author: LAMAR, Justice,

text:
    Shirley LaFONTAINE v. William HOLLIDAY d/b/a Holliday General Contracting.
    No. 2012-CA-00346-SCT.
    Supreme Court of Mississippi.
    April 11, 2013.

      Nicole Edwards, Raymond M. Williams, attorneys for appellant.
    William Holliday, appellee, pro se.
    Before RANDOLPH, P.J., LAMAR and KITCHENS, JJ.
   LAMAR, Justice,

for the Court:

¶ 1. Shirley LaFontaine (“LaFontaine”) appeals from an order which we find to be a nonfinal judgment. Because her appeal is not properly before us, we dismiss her appeal and remand this case to the Circuit Court of Hancock County.

FACTUAL BACKGROUND

¶ 2. LaFontaine filed suit against John Harley (“Harley”) and William Holliday d/b/a Holliday General Contracting (“Holli-day”) in the Circuit Court of Hancock County, Mississippi. The record reveals the case was assigned to Judge Roger T. Clark. After twelve months of inactivity in the case, during which no action of record occurred, the circuit court clerk filed a motion to dismiss the case for want of prosecution under Rule 41(d) of the Mississippi Rules of Civil Procedure. On December 12, 2011, Judge Clark entered an order dismissing the case without prejudice for want of prosecution.

¶ 3. LaFontaine filed a “motion to set aside the judgment of dismissal and to reinstate causes of action.” LaFontaine mailed her motion to the post office box used for all the judges at the Circuit Court of Hancock County, her filing letter was directed to “Dear Sir/Madam,” and her proposed order was for the “presiding Judge’s signature.” LaFontaine argued in her motion to set aside judgment that her attorneys did not receive notice of the clerk’s motion to dismiss. LaFontaine’s counsel argued that, had they received notice of the clerk’s motion, “they would have taken the appropriate steps to prevent the dismissal of Plaintiffs causes of action.”

¶ 4. Judge John C. Gargiulo signed and entered an order reinstating the case. The order to reinstate simply sets forth that the circuit court “is of the opinion that [LaFontaine’s motion to reinstate her case] should be GRANTED in all respects.” The record does not reveal why Judge Gargiulo considered and ruled on LaFontaine’s motion when the case was assigned to Judge Clark.

¶ 5. Holliday, acting pro se, filed a motion to reconsider the order reinstating the case. Holliday argued that Judge Gargiu-lo had abused his discretion in granting LaFontaine’s motion without holding a hearing, and that LaFontaine’s motion should be struck because her foreign pro bono attorney had failed to comply with Mississippi’s pro hae vice rules, and he requested a hearing.

¶ 6. On January 27, 2012, Judge Gargiu-lo entered an order setting aside his prior order reinstating the case. Judge Gargiu-lo determined that LaFontaine’s motion to set aside the dismissal and to reinstate her case “should be addressed to and considered by the judge who, on December 12, 2011, entered the ‘Order Dismissing Case for Want of Prosecution.’ ”

¶ 7. LaFontaine now appeals from Judge Gargiulo’s January 27 order.

LEGAL ANALYSIS

¶ 8. It is well settled that “[a]p-peals to the Supreme Court from the circuit court lie only from a final judgment.” “[A]n appeal is not a matter of right but is subject to the statutory provisions, and the basic requirement is that appeals are proper only if from a final judgment.” Generally, a final judgment is one that adjudicates the merits of the controversy and settles all issues between all parties. In other words, “[a]n order is considered final if it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Furthermore, “the mere fact that an otherwise premature appeal may result in saving expense or delay does not allow an exception to this rule.”

¶ 9. In this case, the order appealed from is not a final judgment. The January 27 order did not adjudicate the case on its merits; rather, the order set aside a previous order reinstating the case, without addressing the merits of the case. Indeed, Judge Gargiulo’s January 27 order specifically stated that LaFontaine’s motion to set aside judgment of dismissal and reinstate causes of action should be considered by Judge Clark, as he was the judge who dismissed the case on December 12, 2011. In substance, Judge Gargiulo undid any action he had taken on LaFontaine’s motion to reinstate her case, and referred her pending motion back to Judge Clark.

¶ 10. As the January 27 order left a pending motion to be dealt with by Judge Clark, the order is not a final judgment that ends the litigation on its merits and leaves the circuit court with nothing left to do but to execute the judgment. Because LaFontaine appeals from a nonfinal judgment, we are without appellate jurisdiction to entertain her appeal. For the foregoing reasons, we dismiss LaFontaine’s appeal, with costs assessed to LaFontaine.

¶11. APPEAL DISMISSED.

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

      . Rule 41(d) provides that, in any case in which there has been no action within the preceding twelve months, the clerk of court shall mail notice to the parties that the case will be dismissed unless, within thirty days from mailing of notice, action is taken or an application is made to the court to show good cause why the case shall be continued as a pending case. Miss. R. Civ. P. 41(d). The Rule also provides that the court shall dismiss each such case without prejudice if no action is taken or good cause is not shown. Id.

      . LaFontaine does not appeal Judge Clark's December 12, 2011, order dismissing her case for want of prosecution, and it does not appear from the record that Judge Clark has ruled on her motion to set aside judgment of dismissal.

      . Cotton v. Veterans Cab Co., Inc., 344 So.2d 730, 731 (Miss.1977).

      . Sanford v. Bd. of Supervisors, Covington County, 421 So.2d 488, 491 (Miss.1982) (citations omitted). See also Mississippi Waste of Hancock County, Inc. v. Bd. of Supervisors of Hancock County, 818 So.2d 326, 330 (Miss.2001) (citing Miss.Code Ann. § 11-51-3)). Mississippi Code Section 11-51-3 reads in relevant part: "[a]n appeal may be taken to the Supreme Court from any final judgment of a circuit or chancery court in a civil case....” Miss.Code Ann. § 11-51-3 (Rev. 2012).

      . Mississippi Waste, 818 So.2d at 330 (citing Sanford, 421 So.2d at 491).

      . Banks v. City Fin. Co., 825 So.2d 642, 645 (Miss.2002) (citing Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)), overruled on other grounds by Sawyers v. Herrin-Gear Chevrolet Co., Inc., 26 So.3d 1026 (Miss.2010).

      . Sanford, 421 So.2d at 491 (citation omitted).

      . See M.W.F. v. D.D.F., 926 So.2d 897 (Miss.2006) (dismissing appeal from non-final judgment for lack of appellate jurisdiction); Michael v. Michael, 650 So.2d 469, 471 (Miss.1995) (same); Cotton, 344 So.2d at 730 (same).


source: Caselaw Access Project

author: RUSSELL, J.,

license: Public Domain

text:
    Harvey Lee GARRETT, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00476-COA.
    Court of Appeals of Mississippi.
    Aug. 7, 2012.
    Rehearing Denied Nov. 27, 2012.
    Certiorari Denied April 11, 2013.

      Harvey Lee Garrett, appellant, pro se.
    John R. Henry Jr., attorney for appel-lee.
    Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. Harvey Garrett pled guilty to the sale of a controlled substance. On November 17, 2008, the circuit court sentenced him to seventeen years, with twelve years to serve in the custody of the Mississippi Department of Corrections (MDOC), followed by five years of post-release supervision. He was also ordered to pay a $5,000 fine with $2,500 suspended. Garrett filed a motion for post-conviction relief (PCR), which was denied.

¶ 2. He now appeals contending that (1) he was denied due process because he was convicted under a defective indictment; (2) the circuit court committed plain error by proceeding with the plea colloquy when the indictment did not name the buyer of the drugs; (3) he was innocent of the crimes charged under the indictment because the indictment failed to name the buyer; (4) his attorney was ineffective for failing to move to dismiss the indictment due to the alleged indictment defect. We find no error and affirm.

STATEMENT OF FACTS

¶ 3. On September 9, 2008, Garrett was indicted for the felony sale of cocaine in violation of Mississippi Code Annotated section 41-29-139 (Supp.2011). On October 14, 2008, Garrett entered a guilty plea to this charge. On November 17, 2008, Garrett was sentenced to seventeen years, with twelve years to serve and five years of post-release supervision. Thereafter, Garrett filed a PCR motion alleging that the indictment was defective and that he received ineffective assistance of counsel. On May 26, 2009, the circuit court denied Garrett’s PCR motion.

¶ 4. On September 24, 2010, Garrett filed a second PCR motion arguing his indictment was defective because it did not state the name of the buyer he sold the cocaine to; that the trial court committed plain error by proceeding with the plea colloquy when the indictment did-not name the buyer; that his attorney was ineffective for failing to move to dismiss the indictment due to the alleged defect; and that he was innocent. On March 31, 2011, the circuit court denied relief without an evidentiary hearing, finding the current motion barred by Mississippi Code Annotated section 99-39-23(6) (Supp.2011), since it was the second or subsequent PCR motion filed by Garrett. The court further found that Garrett’s PCR motion had absolutely no chance of success and was frivolous. Because the court found Garrett’s previous motion was also frivolous, one hundred twenty days of his earned time credit were forfeited pursuant to Mississippi Code Annotated section 47-5-138 (Rev.2011). On April 4, 2011, Garrett filed his notice of appeal.

DISCUSSION

¶ 5. “When reviewing a lower court’s decision to deny a petition for post-conviction relief, an appellate court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised, the applicable standard of review is de novo.” Gavin v. State, 72 So.3d 570, 572 (¶ 4) (Miss.Ct.App.2011) (citing Moore v. State, 986 So.2d 928, 932 (¶ 13) (Miss.2008)) (citation omitted). We note at the outset that Garrett’s second PCR motion is barred as a successive writ. See Miss. Code Ann. § 99-39-23(Supp.2011). Notwithstanding this procedural bar, we will address the issues raised by Garrett.

¶ 6. The issue of whether a circuit court erred in denying a PCR motion without an evidentiary hearing is viewed de novo. Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss.1999). The right to an evidentiary hearing is not guaranteed. The trial judge has discretion in allowing an evidentiary hearing, and “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the prisoner to be notified.” Evans v. State, 61 So.3d 922, 927 (¶ 19) (Miss.Ct.App.2011) (quoting Miss.Code Ann. § 99-39-11(2) (Rev.2000)).

¶ 7. Garrett filed two PCR motions in the same court where he pled guilty, which were both denied. It is therefore plausible that the court could have, after considering all prior evidence and from the face of the motion, found that Garrett was not entitled to any relief. Thus, the denial of an evidentiary hearing was proper.

I. Indictment

¶ 8. Garrett contends that his indictment was defective because it failed to state the name of the confidential informant to whom he sold the drugs. He further contends that because of the defect, the circuit court erred by allowing the State to proceed under the indictment, and that he was innocent of the crimes charged. The indictment reads as follows:

On or about July 14, 2008, in Montgomery County, Mississippi, and within the jurisdiction of this Court, [Garrett] did wilfully, unlawfully, feloniously, and purposely or knowingly sell, transfer, distribute or deliver to a human being a controlled substance, to wit: [cjocaine, a Schedule II controlled substance as listed in [s]ection 41-29-115(A)(a)(4) [ (Supp.2011) ] of the Mississippi Code Annotated ... and did then and there receive therefor the sum of lawful United States money, in violation of [s]ection 41-29-139(a)(l) of the Mississippi Code Annotated ... and against the peace and dignity of the State of Mississippi.

¶ 9. “A guilty plea operates to waive the defendant’s privilege against self-incrimination, the right to confront and cross-examine the prosecution’s witnesses, the right to a jury trial and the right that the prosecution prove each element of the offense beyond a reasonable doubt.” Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989). There are two exceptions to the general rule. A guilty plea does not waive the defendant’s right to assert that the indictment fails to charge an essential element of the crime, nor does it waive subject-matter jurisdiction. Id.

¶ 10. First we must address whether the indictment failed to charge an essential element of the crime when it did not include the name of the buyer of the drugs. It is imperative that an indictment contain the essential elements of the crime with which the accused is charged. McCollum v. State, 785 So.2d 279, 283 (¶ 11) (Miss.2001). Garrett was indicted pursuant to Mississippi Code Annotated section 41 — 29—139(a)(1), which prohibits any person from willfully, unlawfully, felo-niously, and purposely or knowingly selling a controlled substance.

¶ 11. The statute does not list the identity of the buyer of the drugs as an essential element of the crime. In fact, the supreme court has held that “[t]he identity of the person to whom drugs are sold does not change the essence of the offense, since such identity is not an element of the offense.” Jones v. State, 912 So.2d 973, 976 (¶ 10) (Miss.2005).

¶ 12. We find that the buyer’s name did not have to be included in the indictment, as it was not an essential element of the crime of the sale of a controlled substance, with which Garrett was charged. Therefore, the circuit court did not err by allowing the State to proceed under the indictment.

II. Ineffective Assistance of Counsel

¶ 13. To establish a claim of ineffective assistance of counsel, Garrett must prove that under the totality of the circumstances: (1) his attorney’s performance was deficient; and (2) the deficiency deprived him of a fair trial. See Baldwin v. State, 923 So.2d 218, 222 (¶ 12) (Miss.Ct.App.2005) (quoting Jackson v. State, 815 So.2d 1196, 1200 (¶ 8) (Miss.2002)). Where a defendant enters a plea on advice of counsel, the attorney’s performance is deemed “deficient” for purposes of the Strickland standard only if it falls below “the range of competence demanded of attorneys in criminal cases.” Id. (quoting Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).

¶ 14. There is a rebuttable presumption that counsel performed within the accepted range of competence for a criminal attorney. Belk v. State, 8 So.3d 272, 275 (¶ 12) (Miss.Ct.App.2009) (citing Chase v. State, 699 So.2d 521, 526 (Miss.1997)) (citation omitted). To succeed on a claim of ineffective assistance of counsel, the defendant must prove that counsel’s performance was deficient, and that this deficiency was prejudicial to his defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687-91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)) (citation omitted).

¶ 15. During the plea hearing, the following exchanges took place between the circuit court judge and Garrett:

Q: Did you have an opportunity to have your lawyer read this petition to enter a plea of guilty to you?
A: Yes, sir.
Q: When she read it to you, did you understand the contents of this petition?
A: Yes, sir.
Q: ... Now, have you had an opportunity to go over the charges that have been brought against you in this case with your attorney ... ?
A: (No response).
Q: Has she discussed the case with you and counseled with you about it?
A: Well, yeah.
Q: And has she advised you of the elements of the crime of sale of cocaine, that being the facts the State would have to prove before you could be found guilty?
A: Yes, sir.
Q: Has she also discussed with you any possible defenses you might have to the charge?
A: Right.
Q: Has she met the expectations of what you think a lawyer representing you in this case should do for you?
A: Well, I — yeah.
Q: And do you have any complaints about that representation?
A: No, sir. All I ask, if ya’ll could just give me, you know, reduce the time a little bit. That’s the only thing I want.
Q: Of course, that is not in the control of your lawyer. You understand that?
A: No. That’s the only thing I’m asking ya’ll, because, you know, I got a daughter, you know, I want to see through school and everything.
Q: Are you completely and totally satisfied in all respects with the representation you have received from [your] lawyer?
A: Yes. Yes, sir.
Q: And is this plea of guilty your free and voluntary act?
A: Yes, sir.
Q: ... Did you sell cocaine on that date as just stated to me by the district attorney?
A: I — yeah.
Q: And are you pleading guilty because you are, in fact, guilty?
A: Yeah.

¶ 16. Where a defendant does not question his guilt, nor does he suggest any impairment to any defense that might have been made available to him, this Court has declined to hold that such defendant received ineffective assistance of counsel. Sutton v. State, 873 So.2d 120, 124 (¶ 19) (Miss.Ct.App.2004).

¶ 17. Garrett further contends that he was without sufficient notice to prepare his defense. We find there was sufficient notice of the crucial elements of the offense, that he sold and delivered to another person a controlled substance. Furthermore, we have found nothing in the record to suggest that Garrett’s attorney’s performance was deficient, and Garrett has failed to provide any evidence in support of his claim. He relies solely on his allegations to support his claim of ineffective assistance of counsel, and this is insufficient to pass the Strickland test. Thus, we find the circuit court did not err by dismissing Garrett’s claim of ineffective assistance of counsel.

CONCLUSION

¶ 18. For the forgoing reasons, we affirm the judgment of the Montgomery County Circuit Court.

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

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

      . We note that Garrett does not contest the imposition of sanctions on appeal.

      . See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


author: LEE, C.J.,

text:
    KNIGHT’S MARINE & INDUSTRIAL SERVICES INC., Appellant v. Steve LEE, Liberty Mutual Insurance Company and Fox-Everett, Inc., Appellees.
    No. 2010-CA-01752-COA.
    Court of Appeals of Mississippi.
    Aug. 7, 2012.
    Rehearing Denied Dee. 4, 2012.
    Certiorari Denied April 11, 2013.

      Michael T. Jaques, Ridgeland, David Wayne Baria, John F. Hawkins, Bay St. Louis, attorneys for appellant.
    Clifford Kavanaugh Bailey III, Edward J. Currie Jr., Jackson, Steven H. Begley, Lana E. Gillon, Eric Reynolds Price, Ridgeland, Thomas E. Schwab, attorneys for appellees.
    Before LEE, C.J., ISHEE and FAIR, JJ.
   LEE, C.J.,

for the Court:

¶ 1. This case concerns a suit brought by Knight’s Marine and Industrial Services Inc. (KM) against Steven Lee, an insurance agent; Fox-Everett, Lee’s employer; and Liberty Mutual Insurance Company (Liberty). KM’s cause of action centered around a workers’ compensation and employers’ liability policy issued by Liberty to Infinity Services of Mississippi LLC (Infinity).

PROCEDURAL HISTORY

¶ 2. Liberty filed a motion for partial summary judgment, which Lee and Fox-Everett joined. Liberty styled the motion as partial because it was not seeking summary judgment on its counterclaim against KM. After a hearing on the motion, the trial court granted summary judgment in favor of Liberty, finding KM was not a third-party beneficiary under the policy between Liberty and Infinity. The trial court ultimately dismissed all claims regarding Liberty. The trial court granted partial summary judgment in favor of Lee and Fox-Everett, finding KM was not a third-party beneficiary and, thus, could not bring a breach-of-contract claim. The trial court allowed KM’s remaining claims against Lee and Fox-Everett to move forward.

¶ 3. KM now appeals, asserting the following issues: (1) the trial court erred in finding KM was not a third-party beneficiary to the contract between Liberty and Infinity; (2) the trial court erred in finding Liberty could not be held vicariously liable for the acts of its agent; (3) the trial court erred in dismissing KM’s claims of negligence and gross negligence against Liberty; and (4) the trial court erred in granting partial summary judgment in favor of Lee and Fox-Everett.

FACTS

¶ 4. In late 2000, Infinity applied for workers’ compensation coverage through the Mississippi Workers’ Compensation Assigned Risk Plan and Pool. The plan administrator appointed Liberty to be the servicing carrier. In late 2001, Liberty provided Infinity with a workers’ compensation policy subject to the Longshore and Harbor Workers’ Compensation Act (LHWCA). The policy stated only employees working in Mississippi were covered. Infinity’s agent was Lee, who worked for Fox-Everett. KM was not a named insured or an additional insured under the terms of the policy between Liberty and Infinity.

¶ 5. KM is a Mississippi corporation engaged in the business of supplying skilled labor to industrial and marine clients both inside and outside Mississippi. In August 2001, KM entered into a contract with Infinity, wherein Infinity would provide laborers and payroll services to KM. David Knight, owner of KM, stated he had met with Lee and Richard Myers, owner of Infinity, to discuss Infinity’s insurance coverage and to ensure Infinity had the proper coverage for laborers it would be providing to KM. Knight asserted he was assured by Lee that Infinity’s workers’ compensation coverage would apply to laborers provided to KM, including those working outside of Mississippi.

¶ 6. In March 2002, Liberty received a policy-change request from Infinity asking Liberty to add a waiver of subrogation in favor of KM. Liberty requested to be provided certain information from Infinity before it could add the waiver to the policy; however, Liberty never received any information and never added the waiver of subrogation to the policy.

¶ 7. Ultimately, several of Infinity’s employees were injured while working outside of Mississippi; some were working at one of KM’s locations outside Mississippi. Liberty did pay some of the claims before determining these particular employees were not covered because they were working outside the state. Infinity subsequently notified KM that it could no longer provide laborers to KM for jobs to be performed outside of Mississippi. KM contended it subsequently sustained economic losses of approximately two million dollars.

STANDARD OF REVIEW

¶ 8. In reviewing a trial court’s grant of summary judgment, this Court employs a de novo standard of review. Anglado v. Leaf River Forest Prods., Inc., 716 So.2d 543, 547 (¶ 13) (Miss.1998). Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). This Court will consider all of the evidence before the trial court in the light most favorable to the nonmoving party. Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995). The party opposing the motion “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e).

DISCUSSION

I. THIRD-PARTY BENEFICIARY

¶ 9. KM argues the trial court erred in finding it was not a third-party beneficiary to the insurance contract between Liberty and Infinity. KM concedes it was not a named insured or an additional insured under the terms of the Liberty-Infinity contract. However, KM contends it was afforded direct and substantive rights under the contract; thus, it was a third-party beneficiary.

¶ 10. In Burns v. Washington Savings, 251 Miss. 789, 796, 171 So.2d 322, 325 (1965), the Mississippi Supreme Court stated the following in regard to actions to enforce the breach of a contract or to recover damages stemming from the breach:

In order for the third[-]person beneficiary to have a cause of action, the contracts between the original parties must have been entered into for his benefit, or at least such benefit must be the direct result of the performance within the contemplation of the parties as shown by its terms. There must have been a legal obligation or duty on the part of the promisee to such third[-]person beneficiary. This obligation must have been a legal duty which connects the beneficiary with the contract. In other words, the right of the third[-]party beneficiary to maintain an action on the contract must spring from the terms of the contract itself.

¶ 11. In Yazoo & M.V.R. Co. v. Sideboard, 161 Miss. 4, 14, 133 So. 669, 671 (1931), the Mississippi Supreme Court developed the following to aid to determine when a particular case comes within the third-person-beneficiary rule:

(1) When the terms of the contract are expressly broad enough to include the third party either by name as one of a specified class, and (2) the said third party was evidently within the intent of the terms so used, the said third party will be within its benefits, (3) if the promisee had, in fact, a substantial and articulate interest in the welfare of the said third party in respect to the subject of the contract.

The supreme court held in 1987 the analysis in Yazoo was still valid. Miss. High Sch. Activities Ass’n v. Farris ex rel. Farris, 501 So.2d 393, 396 (Miss.1987). Furthermore, “[a] mere incidental, collateral, or consequential benefit” is insufficient for the third party to maintain an action. Burns, 251 Miss. at 796, 171 So.2d at 324-25 (citations omitted).

¶ 12. The language of the contract between Liberty and Infinity clearly states the agreement is between those two entities. There is also no language identifying KM either by name or as a member of a specified class of beneficiaries. There is no language reflecting the intent of either party to include KM as a beneficiary.

¶ 13. KM argues the primary reason Infinity and Liberty entered into their contract was to insure Infinity’s workers performing work for KM were insured. However, KM offered no applicable evidence to support this claim. According to the contract between Infinity and Liberty, which was entered into prior to the date of the purported contract between Infinity and KM, Liberty was to supply Infinity with insurance coverage for Infinity’s workers. Neither KM nor any company other than Infinity and Liberty are mentioned in the insurance coverage contract. KM cites to a Liberty claim note and a Liberty audit of premiums to support its claims. However, the Liberty claim note was issued subsequent to the issuance of the policy between Liberty and Infinity. The claim note also states Infinity was Liberty’s client, not KM. The claim note provides no evidence that Liberty and Infinity entered into the contract for KM’s benefit. The audit of premiums references Knights’ Piping as Infinity’s largest client. However, the record includes a confidentiality statement between KM and Infinity that states Knights’ Piping is in no way affiliated with KM. This statement is signed by Myers, Infinity’s owner. Furthermore, this audit was completed in April 2002, well after the subject claims were denied.

¶ 14. KM also contends the terms of the contract between Infinity and KM required Infinity to carry insurance for supplied workers. The documents referenced by KM do not include a signed contract between KM and Infinity. Instead, the documents include a letter from Myers to Knight, KM’s owner, discussing: pricing structure but containing no mention of insurance; a non-compete agreement; a confidentiality statement; new account information; and an unsigned agreement titled “Client Terms and Conditions.” All of these documents were dated well after the Liberty-Infinity contract. Furthermore, none of these documents relate to that contract.

¶ 15. KM offers in support of its argument a certificate of insurance, a waiver of subrogation, and Lee’s applications to obtain coverage. However, the certificate of insurance applies to KM as the proposed insured for another policy. This certificate of insurance was not related to the contract between Liberty and Infinity. These documents contain no reference to Liberty, and Liberty did not prepare them. In March 2002, Liberty received a request from Infinity to add a waiver of subrogation in favor of KM. Liberty sent a letter to Infinity advising that it had received the waiver request but needed certain information before considering whether to add the waiver to the policy. According to the affidavit of a Liberty employee as well as business documents from Liberty, no waiver was ever issued because Infinity never responded with the information requested by Liberty. The applications by Lee were not related to the policy between Infinity and Liberty.

¶ 16. Although KM benefited from the contract between Liberty and Infinity, KM was an incidental beneficiary. The policy was not created to directly benefit KM or other companies Infinity provided with workers. We cannot find from the evidence presented by KM that KM was a third-party beneficiary to the contract between Liberty and Infinity. This issue is without merit.

II. VICARIOUS LIABILITY OF LIBERTY

III. ALLEGATIONS OF NEGLIGENCE

¶ 17. KM argues the trial court erred in finding Liberty could not be held vicariously liable for any claims asserted against Lee and Fox-Everett. KM also asserts the trial court erred in dismissing KM’s claims against Liberty of negligence, gross negligence, tortious interference with business relations, and wrongful interference with its contract against Liberty.

¶ 18. Having found KM was not a third-party beneficiary to the contract, we must find KM does not have standing to bring this claim. We have found KM to be an incidental beneficiary, and “[a] mere incidental beneficiary acquires by virtue of the contractual obligation no right against the promisor or promisee.” See Farris, 501 So.2d at 396 (quoting Hartford Accident & Indem. Co. v. Hewes, 190 Miss. 225, 234, 199 So. 93, 95 (1940)).

IV. SUMMARY JUDGMENT IN FAVOR OF LEE AND FOX-EVERETT

¶ 19. In its final issue on appeal, KM contends the partial summary judgment granted in favor of Lee and Fox-Everett was unclear and, thus, cannot be considered a final judgment.

¶20. The trial court’s order granting partial summary judgment states:

KM is an incidental third[-]party beneficiary of the Liberty Mutual insurance policy issued to Infinity. As such, KM does not have standing to sue Liberty Mutual, Steve Lee or Fox-Everett for their alleged breach of contract and all claims stemming [from] the breach thereof. As such, Defendants Liberty Mutual, Steve Lee, and Fox-Everett’s Motion for Partial Summary Judgment should be, and is hereby, GRANTED.

The language in the trial court’s final judgment and order of partial dismissal reads as follows:

Pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure, the Court expressly determines that there is no just reason for delay in the entry of a Final Judgment and expressly directs the entry of this Final Judgment, dismissing with prejudice the claims of KM against Fox-Everett, Inc. and Steve Lee based upon a third-party beneficiary breach of contract, and all claims stemming therefrom.

¶21. From this language, KM argues: “It cannot be reasonably determined which claims plead[ed] against Lee and Fox-Everett [were] within the scope of the judgment ] and dismissed by the trial court.” We cannot find that the order is unclear. In the next paragraph of the order, the trial court states: “[T]he claims against Fox-Everett, Inc. and Steve Lee based upon a third-party beneficiary breach of contract, and all claims stemming therefrom, should be, and the same are, dismissed with prejudice. All remaining claims of the plaintiff against Fox-Everett, Inc. and Steve Lee remain before the [c]ourt.” KM raised issues in its complaint other than those based on its alleged status as a third-party beneficiary. These claims were left viable by the trial court. This issue is without merit.

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

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ„ CONCUR.

      . The policy was originally issued to P & L Properties LLC in 2000. Shortly thereafter, P & L became Infinity Services, and the policy was renewed with Infinity in late 2001.

      . The Mississippi Workers’ Compensation Assigned Risk Plan was created by the Legislature to provide workers' compensation coverage to employers who are unable to obtain insurance in the "voluntary market.” Miss. Code Ann. § 71-3-111(6). The statute directs the Department of Insurance "to promulgate such rules and regulations as will enable the department to provide the ‘Mississippi Workers’ Compensation Assigned Risk Plan’ for the assignment of risks” which are required to have workers’ compensation insurance but which are unable to obtain it. Miss. Code Ann. § 71-3-111(1) (Rev.2011).


author: BARNES, J., RUSSELL, J.,

text:
    Nicholas Paul FONTENOT a/k/a Nicholas Fontenot, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00700-COA.
    Court of Appeals of Mississippi.
    Oct. 9, 2012.
    Rehearing Denied Mar. 19, 2013.

      Erin Elizabeth Pridgen, attorney for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
   BARNES, J.,

for the Court:

¶ 1. Nicholas Paul Fontenot was convicted of possession of a controlled substance and sentenced to eight years in the custody of the Mississippi Department of Corrections (MDOC), with one year and one day to serve, and the remainder of the sentence to be served under post-release supervision. The circuit court denied Fon-tenot’s post-trial motion, and he now appeals. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. On October 22, 2009, the Gulfport Police Department received an anonymous tip that Justin Overall was making methamphetamine (also referred to in this opinion as “meth”) at the Ramada Inn in Gulf-port, Mississippi. Police obtained a photo of Overall for identification purposes and proceeded to the hotel. However, the hotel clerk told police that no one under that name was registered at the hotel. The police continued to observe the hotel and became suspicious when they saw a man, who was later identified as James White, quickly cross the parking lot and enter Room 102. They also spotted Overall, who exited and quickly re-entered the room. The plain-clothed officers decided to question the men. As the police approached the hotel room, they encountered Overall and White exiting the room, leaving the door partially open. The police identified themselves and detained the men. The officers observed a hollowed-out ink pen, which is commonly used to smoke meth, behind Overall’s ear.

¶ 3. Looking through the open door, the officers noticed another man, who was later identified as Fontenot, in the hotel room. He had his back to the officers and was leaning over a small table with various items on it. One of the items was a plastic bag that contained a white, powdery substance, which was later determined to be .2 grams of methamphetamine. Police asked Fontenot to come out of the room, and he complied. Fontenot fumbled with something in his hands, and he dropped several pills and a small, empty vial on the ground. The pills were Xanax, a drug used to treat anxiety disorders. After obtaining a search warrant, the police found no precursors for the production of methamphetamine. They did find Fontenot’s wallet next to the plastic bag containing the methamphetamine.

¶4. On January 27, 2011, a Harrison County jury convicted Fontenot of possession of a controlled substance in violation of Mississippi Code Annotated section 41-29-139(c)(l) (Rev.2009). The circuit court sentenced him to eight years in the custody of the MDOC, with one year and one day to serve, and the remainder of his sentence to be served under post-release supervision. Fontenot filed a motion for a judgment notwithstanding the verdict (JNOV), or in the alternative, a new trial, which was denied by the circuit court. Fontenot appeals the denial of his motion, and finding no error, we affirm the court’s judgment.

STANDARD OF REVIEW

¶ 5. “[A] motion for a JNOV challenge[s] the legal sufficiency of the evidence.” Wells v. State, 57 So.3d 40, 45 (¶ 10) (Miss.Ct.App.2011) (citing Bush v. State, 895 So.2d 836, 843 (¶16) (Miss.2005)). Viewing the evidence in the light most favorable to the State, “we will not disturb the circuit court’s ruling if ‘the evidence shows beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.’ ” Id.

Whether there was sufficient evidence that Fontenot had constructive possession of the methamphetamine.

¶ 6. The Mississippi Supreme Court has held: “To support a conviction for possession of a controlled substance, ‘there must be sufficient facts to warrant a finding that the defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.’ ” Glidden v. State, 74 So.3d 342, 345 (¶ 12) (Miss.2011) (quoting Wall v. State, 718 So.2d 1107, 1111 (¶ 13) (Miss.1998)). “Possession of a controlled substance may be actual or con-struetive[J” Johnson v. State, 81 So.3d 1020, 1023 (¶ 7) (Miss.2011) (citation omitted). Because Fontenot did not have actual possession of the methamphetamine, he was convicted under the theory of constructive possession. See Glidden, 74 So.3d at 345 (¶ 12) (“When ... a defendant does not physically possess the illegal drugs, the State must prove constructive possession of the drugs in order to prevail.”). Fontenot claims there was insufficient evidence that he was in constructive possession of methamphetamine; therefore, the circuit court erred in denying his motion for a JNOV.

¶ 7. Fontenot was standing over a night stand that bore several items, including the plastic bag containing the methamphetamine. Fontenot also admitted to police he had picked up the bag and looked at it, and he was aware the substance was methamphetamine or cocaine. At the post-arrest police interview, Overall said that Fontenot had been smoking meth with White. Overall also stated that he left the room that morning to get more clothes, and when he returned, there were pieces of foil on the floor, which is used for smoking meth. However, Overall later contradicted this statement, testifying at trial that the bag of meth was his. Overall claimed that he bought the Xanax from someone at a local Walmart, and then traded Xanax for some meth. Overall also said that, on the evening prior to the arrests, he had picked up a woman at a local bar, taken her to the hotel room, and proceeded to smoke meth with her. He admitted that Fontenot was present in the room that evening but claimed that Fonte-not did not take drugs.

¶ 8. It is the province of the jury “to decide the weight and credibility to be assigned to the testimony of each witness.” Glidden, 74 So.3d at 349 (¶ 21). Overall was under the influence of Xanax and methamphetamine the evening prior to the arrest. He confessed that there were times that evening and the next morning that he was not aware of what Fontenot was doing. When asked if he remembered being at the hotel room, Overall testified: “Bits and pieces. I was so induced on the crystal that I remember just bits and pieces of it, but yes, ma’am.”

¶ 9. “Possession, no matter how fleeting, is sufficient to sustain a conviction. Possession is defined, however, in terms of the exercise of dominion and control.” Berry v. State, 652 So.2d 745, 751 (Miss.1995). To establish constructive possession, the drug simply has to be found near the defendant “in a place over which the defendant exercises dominion or control.” Glidden, 74 So.3d at 348 (¶ 20) (quoting Hudson v. State, 30 So.3d 1199, 1204 (¶ 11) (Miss.2010)). However, a defendant’s proximity to the drugs is not a determinative factor in establishing constructive possession. Knight v. State, 72 So.3d 1056, 1063 (¶26) (Miss.2011) (citing Dixon v. State, 953 So.2d 1108, 1112 (¶ 9) (Miss.2007)). When illegal substances are found on premises not owned by the defendant, “the State must show other incriminating circumstances, in addition to proximity, in order to prove constructive possession.” Cheatham v. State, 12 So.3d 598, 601 (¶ 7) (Miss.Ct.App.2009) (citing Fultz v. State, 573 So.2d 689, 690 (Miss.1990)).

¶ 10. Fontenot admitted that he was aware of the “presence and character” of the methamphetamine. The question is whether Fontenot had demonstrated “dominion or control” over the contraband. It was never established who had rented the hotel room. However, the methamphetamine was lying in plain sight next to Fontenot’s wallet. There were clothes and shoes scattered around the room, and many of the items belonged to Fontenot. Fontenot also possessed Xanax and a vial that had contained the pills he had dropped. A cap matching the container (vial) that he had in his possession was on the table next to his wallet and the bag of methamphetamine.

¶ 11. Fontenot cites Mauldin v. State, 750 So.2d 564 (Miss.Ct.App.1999), to support his argument that his momentary handling of contraband did not constitute dominion and control. Mauldin, however, is distinguishable from the present case. Derward Mauldin picked up a cigarette case owned by someone else, and then returned it to the original owner’s possession. Immediately afterwards, security personnel searched the case, and found a small amount of methamphetamine inside. Id. at 565 (¶ 3). Mauldin was convicted of constructive possession of a controlled substance. This Court reversed and rendered the judgment, finding that Mauldin had no control over the case; it had been handed back to its owner. Id. at 566 (¶¶ 8, 13). Fontenot, on the other hand, was standing next to the bag of meth, which was lying next to his wallet. He was the only one in the room; Overall and White had already left of their own accord.

¶ 12. “The elements of constructive possession may be proven by circumstantial evidence.” Bates v. State, 952 So.2d 320, 325 (¶ 21) (Miss.Ct.App.2007) (citing Martin v. State, 413 So.2d 730, 732 (Miss.1982)). Fontenot was standing over the bag of methamphetamine and was the only person inside the hotel room when the police arrived at the door. We do not find it unreasonable that the jury determined Fontenot was exerting “dominion or control” over the methamphetamine. “If reasonable jurors could have reached different conclusions with respect to every element of the offense, the evidence will be considered sufficient.” Stingley v. State, 966 So.2d 1269, 1272 (¶ 10) (Miss.Ct.App.2007) (citing Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005)).

¶ 13. Therefore, viewing the evidence in the light most favorable to the State, we find there was sufficient evidence to convict Fontenot of constructive possession of the methamphetamine, and a rational juror could have found that the State proved all of the elements of the offense beyond a reasonable doubt. This issue is without merit.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE AND SENTENCE OF EIGHT YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH ONE YEAR AND ONE DAY TO SERVE AND THE REMAINDER TO BE SERVED UNDER POST-RELEASE SUPERVISION, AND TO PAY A $2,000 FINE, $200 TO THE CRIME VICTIMS’ COMPENSATION FUND, AND $50 IN RESTITUTION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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

RUSSELL, J.,

dissenting:

¶ 15. The majority finds that there was sufficient evidence to support Fontenot’s conviction for constructive possession. I disagree. I would find that the State failed to prove, beyond a reasonable doubt, that Fontenot was in constructive possession of the methamphetamine found on the hotel-room table. Therefore, I respectfully dissent.

¶ 16. Our standard of review for a JNOV motion, which challenges the legal sufficiency of the evidence, is as follows:

When examining the sufficiency of evidence in the grant or denial of a motion for directed verdict or for [a] judgment notwithstanding the verdict, it is necessary to determine whether the evidence shows beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test[,] it is insufficient to support a conviction. If any facts or inferences point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is for the appellate court to reverse and render.

Johnson v. State, 81 So.3d 1020, 1023 (¶ 6) (Miss.2011) (internal citations and quotations omitted).

¶ 17. “Possession of a controlled substance may be actual or constructive.” Id. at (¶ 7). To establish constructive possession, “there must be sufficient facts to warrant a finding that [the] defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.” Id. (quoting Curry v. State, 249 So.2d 414, 416 (Miss.1971)). “Constructive possession may be shown by establishing that the drug involved was subject to the defendant’s dominion or control.” Id. at (¶8).

¶ 18. “A presumption of constructive possession arises against the owner of premises upon which contraband is found.” Cunningham v. State, 583 So.2d 960, 962 (Miss.1991). “However, when contraband is found on premises which are not owned by [the] defendant, mere physical proximity to the contraband does not, in itself, show constructive possession.” Id. Instead, “the [S]tate must show additional incriminating circumstances to justify a finding of constructive possession.” Id. (quoting Fultz v. State, 573 So.2d 689, 690 (Miss.1990)). Further, “where the premises upon which contraband is found [are] not in the exclusive possession of the accused, the accused is entitled to acquittal, absent some competent evidence connecting him with the contraband.” Id. (quoting Powell v. State, 355 So.2d 1378, 1379 (Miss.1978)). “[W]hen contraband is found on premises, there must be evidence, in addition to physical proximity, showing the defendant consciously exercised control over the contraband, and, absent this evidence, a finding of constructive possession cannot be sustained.” Id.

¶ 19. In this case, the officers never determined who rented the hotel room where the plastic bag containing methamphetamine was found. Therefore, the State was required to submit additional incriminating evidence to prove constructive possession. See id. The State failed to do so. The only evidence consisted of: (1) officers observing Fontenot leaning over the table containing the bag of methamphetamine; (2) officers observing Fon-tenot’s wallet lying next to the bag on the table; (3) officers observing Fontenot’s shoes and clothing inside the hotel room; (4) Officer Daniel Castillo’s testimony that Fontenot told him “he picked [up the bag] and looked at it and knew it to be either meth or cocaine”; and (5) Overall’s inconsistent statements.

¶ 20. Of course, items (1) thru (3) above deal with proximity, which is not enough to prove constructive possession, especially in light of the fact that several people had been in and out of the hotel room, and because the State failed to establish who rented the room. Additionally, clothing and other items belonging to Overall were found in the hotel room along with some items belonging to Fontenot. In my view, the fact that Fontenot happened to be the only person in the hotel room when the police approached Overall and White outside of the room is not indicative of Fonte-not’s possession, either actual or constructive, of the illegal drugs. Immediately prior to approaching Overall and White, the police had observed them going in and out of the room.

¶ 21. As to item (4), if this statement was made, it would support Fontenot’s position in that he did not know the “character” of the substance; instead, he said it was “either meth or cocaine.” I also note that there was not a scintilla of evidence that Fontenot exercised dominion or control over the bag other than his alleged statement, which, in my view, favors Fon-tenot more than hurts him. There is also no evidence that Fontenot intentionally or consciously possessed the bag other than briefly picking it up.

¶ 22. Finally, as to item (5) above, Overall made a statement to police that Fontenot had been smoking methamphetamine because there were pieces of foil on the floor, which had been used for smoking methamphetamine. At trial, Overall testified that he did not remember making this statement because he was high at the time and could not remember much from that day. Although Overall did not deny making the statement, he also testified that if he made such a statement, it was a lie because he was trying to place the blame elsewhere while he was high. Overall never stated that Fontenot was smoking meth from the bag found on the table in the hotel room. At the time of Fontenot’s trial, Overall had already pleaded guilty to possessing the same bag of methamphetamine found in the hotel room and was serving a sentence for his conviction. He testified that the bag of drugs found in the room was his, and that Fontenot had nothing to do with the bag. While Overall’s inconsistent statements go towards his credibility, which is clearly an issue for the jury, I would find that the State failed to prove Fontenot’s constructive possession beyond a reasonable doubt.

¶ 23. Fontenot’s mere presence at the hotel and proximity to the drug, absent additional incriminating evidence, are not sufficient to sustain his conviction of constructive possession of methamphetamine. See Johnson, 81 So.3d at 1026 (¶ 23); Cunningham, 583 So.2d at 962. Because the State failed to present sufficient evidence of constructive possession beyond a reasonable doubt, I would reverse Fontenot’s conviction and render judgment in his favor.

IRVING, P.J., AND ISHEE, J., JOIN THIS OPINION.

      . Fontenot was placed on three years of reporting post-release supervision, with the remainder to be served as non-reporting.

      . Overall pleaded guilty to the charge of possession of methamphetamine in the week preceding Fontenot’s trial. The circuit court admitted Overall’s prior inconsistent statement into evidence since Overall had testified that he did not recall talking to the police after the arrest. See Harrison v. State, 534 So.2d 175, 180 (Miss.1988) ("When a witness fails in any manner to acknowledge the making of a statement, the impeacher is obligated to offer proof establishing the making of that statement, assuming, of course, that the issue is relevant.”).

      . No foil was ever found.


author: ISHEE, J.,

text:
    Henry Lee CRAIG a/k/a Henry Craig a/k/a “Ju” a/k/a “Ju Man” a/k/a Fleetwood, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01283-COA.
    Court of Appeals of Mississippi.
    Nov. 6, 2012.

      George T. Holmes, Jackson, Mollie M. McMillin, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In 2011, Henry Lee Craig was convicted of murdering Silas Miller. Craig was sentenced by the Jackson County Circuit Court to life in the custody of the Mississippi Department of Corrections (MDOC). Craig filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The circuit court denied Craig’s motion. Aggrieved, Craig now appeals. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In May 2009, Miller became involved in an altercation with Floyd Broadnax at a house on Barnett Street in Moss Point, Mississippi. Miller shot Broadnax after the two men had exchanged heated words; however, Broadnax was not seriously injured. After Miller shot Broadnax, Miller quickly rode his bicycle to his own home on Barnett Street. Upon arrival at his house, Miller was shot in the stomach by a man wearing dark pants and a white shirt.

¶ 3. Authorities arrived at Miller’s house soon after the shooting and found Miller seriously injured but conscious. Before being taken to a nearby hospital by ambulance, Miller told police officers that Broadnax had shot him. Miller died at the hospital shortly thereafter.

¶ 4. Broadnax was questioned by authorities but refused to give any official statements to the police. Instead, Broadnax merely acknowledged that he had witnessed the crime and that the shooter was a man wearing black pants and a white shirt. However, Broadnax later testified that after Miller shot him, he observed Miller ride his bicycle back to his house, open the door, and get shot in the back by Craig, who was waiting inside Miller’s house. Broadnax stated that Miller was not looking inside the house as he opened the door and, therefore, could not see who had shot him.

¶ 5. Police officers also questioned several residents on Miller’s street. Katrina Viverette and her husband, Kenneth Viv-erette, stated that they were inside their house when they heard several gunshots. When the shooting stopped, the couple looked through the window and saw a man wearing black pants, a white shirt, a bandana, and a cap walking west down the street carrying a gun. Soon thereafter, Katrina went to her front door and saw Broadnax walking onto her porch from the east. Broadnax suggested that Katrina call 911 and stated that Miller had been shot. Broadnax did not tell Katrina or her husband that Craig was the shooter. At trial, Katrina and Kenneth both testified that they saw the shooter walking west on Barnett Street and that Broadnax was not the shooter. However, neither could identify Craig as the shooter.

¶ 6. Another resident, Perry Kelly, was gathered in his front yard with Billy Ray Hamilton and Reuben Fountain when the shots rang out. None of the men witnessed the shooting. Kelly claimed to have seen a man walking down the street wearing blue jeans and a white shirt but did not see the man with a weapon. Hamilton testified that he witnessed a man walking down the street wearing black pants and a white shirt with a gun in his hand. Finally, Fountain testified that he saw Craig standing in front of Miller’s house a few minutes after the shooting with a gun in his hand, and then he saw Craig walk west on Barnett Street. However, Fountain did not provide the police with an eyewitness statement until over a year after Miller was killed.

¶ 7. Broadnax’s cousin, Jermaine Huck-leby, was another Barnett Street resident. He testified to having seen Craig shoot Miller as Miller started to enter his own house. Nonetheless, Huekleby later admitted that he based his identification of the shooter partly on what others had told him and that he only saw approximately thirty percent of the shooter’s face.

¶ 8. Keisha Fielder was also at Huckle-by’s home on the day of the incident, and she saw the initial altercation between Broadnax and Miller. She witnessed the two men running in opposite directions down Barnett Street after Miller shot Broadnax, and claimed to have seen Craig shoot Miller shortly thereafter. However, Fielder failed to tell authorities that she had witnessed the shooting until well after the incident had taken place.

¶ 9. Additionally, Laterrenee Myers stated that he saw Craig the night of the incident. Myers claimed Craig had a gun and was wearing a hooded pullover and a white shirt. Finally, Jerome Lorraine, an FBI agent, testified that Craig admitted to having been present when Miller was shot and killed but denied being the shooter. Craig told Agent Lorraine that Miller had previously shot into Craig’s home and that Craig further disliked Miller because Miller was a sex offender.

¶ 10. Craig was soon arrested and charged with Miller’s murder. A trial took place in the circuit court. All of the witnesses were presented to the jury. The jurors were also informed of Miller’s deathbed statement that Broadnax had shot him. No physical evidence existed against Craig; however, the jurors were provided with multiple witnesses’ testimony on which to base their decision.

¶ 11. The first trial resulted in a hung jury. A second trial ended in a mistrial due to improper remarks made by Craig’s defense counsel during voir dire. Finally, at Craig’s third trial, the same witness testimony was presented to the jury. Craig’s defense was centered on the notion that if he had shot Miller, it was either in self-defense or in the defense of others. Craig failed to call any witnesses to the stand and, instead, had the circuit court read into the record the parties’ stipulation that the first responding officer witnessed Miller’s deathbed identification of Broad-nax as the person who had shot him. Craig’s defense attorney then rested. The jury returned a unanimous verdict of guilty, and Craig was sentenced to life in the custody of the MDOC.

¶ 12. Craig filed a motion for a JNOV asserting that the evidence was not sufficient to support the jury’s determination. Alternatively, Craig requested a new trial, claiming the weight of the evidence did not support the conviction. The motion was denied, and Craig timely appealed.

DISCUSSION

¶ 13. In reviewing the denial of a motion for a JNOV or a new trial, we analyze the circuit court’s decision under an abuse-of-discretion standard. Vaughn v. State, 972 So.2d 56, 59 (¶ 11) (Miss.Ct.App.2008) (citing Dilworth v. State, 909 So.2d 731, 736 (¶17) (Miss.2005)). The critical inquiry in reviewing the denial of a motion for a JNOV is whether the evidence showed, beyond a reasonable doubt, that the accused committed the crime. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). Nonetheless, an appellate court should not question “whether it ‘believes that the evidence at the trial established guilt beyond a reasonable doubt.’ Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 14. Here, Craig was charged with murder. Murder is defined by Mississippi Code Annotated section 97-3-19(l)(a) (Rev.2006) as “[t]he killing of a human being without the authority of law by any means or in any manner ... [w]hen done with deliberate design to effect the death of the person killed, or of any human being....” Accordingly, the question is whether any rational juror could have determined, beyond a reasonable doubt, that Craig shot Miller with the deliberate design to kill him.

¶ 15. While there was no physical evidence tying Craig to the murder, the prosecution provided the jury with multiple eyewitnesses’ testimony regarding the incident. In particular, the jury was presented with one eyewitness, Huckleby, who positively identified Craig as Miller’s shooter. Furthei’more, Myers testified that he saw Craig on the night of the incident with a gun while wearing the same clothing described by the other eyewitnesses. Finally, Agent Lorraine stated Craig admitted he was present at Miller’s house at the time Miller was murdered.

¶ 16. We have long held that on issues of witness credibility, “[t]he jury determines the weight and credibility of witness testimony.” Nelson v. State, 10 So.3d 898, 905 (¶ 29) (Miss.2009). As such, while some witnesses may have been more credible than others, that was for the jury to determine, and we find there was sufficient witness testimony for a rational juror to have found Craig guilty of Miller’s murder.

¶ 17. Craig next asserts that the circuit court erred in denying his motion for a new trial. A motion for a new trial tests the weight of the evidence. See Vaughn v. State, 926 So.2d 269, 271 (¶ 4) (Miss.Ct.App.2006) (citing Hawthorne v. State, 835 So.2d 14, 22 (¶ 32) (Miss.2003)). We have held that matters regarding the weight of the evidence are within the province of the jury. Stegall v. State, 765 So.2d 606, 610 (1110) (Miss.Ct.App.2000). “When reviewing a denial of a motion for a new trial, this Court ‘will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.’” Bush, 895 So.2d at 844 (¶ 18)).

¶ 18. Again, despite the lack of physical evidence against Craig, substantial witness testimony existed and was presented to the jury linking Craig to Miller’s murder. One eyewitness testified to having seen Craig shoot Miller, and another witness stated Craig admitted he was present when Miller was shot but denied that he was the shooter. The jurors considered the evidence presented to them and determined that Craig was guilty of murder. Matters regarding the weight of the evidence are to be settled by the jury, and we will only intervene if the weight of the evidence is overwhelmingly contrary to the verdict. Id. Based on the eyewitnesses’ testimony presented at trial, we cannot say that the evidence was so contrary to the verdict to warrant a new trial. This issue is also without merit.

¶ 19. THE JUDGMENT OF THE' JACKSON COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

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


text:
    In the Matter of the CONSERVATORSHIP OF Angela Ann LEWIS. Ann Lewis, Conservator, Appellant v. Brian Ray Smith, Appellee.
    No. 2011-CA-01406-COA.
    Court of Appeals of Mississippi.
    March 5, 2013.

      Garland D. Upton, attorney for appellant.
    Renee M. Porter, attorney for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. On November 9, 1999, Angela Ann Lewis and Brian Smith filed a joint complaint for divorce based on irreconcilable differences. Less than one month later, Lewis was in a car accident, resulting in a broken neck and category-four brain damage. These injuries left Lewis in a semi-coma. Consequently, she could no longer handle her affairs, and a judgment authorizing a conservator to proceed with the divorce action was entered.

¶ 2. On January 10, 2000, the trial court entered a final judgment of divorce, which mandated that Smith pay Lewis $5,500 within twelve months as a reimbursement for the amount she paid toward the purchase of a 1997 Jeep. Lewis later sought to have Smith held in contempt of court for failing to pay the monies owed to her under the January 10, 2000 judgment. And on January 9, 2001, the trial court entered a judgment ordering Smith to pay the $5,500 plus interest he owed Lewis.

¶ 3. Almost ten years later on January 5, 2011, Lewis sought a writ of garnishment of Smith’s wages for the $5,500 plus interest owed to her, and on that same day, the writ of garnishment was executed. Smith then moved for reimbursement of funds that had been garnished from his wages. Smith argued that the judgment placing 'him in contempt for failure to pay the $5,500 was over seven years old and, therefore, had expired under Mississippi Code Annotated section 15-1-47 (Rev. 2012).

¶4. On May 17, 2011, the trial court entered an order canceling the writ of garnishment because the January 9, 2001 order had expired. Subsequently, Lewis filed an answer to Smith’s motion for reimbursement, arguing that the judgment had not expired, because under the savings clause of Mississippi Code Annotated section 15-1-59 (Rev.2012), the statute of limitation had been tolled.

¶ 5. On August 10, 2011, the trial court entered an order revoking the previous order, finding that the seven-years statute of limitations had been tolled by section 15-1-59. Eight days later, Smith moved to set aside the August 10, 2011 order. Smith argued that no equitable reason existed to toll the statute of limitations, because the “conservator is fully authorized to employ attorneys and bring actions on [the ward’s] behalf.” U.S. Fid. & Guar. Co. v. Conservatorship of Melson, 809 So.2d 647, 654 (¶27) (Miss.2002).

¶ 6. On August 26, 2011, relying on the language in Melson, the trial court reinstated the order canceling the writ of garnishment because the January 9, 2001 order had expired. This appeal followed.

STANDARD OF REVIEW

¶ 7. “When reviewing questions of law, this Court employs a de novo standard of review and will only reverse for an erroneous interpretation or application of law.” Powers v. Tiehauer, 939 So.2d 749, 752 (¶ 6) (Miss.2005).

DISCUSSION

¶ 8. Lewis contends that the chancellor erred in finding that section 15-1-59 does not toll the statute of limitations in regard to the judgment’s expiration under section 15-1^47. Under section 15-1-47, a judgment lien expires after seven years from the entry of the judgment.

¶ 9. In her August 26, 2011 order, the chancellor found that section 15-1-59 was “inapplicable to the present matter as it concerns persons with disabilities and minor children; when a conservator was appointed to protect the legal rights of the mentally incapacitated Angela Ann Lewis, thus invoking the provisions of Mississippi] Code Ann[otated] [s]ection 15-1-58.” Mississippi Code Annotated section 15-1-58 (Rev.2012) states:

When the legal title to property or a right in action is in an executor, administrator, guardian, or other trustee, the time during which any statute of limitations runs against such trustee shall be computed against the person beneficially interested in such property or right in action, although such person may be under disability and within the saving of any statute of limitations; and may be availed of in any suit or actions by such person.

It is important to note that “the duties, responsibilities and powers of a guardian or conservator are the same.” Harvey v. Meador, 459 So.2d 288, 292 (Miss.1984). See also Miss.Code Ann. § 93-13-259 (Rev.2004). '

¶ 10. From the language of the order, the chancellor found that the right vested in the conservator and not in Lewis. Lewis contends that this contention is contrary to Weir v. Monahan, 67 Miss. 434, 7 So. 291 (1890). The Mississippi Supreme Court in Weir found that section 15-1-53 only applies “where the legal title to property or the right of action, at law or in equity[,] is in the guardian, and not the infants.” Weir, 67 Miss. at 455, 7 So. at 296. The court noted that “[w]hen the legal title to the property is vested in a trustee who can sue for it, and fails to do so within the time prescribed by law[,] ... his right of action is barred.Id.

¶ 11. Under Mississippi Code Annotated section 93-13-38(1) (Rev.2004), “All the provisions of the law on the subject of executors and administrators[ ] relating to settlement or disposition of property limitations ... shall, as far as applicable and not otherwise provided, be observed and enforced in all guardianships.” Also, Mississippi Code Annotated section 93-13-38(2) (Rev.2004) states: “The guardian is empowered to collect and sue for and recover all debts due his said ward.... ”

¶ 12. From the language of section 93-13-38, the conservator had a fiduciary duty to pursue the $5,500 owed to Lewis. Therefore, the right of action was in the conservator and not Lewis. The conservator was appointed prior to the entry of the judgment of the divorce. The conservator brought the motion to hold Smith in contempt for failure to pay. It was the conservator’s fiduciary duty to file a writ of garnishment when Smith failed to pay. Under the plain language of section 15-1-53, if the right is in the guardian, in this case the conservator, the statute of limitations runs against the guardian and not the ward.

¶ 13. The right in action is in the conservator, therefore making the savings clause of 15-1-59 inapplicable, because “[t]he purpose of the savings statute is to protect the legal rights of those who are unable to assert their own rights due to disability.” Rockwell v. Preferred Risk Mut. Ins. Co., 710 So.2d 388, 391 (¶ 11) (Miss.1998). Lewis has a court-appointed conservator who is able to assert rights on her behalf. Therefore, Lewis does not require, nor is subject to, the protections provided by the saving clause.

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

IRVING AND GRIFFIS, P JJ., BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, FAIR AND JAMES, JJ., NOT PARTICIPATING.


author: FAIR, J.,

text:
    Christopher Thomas LEWIS a/k/a Christopher Lewis, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00395-COA.
    Court of Appeals of Mississippi.
    March 5, 2013.

      George T. Holmes, Jackson, Benjamin Allen Súber, Glenn F. Rishel Jr., attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before GRIFFIS, P.J., BARNES, FAIR and JAMES, JJ.
   FAIR, J.,

for the Court:

¶ 1. Christopher Lewis was convicted of armed robbery by a jury before the Harrison County Circuit Court. He now appeals asserting that the evidence was insufficient to support his conviction, that jury instruction D-5 was erroneously refused, that his motion for a mistrial was improperly denied, and that he was prejudiced by the admission of hearsay testimony from one of the State’s witnesses. Finding that the evidence was sufficient to support Lewis’s conviction and that any error committed by the trial court was harmless, we affirm.

FACTS

¶ 2. Sopek Seng was the part owner and operator of M & S Convenience Store in Gulfport. One afternoon, between 4:00 p.m. and 5:00 p.m., Lewis entered the store with a handgun while Seng was stocking the drink cooler. Lewis pushed her over to the cash register while demanding money. After Seng emptied the first register, Lewis threatened to shoot her baby, who was sleeping in a car seat behind the counter. Seng emptied the second register. Lewis was wearing a large dark jacket, a face mask, a ball cap, white gloves, dark pants, and white tennis shoes. After Seng emptied the second register, he fled from the store.

¶ 3. When police arrived, Seng explained that she knew the man who robbed her; she recognized “Chris” by his voice and lazy eye. Lewis was a regular customer at a different convenience store, First Stop, where Seng worked during the day. Officer Adam Gibbons believed Seng was describing Lewis, with whom he was familiar. An hour later, Officer Gibbons found Lewis half a mile away walking down the street carrying a beer. He arrested Lewis for public drunkenness. Lewis was carrying sixty-three dollars, comprised of twenty-eight one-dollar bills, three five-dollar bills, and one twenty-dollar bill.

¶ 4. At trial, Lewis did not testify but put on several alibi witnesses. The jury convicted Lewis of armed robbery, and he was sentenced to serve nineteen years and eleven months in the custody of the Mississippi Department of Corrections. The circuit court denied Lewis’s motion for a judgment notwithstanding the verdict (JNOV).

DISCUSSION

1. Sufficiency of the Evidence

¶ 5. A motion for a JNOV challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). If the evidence “point[s] in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty the proper remedy for the appellate court is to reverse and render.” Bush v. State, 895 So.2d 836, 843 (Miss.2005) (citation omitted). However, if “reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense, the evidence will be deemed to have been sufficient.” Id. This Court will consider the evidence in the light most consistent with the verdict and give the State the benefit of all inferences favorable to the verdict. McClain v. State, 625 So.2d 774, 778 (Miss.1993) (citations omitted).

¶ 6. Lewis was convicted of armed robbery under section 97-3-79 of the Mississippi Code Annotated (Rev.2006). Robbery by use of a deadly weapon is established if the defendant took the personal property of another from his presence and against his will by violence or by putting him in fear of immediate injury by exhibiting a deadly weapon. Williams v. State, 317 So.2d 425, 427 (Miss.1975). Lewis asserts that the victim’s testimony alone was not enough to find guilt of these elements beyond a reasonable doubt. Lewis challenges the victim’s ability to identify a man wearing a mask and argues that no physical evidence was ever found and that he presented several alibi witnesses.

¶ 7. Contrary to Lewis’s argument, the Mississippi Supreme Court has held that “[identification based on the testimony of a single witness ... can support a conviction, even though denied by the accused.” Passons v. State, 239 Miss. 629, 634, 124 So.2d 847, 848 (1960). “[T]he jury is the judge of the weight and credibility of testimony and is free to accept or reject all or some of the testimony given by each witness.” Meshell v. State, 506 So.2d 989, 992 (Miss.1987). Specifically, questions about the credibility of a victim’s identification are to be resolved by the jury. Brown v. State, 724 So.2d 480, 481 (¶ 8) (Miss.Ct.App.1998). Further, the absence of physical evidence does not negate a conviction where there is testimonial evidence. See Williams v. State, 512 So.2d 666, 670 (Miss.1987).

¶ 8. The State played video-surveillance footage that clearly showed a man using a handgun to rob the convenience store. Seng detailed the robbery for the jury and explained that she was able to recognize Lewis because she knew him well. He came into First Stop several times a day and sometimes did odd jobs at the convenience store for her. The mask he wore had large eye holes, so she could see that his skin was light and that he had a lazy eye. She also recognized Lewis’s voice and distinctive speech pattern. Seng stated several times that she was one hundred percent sure that Lewis had robbed her store.

¶ 9. In contrast, Lewis’s cousin and uncle testified to his whereabouts that day. His cousin stated that Lewis had been home with him until about 4:30 p.m. that day. Lewis’s uncle testified that he and Lewis went to get a beer that afternoon shortly before 6:00 p.m. He stated that Lewis acted normal and was not winded or nervous. The jury was entitled to judge the credibility of these witnesses and clearly accepted Seng’s testimony while rejecting that of the defense witnesses. Accepting the State’s evidence as true and viewing that evidence in the light most favorable to the State, we conclude that the evidence was sufficient for a reasonable fair-minded juror to find the essential elements of the crime beyond a reasonable doubt. See Stewart v. State, 986 So.2d 304, 308 (¶ 13) (Miss.2008).

2. Two-Theory Instruction

¶ 10. In reviewing the grant or denial of jury instructions, this Court considers the instructions given as a whole. Morgan v. State, 995 So.2d 812, 816 (¶ 12) (Miss.Ct.App.2008). A trial court may refuse instructions that incorrectly state the law, are covered fairly elsewhere in the instructions, or are without foundation in the evidence. Id. If the given instructions fairly announce the law and create no injustice, there is no reversible error. Id.

¶ 11. Lewis contends that instruction D-5 should have been given because its content was not fairly covered in other instructions, and it correctly states the defendant’s rights. Instruction D-5 reads as follows:

The Court instructs the jury that if there is a fact or circumstance in this case susceptible to two interpretations, one favorable and the other unfavorable to the Defendant, and when the jury has considered said fact or circumstance with all other evidence, and there is a reasonable doubt as to the correct interpretation, then you, the jury, must resolve such doubt in favor of the Defendant, Chris[ jtopher Thomas Lewis, and place upon such fact or circumstance the interpretation most favorable to the Defendant, Christopher Thomas Lewis.

¶ 12. This is “a two-theory instruction, which is a specific type of circumstantial-evidence instruction.” McInnis v. State, 61 So.3d 872, 875 (¶ 11) (Miss.2011). “Circumstantial evidence is evidence which, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact does exist.” Id. A two-theory instruction directs the jury on what to do when “the record supports two or more hypotheses of the crime committed and all the evidence of the crime is circumstantial.” Id. The considerations for giving a circumstantial-evidence instruction or a two-theory instruction are the same. Id. at 876 (¶ 12). If any direct evidence is presented, the trial court may properly refuse a circumstantial-evidence instruction. Id. at (¶ 13). Stated differently, “[a] circumstantial evidence case (for the purposes of granting a “two-theory” instruction) is one in which there is neither an eyewitness nor a confession to the crime.” State v. Rogers, 847 So.2d 858, 863 (¶ 22) (Miss.2003) (citation omitted). Because there was direct evidence presented, this was not a circumstantial-evidence ease, and instruction D-5 was properly refused.

3. Prejudicial Statements in Voir Dire

¶ 13. Lewis argues that damaging statements made by a prospective juror tainted the venire and that the trial judge erred by refusing to grant a mistrial.

¶ 14. The decision to grant a mistrial rests within the sound discretion of the trial court. Evans v. State, 725 So.2d 613, 649 (¶ 114) (Miss.1998) (citations omitted). Rule 3.12 of the Uniform Rules of Circuit and County Court provides that on any party’s motion, a trial court may declare a mistrial for misconduct “resulting in substantial and irreparable prejudice to the movant’s case.” We will only reverse the trial court’s decision for an abuse of discretion. Evans, 725 So.2d at 649 (¶ 114).

¶ 15. During the voir dire, panel members were asked if anyone knew anything about this case. A Mr. Ramey responded that he had spoken with the people at the store about the robbery. In response to the trial court’s question, Ra-mey said that he would not be able to set aside what he knew and would have to rely upon it. Subsequently, he was excused for cause. Ramey revealed no details or facts and expressed no opinion about the defendant’s guilt or innocence. After reading the record, we agree with the trial judge that nothing was said that would unreasonably taint or prejudice the jury. “The trial judge is permitted considerable discretion in determining whether a mistrial is warranted since [he] is best positioned for measuring the prejudicial effect.” Garrett v. State, 956 So.2d 229, 233 (¶ 13) (Miss.Ct.App.2006) (citation omitted). We find no abuse of discretion.

4. Hearsay

¶ 16. Finally, Lewis argues the trial court erred by admitting hearsay to bolster the victim’s testimony, which prejudiced him by diluting his cross-examination of the victim. We review the admission or exclusion of evidence for abuse of discretion and will not reverse unless an error adversely affects the substantial rights of a party. DeHenre v. State, 43 So.3d 407, 414 (¶ 21) (Miss.2010) (citations omitted).

¶ 17. Officer Bradley Barta testified that he was the second officer to arrive at Seng’s store and questioned her about the perpetrator’s appearance after Officer Gibbons had already done so. In response to the State’s question, Officer Barta relayed Seng’s description of the perpetrator. Lewis’s objection was overruled based on the present-sense-impression exception to the hearsay rule.

¶ 18. .Mississippi Rule of Evidence 803(1) defines a present sense impression as “[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.” It is excepted from the hearsay bar because the timing of the statement makes it unlikely that the declarant made a deliberate misrepresentation. Clark v. State, 693 So.2d 927, 932 (Miss.1997). Seng was not describing the event as it occurred or immediately thereafter because Officer Barta was the second officer to question her. Though the trial court erred in relying on the present-sense-impression exception, it was a harmless error. Seng testified before Officer Barta and described the man who had robbed her store, so the jury had already heard this evidence. The jury also viewed surveillance footage allowing them to see what the perpetrator was wearing. The impact of the statement was so insignificant that it could not have contributed to the guilty verdict in any meaningful way. Bynum v. State, 929 So.2d 312, 814 (¶ 6) (Miss.2006).

¶ 19. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF ARMED ROBBERY AND SENTENCE AS A HABITUAL OFFENDER OF NINETEEN YEARS AND ELEVEN MONTHS 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 HARRISON COUNTY.

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