss Point Police Department. He had authority to investigate the conduct of other officers on Chief Davis’s behalf. Even when Officer Butler told Renfro that he had to take a portable breath test, Renfro said that if Chief Davis wanted one, he would have to personally administer it. Chief Davis testified that he had been dealing with Renfro and his unusual behavior for approximately ten hours. Chief Davis had reason to believe that Renfro had been avoiding his phone calls and officers that Chief Davis had sent to act on his behalf. Faced with Renfro’s argumentative and combative attitude, Chief Davis decided that enough was enough, so he suspended Renfro with pay. Renfro stormed out of the police station. Because Renfro had a blood-alcohol content of .75%, Chief Davis told Renfro that he should not drive home. Officer Butler observed that Renfro then “started to argue with Chief Davis,” and he “thought Renfro may attempt to strike Chief Davis.”

¶25. To summarize, Chief Davis had substantial reason to suspect that Renfro had been conducting quasi-police surveillance while off-duty and intoxicated. There was evidence that Renfro avoided Chief Davis’s attempts to confirm his suspicion. Finally, there was evidence that Renfro was insubordinate in that he was argumentative, adversarial, and combative regarding Officer Butler’s attempts to administer a portable breath test and ask questions on Chief Davis’s behalf. It follows that there was substantial evidence to support the Commission’s decision. There is no merit to Renfro’s appeal.

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

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

      . In Garrity v. New Jersey, 385 U.S. 493, 494, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), police officers under investigation were told that they would be removed from office if they declined to answer potentially incriminating questions, and their answers could be used against them in a criminal prosecution. The United States Supreme Court held that statements given under such circumstances were involuntary and could not be used to convict the officers. Id. at 500, 87 S.Ct. 616.


text:
    Jeffery RAMER a/k/a Jeffrey Ramer, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KA-00596-COA.
    Court of Appeals of Mississippi.
    Sept. 9, 2014.
    Rehearing Denied Nov. 18, 2014.

      Office of State Public Defender by George T. Holmes, Phillip Broadhead, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J., for the Court:

¶ 1. A jury sitting before the Tippah County Circuit Court found Jeffery Ramer guilty of burglary. The circuit court found that Ramer qualified for sentencing as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2007). Accordingly, the circuit court sentenced Ramer to seven years in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved, Ramer appeals and argues that the circuit court erred when it allowed the prosecution to introduce improper opinion evidence from lay witnesses. Ramer also claims that there is insufficient evidence to support his conviction for burglary. Finally, Ramer claims that the jury’s verdict is contrary to the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Ramer’s conviction stems from the burglary of Greg Isom’s tire shop in Ripley, Mississippi. Isom rented a building approximately five feet from his shop to Walter Boyd, who used the building to fix tires and perform mechanic work. Boyd hired Ramer, who also lived in some of the space that Boyd rented from Isom.

¶ 3. One morning during July 2011, Isom arrived at his shop and discovered that a wooden panel covering a hole formerly occupied by an air-conditioning unit was missing. The hole was approximately seven to eight feet off of the ground, and it was in a wall in the back of his shop. Isom then noticed that some of his merchandise was also missing. To be specific, two speakers and an amplifier were gone. Two or three days earlier, Ramer had said that he wanted the merchandise. Isom and his employee, Gary Barnes, noticed that a wooden panel was missing from the outside of the shop. Isom and Barnes went behind the shop, where they found Ramer. Ramer denied that he had seen anyone in the area. When Isom and Barnes went to the other side of the shop, they saw footprints in the wet earth. There was also a clearly distinguishable footprint close to the missing panel.

¶ 4. Isom and Barnes then went back to the area where Ramer was working on a car. Isom noticed a crowbar near Ramer. According to Isom, the crowbar had chips of paint on it. The paint chips looked similar to paint on the back of a locked metal door to his shop. Isom also noticed that someone had unsuccessfully attempted to pry open the metal door. There was a footprint on the metal door. Isom deduced that someone had tried to kick in the metal door. Isom asked Ramer to show him and Barnes the bottom of his shoes. Ramer complied. According to Isom and Barnes, the distinctive pattern on the bottom of Ramer’s shoes looked identical to the footprints in the wet earth around the back of the shop and the footprint on the metal door. Afterward, Isom went into the shop and called the Ripley Police Department.

¶ 5. Detective Scott Watson responded. When Detective Watson went to look at the footprints, they had been partially smudged away. Even so, Detective Watson took pictures of the footprints, the bottom of Ramer’s shoes, and the scene in general. He also seized the crowbar and gathered paint chips from the area around the metal door. At Boyd’s request, Detective Watson did not take Ramer into custody at that time. Boyd told Detective Watson that if Isom did not object, he wanted to try to “work something out” with Ram-er over the course of the weekend. However, Ramer did not show up for work the following Monday.

¶ 6. Ramer was later arrested and charged with burglary. He went to trial during mid-February 2013. The prosecution called Isom, Boyd, Barnes, and Detective Watson as witnesses. Ramer did not call any witnesses or present any defense. As previously mentioned, the jury found Ramer guilty, and the circuit court sentenced Ramer as a habitual offender to seven years in the custody of the MDOC. Ramer appeals.

ANALYSIS

I. OPINION TESTIMONY

¶ 7. Ramer claims the circuit court erred when it allowed Isom, Barnes, and Boyd to testify that shoe prints behind Isom’s shop — particularly four distinctive circles in the shoe prints — looked the same as the bottom of Ramer’s shoes. According to Ramer, their testimony was inadmissible because they were not expert witnesses. We are mindful that “[t]he admission and exclusion of evidence is left to the discretion of the [circuit] court.” White v. State, 976 So.2d 415, 417 (¶ 11) (Miss.Ct.App.2008) (citing Stewart v. State, 881 So.2d 919, 924 (¶17) (Miss.Ct.App.2004)).

¶ 8. Rule 701 of the Mississippi Rules of Evidence allows a lay witness to give opinion testimony in certain limited circumstances. Under Rule 701, if the witness is not testifying as an expert witness, his “testimony in the form of opinions or inferences is limited to those opinions or inferences [that] are ... rationally based on [his] perception, [and] helpful to the clear understanding of [his] testimony or the determination of a fact in issue.” Additionally, Rule 701 requires that the witness’s testimony must not be “based on scientific, technical, or other specialized knowledge....” In Smith v. State, 725 So.2d 922, 925 (¶ 6) (Miss.Ct.App.1998), this Court was confronted with a similar issue. A trial court had allowed a police officer to testify that'a shoe print on a door to the back of a victim’s house had the same pattern as a pair of shoes that he saw at a defendant’s house. Id. at (¶ 7). This Court held that the officer’s testimony was admissible under Rule 701. Id. at 925-26 (¶ 7). This Court reasoned that the officer’s “observations concerning the shoe print patterns did not require any specialized knowledge to assist the trier of fact.” Id. at 926 (¶ 7). Furthermore, the officer’s “testimony was nothing more than his first-hand observation, [which was] rationally based on his personal perceptions.” Id. Finally, the officer’s “opinion was also helpful to the jury in resolving the important factual issue of whether [the defendant] was the person who kicked in the victim’s back door.” Id.

¶ 9. According to Ramer, Isom’s testimony was not based on his personal or firsthand observation. Ramer argues that “Isom ... ‘analyzed’ ... Ramer’s tennis shoe and the ‘shoeprint’ he alleged was found out back of his store.” Ramer further notes Isom’s testimony that the shoe print was fresh. Ramer reasons that “[t]hose opinions would necessarily involve some form of forensic technical analysis, which ... requires ‘specialized knowledge,’ is highly methodological, and [is] not simply based on some alleged personal observation.” We find that the circuit court did not abuse its discretion when it allowed Isom’s testimony. There was a distinctive and identifiable large four-circle pattern on the bottom of Ramer’s shoes. The circuit court could have reasonably concluded that Isom was able to recognize the distinctive pattern without having any scientific, technical, or specialized knowledge. Consequently, this issue has no merit.

II. SUFFICIENCY OF THE EVIDENCE

¶ 10. Next, Ramer claims there was insufficient evidence to convict him of burglary. According to Ramer, there was insufficient evidence that he entered the store through the hole in the wall. Ramer notes that the hole was approximately eight feet above the ground outside of Isom’s shop. Ramer further notes that he is approximately five feet, four inches tall. Ramer also draws our attention to the fact that Detective Watson admitted that there was no direct evidence that the hole in Isom’s shop was the point of entry. Finally, Ramer notes that no forensic evidence connected him to the burglary of Isom’s shop.

¶ 11. “[When] considering whether the evidence is sufficient to sustain a conviction[,] ... the critical inquiry is whether the evidence shows beyond a reasonable doubt that [the] accused committed the act charged, and did so under such circumstances that every element of the offense existed[.]” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citations and internal quotation marks omitted). The evidence is viewed in favor of the prosecution. Id. Should the evidence “point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty,” we must reverse and render the conviction. Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶ 12. Ramer was charged with burglary under Mississippi Code Annotated section 97-17-33 (Supp.2013). “The crime of burglary consists of the breaking and entering the premises with the intention of committing a theft once inside.” Henderson v. State, 756 So.2d 811, 813 (¶ 8) (Miss.Ct.App.2000). “The slightest physical entry into the previously secure enclosure is sufficient to satisfy the ‘entering’ component of a burglary.” Id. at 814 (¶ 8). It was not necessary for the prosecution to present direct evidence that Ramer crawled through the hole in Isom’s shop. The jury could infer that Ramer used some means to gain access to the necessary height for him to access the hole in the shop. Furthermore, there was evidence that Ramer could crawl into the hole in the shop. Ramer was approximately five feet, four inches tall, and he weighed 110 pounds at the time of the trial. Additionally, the circuit court instructed the jury that it could find Ramer guilty based on circumstantial evidence. “It is within the jury’s province to draw reasonable inferences from the evidence based on their experience and common sense.” Terry v. State, 126 So.3d 946, 949 (¶ 11) (Miss.Ct.App.2013) (quoting Arbuckle v. State, 894 So.2d 619, 623 (¶ 21) (Miss.Ct.App.2004)).

¶ 13. Detective Watson testified that pieces of wood had covered a hole to Isom’s shop that apparently had once been the location of an air-conditioning unit. Detective Watson further testified that pieces of wood were on the floor inside Isom’s shop. Detective Watson also testified that someone had unsuccessfully attempted to pry open the back door to Isom’s shop. According to Detective Watson, “There w[ere] pry marks on the outside [of the door, and t]here w[ere] a few little paint chips on the inside of the door on the carpe[t].” Isom testified that when he first encountered Ramer the next morning, Ramer was near a crowbar that had paint chips on it that matched the paint from the back door to the shop. The prosecution introduced a picture of the crowbar with paint chips on it, and paint chips that were near the back door to the shop. Viewed in the light most favorable to the prosecution, the jury could find that Ramer unsuccessfully tried to pry open the back door to Isom’s shop. The jury could also find that Ramer then pried off the wood that covered the small opening to Isom’s shop. Furthermore, the jury heard Isom’s testimony that merchandise was missing from his shop, and Ramer had said that he wanted the missing merchandise. We find no merit to this issue.

III. WEIGHT OF THE EVIDENCE

¶ 14. Finally, Ramer claims that the jury’s verdict is contrary to the overwhelming weight of the evidence. When examining the weight of the evidence, we “will only disturb the verdict when it so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). The evidence is weighed in the light most favorable to the verdict. Id.

¶ 15. In the previous issue, we discussed the evidence against Ramer. Viewing the evidence in the light most favorable to the verdict, we find that it does not sanction an unconscionable injustice to allow Ramer’s conviction to stand. There is no merit to this issue.

¶ 16. THE JUDGMENT OF THE TIPPAH COUNTY CIRCUIT COURT OF CONVICTION OF BURGLARY AND SENTENCE, AS A HABITUAL OFFENDER, OF SEVEN 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 TIPPAH COUNTY.

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

      . Law students Kimberly-Joy Lockley and Marcus A. Williams drafted Ramer’s brief under the supervision of Professor Phillip W. Broadhead, director of the Criminal Appeals Clinic at the University of Mississippi School of Law.


author: GRIFFIS, P.J., for the Court:

text:
    Sirdarious SHERIFF a/k/a Sirdarous Sheriff a/k/a Sadarous Sheriff, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KA-01802-COA.
    Court of Appeals of Mississippi.
    Oct. 7, 2014.
    Office of State Public Defender by George T. Holmes, Erin Elizabeth Prid-gen, attorneys for appellant.
    Office of the Attorney General by Samson Mabry IV, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   GRIFFIS, P.J., for the Court:

¶ 1. Sirdarious Sheriff was convicted of possession of stolen property. In this appeal, Sheriff claims it was error for the trial court to instruct the jury that his evasion from police could be considered as evidence of guilt. We find no error and affirm.

¶ 2. On April 18, 2012, Officer Brandon Duckworth was informed of a possible stolen vehicle in the area. When he saw the described vehicle, Officer Duckworth turned on his blue lights to initiate a stop. The vehicle pulled into a gas-station parking lot.

¶ 8. The video from Officer Duck-worth’s police car showed the vehicle slow down and then accelerate out of the parking lot. Officer Duckworth followed the vehicle. It then stopped in a neighborhood. The driver and two passengers got out of the vehicle and fled. Officer Duck-worth apprehended Zachary Bracey, a passenger. Bracey told Officer Duck-worth that the others were Rahime Williams and a person named “Joshua,” who was later identified as Sheriff.

¶ 4. Sheriff was taken into custody. Detective Bradley Turner advised Sheriff of his rights. Sheriff waived his Miranda rights and verbally admitted that he knew the vehicle was stolen, but stated that he did not steal it. This information was not included in Sheriffs written statement.

¶ 5. After his conviction by a jury, Sheriff was sentenced to serve ten years in the custody of the Mississippi Department of Corrections. Sheriff now appeals his conviction.

¶ 6. Sheriff argues that the trial court erred when it allowed a flight instruction, because his flight from police was explained. Alternatively, Sheriff claims that the probative value of evidence of his flight is outweighed by the danger of unfair prejudice. The State argues that Sheriffs evasion from police was unexplained, and thus, the jury instruction was proper.

¶ 7. This Court reviews the giving or refusal of a jury instruction for an abuse of discretion. Victory v. State, 88 So.3d 370, 373 (¶ 12) (Miss.2012). “Whether to give a jury instruction is within the sound discretion of the trial court.” Chamberlin v. State, 989 So.2d 320, 341-42 (¶ 80) (Miss.2008). This Court reviews the jury instructions given as a whole to determine whether the refusal of a particular instruction was in error. Taylor v. State, 763 So.2d 913, 915 (¶8) (Miss.Ct.App.2000). If the instructions fairly state the law of the case and no injustice is created, no reversible error will be found. Id.

¶ 8. Jury instruction S-4 provided:

The Court instructs the jury that flight is a circumstance from which guilty knowledge and fear may be inferred. If you believe from the evidence in this case beyond a reasonable doubt that the defendant, Sirdarious Sheriff, did flee or go into hiding, such flight or hiding is to be considered in connection with all other events in this case. You will determine from all the facts whether such flight or hiding was from a conscious sense of guilt of possession of stolen property or whether it was caused by other things and give it such weight as you think it is entitled to in determining the guilt or innocence of Sirdarious Sheriff.

Sheriff objected to instruction S-4’s introduction, but the court allowed it.

¶ 9. In Shaw v. State, 915 So.2d 442, 447 (¶ 18) (Miss.2005), the Mississippi Supreme Court considered a similar instruction, and stated:

We have consistently held that a defendant’s flight is admissible as evidence of consciousness of guilt. However, a flight instruction is appropriate only where the flight is unexplained and somehow probative of guilt or guilty knowledge. Therefore, evidence of flight is inadmissible where there is an independent reason for the flight. Also, it is well settled that evidence of flight or escape is admissible as an exception to Mississippi Rule of Evidence 404(b) in order to show guilty knowledge. While evidence of flight is admissible under Rule 404(b), it must be filtered through Mississippi Rule of Evidence 403.

(Internal citations omitted). The court held that “in determining whether to admit evidence of flight under Rule 403, the trial court is afforded great discretion.” Id.

¶ 10. Evidence of flight is admissible to show an accused’s consciousness of guilt. Fuselier v. State, 702 So.2d 388, 390 (¶ 4) (Miss.1997). There are two criteria for the court to consider when determining whether a flight instruction is appropriate: “(1) [o]nly unexplained flight merits a flight instruction; and (2)[f]light instructions are to be given only in cases where that circumstance has considerable probative value.” Banks v. State, 631 So.2d 748, 751 (Miss.1994) (citing Pannell v. State, 455 So.2d 785, 788 (Miss.1984)). “Any explanation given in an effort to show an independent reason for flight must not be contradicted by other evidence presented at trial.” Sanders v. State, 63 So.3d 554, 574 (¶ 66) (Miss.Ct.App.2010) (citing Shumpert v. State, 935 So.2d 962, 969-70 (¶¶ 25-28) (Miss.2006)).

¶ 11. Sheriff testified and explained that he fled because there was a warrant out for his arrest for another crime. Those charges, however, were dropped. Sheriff asserts that he did not know the vehicle was stolen when he ran from police. Sheriffs written statement to police provided:

We came to Brandon, [Mississippi], and when we came off the interstate, the police [officer] turned his lights on, and we turned right and pulled over cause we thought they were trying to. get around, but they pulled behind us. [I] pulled to the store and they followed. So someone in the car said we’re going to get caught right here, so I pulled off and went to Crossgates [neighborhood] and jumped out of the car and ran through some woods.

Sheriff testified and maintained that the reason he fled from police was that there was an arrest warrant out for him, and he panicked.

¶ 12. Detective Turner testified that Sheriff told him after he was arrested that he knew the vehicle was stolen but that he did not steal it.

¶ 13. The trial judge was within his discretion to give the flight instruction. Sheriff testified as to a reason for his flight, but that reason was contradicted by Detective Turner’s testimony about Sheriffs knowledge of the stolen vehicle. We find that there was evidence to support the trial court’s finding that Sheriffs flight was not explained by any reason other than consciousness of guilt. Therefore, the trial court did not abuse its discretion.

¶ 14. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF STOLEN PROPERTY AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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


author: GRIFFIS, P.J., ROBERTS, J.,

text:
    Terris Torrell STEVENSON a/k/a Terris Stevenson, Appellant/Cross-Appellee v. STATE of Mississippi, Appellee/Cross-Appellant.
    No. 2013-KA-00580-COA.
    Court of Appeals of Mississippi.
    Jan. 20, 2015.

      Office of State Public Defender by W. Daniel Hincheliff, George T. Holmes, Eugene A. Perrier, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, Joseph Lane Campbell, attorneys for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Terris Torrell Stevenson appeals his conviction of felony simple domestic violence. Stevenson argues that the prosecutor’s improper statement during closing argument was reversible error. On cross-appeal, the State argues that the trial court erred when it denied the State’s motion to amend the indictment. We find no error and affirm.

FACTS

¶ 2. Stevenson was indicted for felony domestic violence, third offense, pursuant to Mississippi Code Annotated section 97-3—7(3)(b) (Rev.2014). The indictment also included a habitual-offender enhancement pursuant to Mississippi Code Annotated section 99-19-83 (Supp.2014).

¶ 3. Stevenson and Dalasi Taylor had been in a relationship. They dated for almost three years. Six to eight months after their relationship ended, on March 31, 2012, Taylor was walking with a “friend guy” on Crawford Street in Vicksburg, Mississippi, when Stevenson drove by and stopped his car. Stevenson got out of his car, told Taylor he loved her and wanted her back. Taylor testified that, although she was scared, she did not run or scream. She got into Stevenson’s car. A policeman pulled up and instructed Taylor to drive Stevenson’s car, because Stevenson appeared intoxicated.

¶ 4. When Taylor stopped at a stop sign, Stevenson slapped Taylor in her face, as he thought that Taylor’s “guy friend” had paid for her to have a manicure. They then went to a store, where Stevenson took the $40 that Taylor had in her possession to purchase gas for his car. Taylor testified that she paid for the gas because she was scared. They then drove to the Waltersville Estates apartment complex, where Stevenson got out of the car and took the keys. Taylor remained in the car, while Stevenson visited one of the apartments. He then returned to the car and took Taylor to an apartment where his daughter lived.

¶ 5. Taylor testified that, once at the apartment, Stevenson told her to remove all her clothes. He then hit her with an electric cord. She also testified that Stevenson hit her on the head with the heel of a stiletto boot.

¶ 6. Taylor testified that, after the incident, Stevenson called her multiple times and asked her to drop the charges, even though Taylor had obtained a restraining order against him. Stevenson arranged to meet Taylor at the police station, which she did. Taylor requested the police to drop the restraining order as well as the charges against Stevenson.

¶ 7. Beverly Prentiss was a domestic-violence investigator with the Vicksburg Police Department. She was called to the police department to interview Taylor, who was with her mother. Investigator Pren-tiss testified that Taylor appeared upset and emotional, and was crying. Investigator Prentiss took pictures of the wounds on Taylor’s body. The pictures were introduced into evidence.

¶ 8. Investigator Prentiss also testified that Stevenson appeared with Taylor at the police station. Stevenson told Investigator Prentiss that Taylor wanted to drop the restraining order because the beating was due to consensual “kinky sex.” When Investigator Prentiss asked her if this was true, Taylor agreed. Based on this encounter, the protective order was dismissed. Despite this action, Investigator Prentiss testified that Taylor’s demeanor at the time seemed “[c]oerced, guided, [and] controlled.” Investigator Prentiss further testified that Stevenson had two prior domestic-violence convictions, which Taylor knew about, yet he served río jail time on either conviction. She explained to the jury that a third domestic-violence charge is a felony.

¶ 9. Stevenson was convicted of felony domestic violence. Following a presen-tencing investigation and sentence-enhancement proceeding, Stevenson was sentenced to serve ten years as a non-habitual offender. Stevenson filed both a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, and an amended motion, which the trial court denied. It is from this judgment that Stevenson now appeals.

■ ANALYSIS

1. Whether the trial court erred when it failed to either sua sponte declare a mistrial or instruct the jury when the State made reference during closing argument to Stevenson possibly not going to jail.

¶ 10. Stevenson argues that the prosecutor made an improper statement during closing argument:

Now you [the jury] have got to go back there and deliberate, and you have to decide whether or not a simple assault has occurred. That’s your decision. You have to go back here and look at these things. Look at these welts on her leg. She came in here and told you about it. They’re going to say, oh, she wanted to drop charges. She obviously doesn’t want to drop charges if she’s going to take that witness stand and be judged. It’s even in your jury instructions. Congratulations. Now you’ve [ (Taylor) ] got to come testify. In the jury instructions, it even says judge her credibility. Be judged one more time for what you did, for taking a beating. Be judged because your restraining order failed. And you know that he’s [ (Stevenson) ] not going to jail for any length of time on simple assault.

Stevenson argues that the last sentence that referred to his potential sentence was improper. Marks v. State, 532 So.2d 976, 983 (Miss.1988). The State responds that the remarks were taken out of context and actually reflect the victim’s state of mind. The State also argues that Stevenson’s failure to object to the closing arguments at trial constitutes a waiver of the issue for appellate review.

¶ 11. While attorneys are allowed wide latitude in presenting their cases to a jury, “prosecutors are not permitted to use tactics which are inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury.” Sheppard v. State, 777 So.2d 659, 661 (¶ 7) (Miss.2000) (citing Hiter v. State, 660 So.2d 961, 966 (Miss.1995)). The standard of review for “lawyer misconduct during opening statements or closing arguments is whether the natural and probable effect of the.improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.” Slaughter v. State, 815 So.2d 1122, 1130 (¶ 45) (Miss.2002) (citing Sheppard, 777 So.2d at 660 (¶ 7)).

¶ 12. To determine whether a prosecutor’s closing remarks were reversible error, this Court applies the two-part test adopted in Spicer v. State, 921 So.2d 292, 318 (¶ 55) (Miss.2006) (modified by Brown v. State, 986 So.2d 270, 286 (¶ 16) (Miss.2008), and partially abrogated by O’Connor v. State, 120 So.3d 390, 400-01 (¶¶ 28-29) (Miss.2013)). First, we review the remarks to determine if they were improper. Id. If so, then we analyze whether the remarks prejudicially affected the rights of the accused. Id. “It must be clear beyond a reasonable doubt[,] that absent the prosecutor’s comments, the jury could have found the defendant guilty.” Id:

¶ 13. Before applying this test, we must determine if defense counsel objected to the statement or if defense counsel invited the statement in light of the surrounding circumstances. Id. at 317-18 (¶¶ 52-53). “[I]f no contemporaneous objection is made, the error, if any, is waived.” Slaughter, 815 So.2d at 1130-31 (¶ 47) (quoting Walker v. State, 671 So.2d 581, 597 (Miss.1995)). Here, we find that this issue was waived. The record is clear that Stevenson made no contemporaneous objection at trial.

¶ 14. In addition, we also find that the comments did not prejudicially affect the rights of Stevenson. The comments more so reflected the state of mind of the victim, as opposed to making a reference to Stevenson’s potential sentence. We do not find a plain-error exception to the contemporaneous-objection requirement. Therefore, the issue was not properly preserved for review by this Court. We find that this issue has no merit.

2. Whether the trial court erred when it denied the State’s motion to amend the indictment.

¶ 15. On cross-appeal, the State asks this Court to find the trial court in error when it denied the State’s motion to amend the indictment pursuant to Rule 7.09 of the Uniform Rules of Circuit and County Court. The State sought an amendment to Stevenson’s indictment at the sentencing hearing. According to his indictment, Stevenson was initially charged for the felony of domestic-violence, third offense, with the charge enhanced as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83.'

¶ 16. However, the State discovered after the trial that Stevenson did not meet the requirements of section 99-19-83, and instead sought to amend the indictment to charge Stevenson as a habitual offender under Mississippi Code Annotated section 99-19-81 (Supp.2014), which is a lesser sentence enhancement. The trial court denied the State’s motion to amend the indictment, and sentenced Stevenson without any sentence enhancement. Stevenson responds that the trial court acted within its discretion in the denial of the motion to amend the indictment.

¶ 17. Mississippi law provides “that a change in the indictment is permissible if it does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant’s case.” Ellis v. State, 469 So.2d 1256, 1258 (Miss.1985) (citations omitted). Further, Rule 7.09 provides:

All indictments may be amended as to form but not as to the substance of the offense charged. Indictments may also be amended to charge the defendant as [a] habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the amendment is to assert prior offenses justifying such enhancement (e.g., driving under the influence, Miss.Code Ann. § 63-11-80). Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.

The Mississippi Supreme Court has previously held that post-trial amendments to an indictment related to a criminal defendant’s habitual-offender status are improper, characterizing such post-trial amendments as “an unfair surprise.” Gowdy v. State, 56 So.3d 540, 545 (¶ 19) (Miss.2010). The Gowdy Court further noted:

[N]otice of the charge includes notice of the applicable minimum and maximum penalties. Under [Uniform] Rule [of Circuit and County Court] 8.04(A)(4)(b), before a defendant can plead guilty, the trial court has a duty to ensure that he “understands the nature and consequences of the plea, and the maximum and minimum penalties provided by law.” The rule should not be different for defendants who choose to exercise their right to trial by jury.

Gowdy, 56 So.3d at 546 (¶ 21).

¶ 18. Here, we find that the trial court acted within its discretion to deny the State’s motion to amend the indictment. The record is clear that the State filed the motion to amend the indictment well after trial and before the sentencing hearing. And, while the State cites Beal v. State, 86 So.3d 887, 893 (¶ 14) (Miss.2012), to support its argument that the trial court erred when it denied the State’s motion to amend the indictment, Beal is clearly factually distinguishable from the present case. The motion to amend the indictment in Beal was filed before trial. Id. at 892 (¶ 12). Further, the supreme court in Beal upheld the trial court’s granting of the State’s motion to amend the indictment, recognizing that such decisions are within the discretion of the trial court, as the court determined that amendments to an indictment concerning habitual status are permissible. Id. at 893 (¶ 13). Accordingly, the trial court did not abuse its discretion when it denied the State’s motion to amend the indictment filed well after the conclusion of the trial. Therefore, this issue has no merit.

¶ 19. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT OF CONVICTION OF DOMESTIC VIOLENCE, THIRD OFFENSE, AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY A $1,000 FINE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON AND FAIR, JJ., CONCUR. ROBERTS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY MAXWELL AND JAMES, JJ.

ROBERTS, J.,

concurring in part and dissenting in part:

¶ 20. While I concur with the affirmation of Stevenson’s conviction, I must respectfully dissent from the majority’s finding that the circuit court did not err when it denied the State’s request to conduct a habitual-offender sentencing hearing under section 99-19-81. I would reverse the circuit court’s judgment and remand for a new sentencing hearing, with the State allowed to present evidence of Stevenson’s habitual-offender status pursuant to section 99-19-81. By the grand jury indicting Stevenson as a section 99-19-83 habitual offender, Stevenson was necessarily charged also as a section 99-19-81 habitual offender.

¶ 21. On July 30, 2012, a Warren County grand jury indicted Stevenson on one count of felony domestic violence as a habitual offender pursuant to section 99-19-83. Stevenson’s indictment regarding his habitual-offender status read, in pertinent part: “Stevenson has twice previously been convicted of felonies upon charges separately brought and arising out of separate incidents at different times, and has been sentenced to separate terms of one year or more in a State or Federal Penal Institution[.]” According to the indictment, the underlying crimes that served as the basis for the enhancement were a 1991 manslaughter conviction, a crime of violence, in Memphis, Tennessee, for which Stevenson “was sentenced to serve a term of three years ... and did serve one year or more[,]” and a 2003 conviction on four counts of aggravated robbery, also crimes of violence, in Memphis, Tennessee, for which Stevenson “was sentenced to serve a term of [ten] years in a penal institution and did serve one year or more.”

¶ 22. Stevenson elected to go to trial on March 18, 2013, and a jury convicted him on one count of felony domestic violence. After the jury’s verdict, but before Stevenson’s sentencing hearing, the State first discovered it was unlikely that it would be able to meet every element as required under section 99-19-83, because even though Stevenson had been sentenced to three years in the Tennessee Department of Corrections’ custody for manslaughter, it appeared he had served only nine months in the Shelby County Detention Facility before he was released. The State moved to amend Stevenson’s indictment to reduce his true status to a nonviolent habitual offender under section 99-19-81, which would subject Stevenson to ten years, the maximum, to be served without the possibility of a reduced sentence, a suspended sentence, parole, or probation. The circuit court refused the State’s request to proceed with a sentencing hearing as a section 99-19-81 nonviolent habitual offender, and it sentenced Stevenson without a habitual-offender sentence enhancement.

¶ 23. I first note that the appel-lee/cross-appellant, the State, proceeds on its cross-appeal under the authority of Mississippi Code Annotated section 99-35-103(c) (Rev.2007), which provides that the State:

[M]ay prosecute an appeal from a judgment of the circuit court in a criminal cause ... [f]rom a ruling adverse to the [S]tate ... in every case in which the defendant is convicted and prosecutes an appeal; and the case shall be treated as if a cross[-]appeal had been formally presented by the [S]tate. All questions of law thus presented shall be decided by the [Mississippi] Supreme Court.

Stevenson appealed his conviction, and the State cross-appealed on the adverse ruling by the circuit court, which denied the State’s request to conduct a section 99-19-81 habitual-offender sentencing hearing. Thus, the State’s cross-appeal is properly before this Court.

¶ 24. There are two companion statutes that relate to habitual-offender sentencing. The first is found in section 99-19-81, and reads:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Under this statute, the State must prove, beyond a reasonable doubt, the following:

1. Two prior felony convictions,
2. Upon charges separately brought and arising out of separate incidents at different times, and
3. Sentences of separate terms of one year or more for each conviction.

If the State proves these elements, the circuit court must impose a sentence of the maximum term of imprisonment for the crime committed, without eligibility for a reduced sentence, a suspended sentence, parole, or probation.

¶ 25. The companion habitual-offender statute is codified in section 99-19-83. Section 99-19-83 states:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more ... in any state and/or federal penal institution, ... and where any one (1) of such felonies shall have been a crime of violence ..., shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole, probation or any other form of early release from actual physical custody within the Department of Corrections.

Section 99-19-83 contains the exact same first three elements as section 99-19-81, but it adds two other elements:

4. The defendant actually served one or more year in custody on each conviction, and
5. One of the prior convictions was a crime of violence.

However, the sentence imposed under section 99-19-83 is life imprisonment without the possibility of a reduced sentence, a suspended sentence, parole, or probation. As a consequence, any accused felon properly and timely indicted as a habitual offender under section 99-19-83 is also, necessarily, properly and timely indicted under the lesser habitual-offender statute, section 99-19-81.

¶ 26. As the majority notes, the Mississippi Supreme Court has held that a post-trial amendment to an indictment adding a habitual-offender enhancement for the first time is improper because the defendant does not have notice of the maximum and minimum sentences; thus, it is said to be an “unfair surprise.” Gowdy v. State, 56 So.3d 540, 545-46 (¶¶ 19-21) (Miss.2010). At first blush, it would appear that Gowdy would preclude the State from seeking an amendment to Stevenson’s indictment to change his habitual-offender enhancement because it was done after trial; however, I submit that because the State was seeking to amend an indictment already containing a habitual-offender enhancement to a less severe habitual-offender enhancement, the concern of “unfair surprise” in Gowdy is clearly absent. Stevenson certainly had notice for nine months before trial that the State was seeking an enhanced sentence of a life term as a habitual offender, and he was aware of the elements that the State would have to prove under that enhancement. As discussed above, the first three elements of section 99-19-81 and section 99-19-83 are identical. Stevenson’s indictment provided him notice of all of the elements found in section 99-19-83; therefore, it follows that he also had notice of all of the elements found in section 99-19-81. The State’s request could constitute no “unfair surprise” to Stevenson.

¶ 27. Additionally, it is established that an amendment to an indictment is permitted if it is an amendment of form and not of substance. See Jones v. State, 912 So.2d 973, 976 (¶ 9) (Miss.2005) (citing Rhymes v. State, 638 So.2d 1270, 1275 (Miss.1994)). The test to determine whether an amendment to an indictment is one of form or substance is also well established. “[I]f the change does not materially alter facts which are the essence of the offense on the face of the original indictment or if the change does not materially alter a defense to the original indictment so as to prejudice the defendant’s case[,]” then it is an amendment to the form of the indictment and not the substance. Chandler v. State, 789 So.2d 109, 111 (¶ 4) (Miss.Ct.App.2001). Here, the amendment only affected the sentencing portion of Stevenson’s case, came as no “unfair surprise” to Stevenson, and was not a defense to the underlying charge of felony domestic violence; thus, the amendment was one of form and not substance. , See Williams v. State, 766 So.2d 815, 816-18 (¶¶ 5, 7, 10) (Miss.Ct.App.2000).

¶ 28. I submit that since Stevenson was aware that the State was seeking an enhancement, he had notice of the elements of both habitual-offender statutes, and he was not unfairly surprised by the amendment. Therefore, the circuit court erred in denying the State’s amendment, and I would reverse and remand to the circuit court for. another sentencing hearing.

¶ 29. There is no double-jeopardy concern regarding Stevenson being resen-tenced as a section 99-19-81 habitual offender. In Ellis v. State, 520 So.2d 495, 496 (Miss.1988), the supreme court stated: “[A] habitual offender’s sentencing hearing, as a trial on the sentence, constitutes jeopardy; therefore, when a defendant’s conviction has been overturned due to a failure of proof at trial, the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble.” Relying on Ellis, this Court held in Short v. State, 929 So.2d 420, 426 (¶ 18) (Miss.Ct.App.2006): “[T]he double jeopardy clause of the Mississippi Constitution of 1890 prohibits the introduction of any new evidence on remand to establish ... habitual offender[-]statusHowever, this is not a case in which the State failed to.prove the habitual-offender elements. When the State has never had an opportunity to prove habitual-offender status at the first trial, and, on appeal, the case is reversed, there is no double-jeopardy violation when the State proves habitual-offender status on a retrial on sentencing. See Gray v. State, 605 So.2d 791, 793 (Miss.1992) (Although initially indicted as a habitual offender, Gray’s “status as a habitual offender was not determined until after the sentencing trial” because he was initially sentenced to death. “Therefore, since Gray’s status as a habitual offender was not previously determined, the present finding of habitual[-]offender status was not barred by double jeopardy.”). Simply put, the State never had a chance to prove Stevenson’s habitual-offender status because the circuit court denied the motion. Upon remand, the State should be permitted to submit proof, if it can, of Stevenson’s habitual-offender status. If the State can prove the elements of section 99-19-81 habitual-offender statute beyond a reasonable doubt, the circuit court should sentence Stevenson as a section 99-19-81 habitual offender.

¶ 30. Accordingly, I concur with the majority’s affirmation of Stevenson’s conviction, but for the above reasons, I respectfully dissent from the majority’s denial of the State’s cross-appeal.

MAXWELL AND JAMES, JJ„ JOIN THIS OPINION.

      . Stevenson was convicted of manslaughter for shooting a man five times and killing him. His conviction of four counts of aggravated robbery arose out of acts on the same day on charges not separately brought.

      . By being sentenced as a non-habitual offender, it appears Stevenson would be eligible for trusty status (Mississippi Code Annotated section 47-5-138.1 (Rev.2011)); earned-release supervision (Mississippi Code Annotated section 47-5-138 (Supp.2014)); or parole (Mississippi Code Annotated section 47-7-3 (Supp.2014)).

      .Ironically, if the State had made no motion to amend the indictment, proceeded to a habitual-offender sentencing hearing, and admitted that the proof failed to establish Stevenson actually served one year or more in custody for his manslaughter conviction, the circuit court would still have full authority to sentence Stevenson as a section 99-19-81 habitual offender. See Beal v. State, 86 So.3d 887, 892-93 (¶¶ 13-14) (Miss.2012) (citing Nathan v. State, 552 So.2d 99, 105-107 (Miss.1989)); Reed v. State, 31 So.3d 48, 56 (¶ 33) (Miss.Ct.App.2009).