author: LAMAR, Justice, KITCHENS, Justice,

text:
    TUNICA COUNTY, Mississippi v. Christina Bell GRAY, Milton Bell, Charles C. Bell And Garmillia Ann Bell, Individually and as The Wrongful Death Heirs of Clarence Leon Bell, Deceased, and The Estate of Clarence Leon Bell, by and Through its Administratrix, and Renee Dowd.
    No. 2008-CA-00952-SCT.
    Supreme Court of Mississippi.
    July 23, 2009.

      Daniel J. Griffith, Cleveland, attorney for appellant.
    Edward P. Connell, Jr., Clarksdale, attorney for appellees.
   LAMAR, Justice,

for the Court.

¶ 1. In this case we are called upon to determine whether Mississippi Code Section 41-39-5 imposes an actionable duty on county boards of supervisors with regard to disposition of unclaimed bodies. The trial court found that the statute creates an actionable duty, and that the Tunica County Board of Supervisors violated that duty by authorizing the cremation of an unclaimed body before the expiration of the statutory waiting period. The trial court awarded damages to the family of the deceased. Finding error, we reverse and render.

FACTS

¶2. On April 12, 2001, Clarence Leon Bell was arrested by Tunica County Sheriffs Department deputies for disturbing the peace at Gold Strike Casino in Tunica. Bell was transported to the Tunica County jail where he was ultimately placed as the sole occupant in a padded cell. Several hours later, Bell was found dead in the cell, with a portion of his orange jumpsuit wrapped around his neck. Another portion of the jumpsuit rested in Bell’s hand, suggesting suicide by strangulation.

¶ 3. Tunica County Interim Coroner Jesse Powell was called to the scene. After EMTs were not able to revive Bell, the cell was locked, and the Mississippi Highway Patrol was called to investigate the death. That day, Bell’s body was sent to Pearl for an autopsy, where Dr. Steven Hayne concluded that the death was caused by suicide due to ligature hanging.

¶ 4. On the date of death, Powell began efforts to locate the family of the deceased. He derived Bell’s social security number and date of birth from the jail’s booking card, which also listed Bell’s address as 667 North Ridge Road, Castle Rock, Colorado. No phone number was listed on the booking card. Powell contacted the Douglas County (Colorado) Sheriffs Department and, aided by the local victim assistance coordinator, spoke with a woman at the address, Ms. Dillman. Dillman made no mention of Bell’s family and stated that, although Bell had once lived at the address, she had neither seen nor heard from him for more than ten years.

¶ 5. Aso on the date of death, Powell checked both the FBI’s National Crime Information Center database and the Automated Fingerprint Identification System fingerprint database, neither of which produced any leads. Powell contacted Gold Strike Casino, but was able to obtain only an old address and no details regarding next of kin or other contact information.

¶ 6. Powell next spoke with a Tunica County deputy, who had had prior experience with Bell. The deputy stated that, in an earlier conversation, Bell had mentioned having family around Holly Springs, but Bell did not know whether they still lived there. Powell then contacted the coroners of the surrounding counties to determine if they might be aware of any family of the deceased. The coroner in Holly Springs told Powell that “a lot of Bells live over here,” and that he would attempt to locate any family members still in the area.

¶ 7. Bell’s body was returned from the autopsy in Pearl on Friday, April 13, the day after death. Because Tunica County has no morgue, the body was held at a local funeral home.

¶8. By letter dated Monday, April 16, 2001, Powell formally notified the Tunica County Board of Supervisors (hereinafter “the Board”) that he had “come into possession of the body of Clarence Leon Bell” and that, albeit without success, he had “tried diligently to contact the family.” Powell’s letter also stated that the “body has not been claimed for a period of more than forty-eight hours of its acquisition by me.” Powell testified that he informed the Board that he had information that there might be family of the deceased in Marshall County, and that, although efforts were being made to locate them, no family yet had been found.

¶ 9. By letter dated Friday, April 20, 2001, the Board authorized Powell to cremate the body, noting that reasonable efforts had been made to notify the decedent’s family members and other interested parties, and the body remained unclaimed. The letter further stated, “It has been five days since the notice we received from [Powell].” Upon receipt of the letter, Powell issued a Medical Examiner Cremation Certificate to Larry Hickerson, funeral director of Memorial Funeral Home. The cremation occurred on the same day.

¶ 10. The day after the cremation, Saturday, April 21, 2001, the coroner in Holly Springs called Powell and stated that “the family will be calling you in just a few minutes.” However, Powell was not contacted by any of the deceased’s family until May 4, 2001, twenty-two days after Bell’s death.

¶ 11. On May 4, 2001, Christina Bell Gray was notified for the first time that her brother, Clarence Leon Bell, had passed away. Gray immediately called her brother, Milton Bell, and the two, along with Gray’s boyfriend Roy Tubbs, drove to Tunica and met with Powell that day.

PROCEDURAL HISTORY

¶ 12. Gray, Milton Bell, Charles Bell, and Garmilla Ann Bell (hereinafter “Plaintiffs”), the siblings of the decedent, filed the instant action against Tunica County on June 17, 2004, asserting that the county was negligent in handling the remains of Clarence Leon Bell. The Plaintiffs claimed that they had suffered damages “for inconveniences associated with claiming the remains, denial of the opportunity to view the body, and denial of the opportunity to choose the manner of disposing of the remains and for destruction by cremation of the remains.”

¶ 13. Following a bench trial before the Circuit Court of Tunica County, the court entered judgment in favor of the Plaintiffs and awarded compensatory damages in the amount of $5,000 for each plaintiff, for a total judgment of $20,000. The court found that the Board had violated the mandatory provisions of Mississippi Code Section 41-39-5, which prescribes a waiting period before cremation of unclaimed dead bodies. Miss.Code Ann. § 41-39-5 (Rev.2005). The court further found that, as a result of the Board’s failure to comply with statutory requirements, the Plaintiffs had suffered injuries.

ANALYSIS

¶ 14. As the basis for establishing liability on the part of the county, the Plaintiffs allege a violation of Mississippi Code Section 41-39-5, a statute which provides a procedure for the disposition of unclaimed dead bodies. Miss.Code Ann. § 41-39-5 (Rev.2005). Tunica County argues that the statute was created for the purpose of governing public health and does not impose an actionable duty on county boards of supervisors. Tunica County further asserts that the Plaintiffs’ claims are barred by judicial, administrative, or discretionary immunity. Finally, Tunica County argues that the Plaintiffs cannot recover damages under this set of facts and cannot show causation.

¶ 15. Enacted by the Mississippi Legislature in 1964, Mississippi Code Section 41-39-5 provides:

Any ... coroner, or other person acquiring possession of a dead human body or portion thereof which is not claimed for burial or cremation within forty-eight horn’s of its acquisition shall give written notice thereof to the board of supervisors, or a member thereof, of the county in which the dead body or portion thereof is located, furnishing such identification of the decedent as may be available, and the board of supervisors shall make reasonable efforts to notify members of the decedent’s family or other known interested persons, and, if the dead body or portion thereof shall not be claimed for burial or cremation by any interested person within five days of the aforementioned written notice, the board of supervisors shall, as soon as it may think appropriate, authorize and direct the burial or cremation and burial of the residue of such dead body or portion thereof....

Miss.Code Ann. § 41-39-5 (Rev.2005).

¶ 16. Without determining whether or not the county violated this statute, we note that a mere violation of a statute or regulation will not support a claim where no private cause of action exists. “[T]he general rule for the existence of a private right of action under a statute is that the party claiming the right of action must establish a legislative intent, express or implied, to impose liability for violations of that statute.” Doe v. State ex rel. Miss. Dep’t of Corrections, 859 So.2d 350, 355 (Miss.2003). This Court has declined to find a “private right of action for violations of various statutes and regulations” in the absence of legislative intent. Id. See also Moore ex rel. Moore v. Mem’l Hosp. of Gulfport, 825 So.2d 658 (Miss.2002); Allyn v. Workman, 725 So.2d 94 (Miss.1998).

¶ 17. In Doe, this Court considered whether the Uniform Act for Oul^of-State Parolee Supervision created a private cause of action for a woman who was raped by a parolee. Miss.Code Ann. § 47-7-71 (Rev.2004). In reaching the conclusion that no private cause of action existed, this Court adopted the analysis of a Wisconsin district court:

To determine whether a statute creates a private right of action in favor of a particular plaintiff, a court must analyze the statute itself and any relevant legislative history. The focal point is the legislative body’s intent in enacting the statute. Unless the legislative intent can be inferred from the language of the statute, the statutory structure, or some other source, the essential predicate for implication of a private remedy simply does not exist.
In this case, nothing points in favor of implying a private right of action for Hodgson. The Uniform Act [for Out-of-State Parolee Supervision] itself contains no statement of purpose or mention of the rights of the general public or potential victims of parolees or probationers who might relocate under the Act’s provisions. At the same time, the Plaintiff has failed to point to any record of legislative history which shows that the lawmakers intended to benefit persons such as Hodgson or his daughter.

Doe, 859 So.2d at 355 (quoting Hodgson v. Miss. Dep’t of Corrections, 963 F.Supp. 776, 791 (E.D.Wis.1997)).

¶ 18. In determining whether Mississippi Code Section 41-39-5 imposes an actionable duty on the Board of Supervisors, we first look to the language of the statute and any relevant legislative history. In order to ascertain the legislative intent, this Court “may look not only to the language used but also to [the statute’s] historical background, its subject matter, and the purposes and objects to be accomplished.” Davis v. AG, 935 So.2d 856, 868 (Miss.2006) (quoting Bailey v. Al-Mefty, 807 So.2d 1203, 1206 (Miss.2001)). This Court considers “the purpose and policy which the legislature had in view of enacting the law ... [and] will then give effect to the intent of the legislature.” State ex rel. Hood v. Madison County ex rel. Madison County Bd. of Supervisors, 873 So.2d 85, 88 (Miss.2004) (citing Aikerson v. State, 274 So.2d 124, 127 (Miss.1973)).

¶ 19. This statute was enacted May 4, 1964, as Section 3 of House Bill No. 139, and has not been amended since its enactment. Miss. Laws, ch. 436 § 3 (1964). House Bill No. 139 was intended by the Legislature “to provide for the disposition of tissue of the human body and unclaimed dead bodies; and for related purposes.” Id. Indeed, Section 1 of House Bill No. 139 governs the procedure by which a physician must dispose of human body tissue that he has removed or otherwise acquired. Id. Section 2 of the bill states that the State Board of Health may provide rules for the disposition of any dead fetus acquired by a midwife or person acting as a midwife. Id. Originally codified as Sections 7068-01, 7068-02, and 7068-03 of the Mississippi Code of 1942, these statutes are still found together in today’s Mississippi Code as Sections 41-39-1, 41-39-3, and 41-39-5.

¶ 20. Noticeably, these statutes enacted by House Bill No. 139 now are codified under Title 41, which governs “Public Health.” Chapter 39 of this title, governing “Disposition of Human Bodies or Parts,” also contains statutes which provide for bodies of deceased hospital patients to be turned over to educational institutions, contracts for donation of parts of human bodies, tags on bodies of persons with infectious or communicable diseases, and regulations governing organ and tissue donors and donations. See Miss.Code Ann. §§ 41-39-7, 41-39-9, 41-39-13, and 41-39-15 (Rev.2005). Further, the responsibility of boards of supervisors to bury unidentified or unclaimed bodies dates back to the Mississippi Code of 1906, which required that “the board [of supervisors] shall decently bury all strangers dying in the county.” Miss.Code § 3568 (1906).

¶ 21. The Plaintiffs argue that Mississippi Code Section 41-39-5 was intended to create a private right of action in order to provide an opportunity for family members to claim the body of a loved one. However, “[u]nless the legislative intent can be inferred from the language of the statute, the statutory structure, or some other source, the essential predicate for implication of a private remedy simply does not exist.” Doe, 859 So.2d at 355 (quoting Hodgson, 963 F.Supp. at 791). The Plaintiffs point to no legislative intent, express or implied, that would support a finding of an actionable duty. Based on our review of the statute and the relevant legislative history, we cannot conclude that the Legislature intended to confer a private cause of action upon persons such as these Plaintiffs. In the absence of a finding of either express or implied intent to confer such a cause of action, we will not impose liability.

CONCLUSION

¶ 22. This Court finds that Mississippi Code Section 41-39-5 does not create a private cause of action. Finding this issue to be dispositive, we do not address the remaining assignments of error presented by Tunica County. Based on the foregoing reasoning, we reverse and render the judgment of the circuit court.

¶ 23. REVERSED AND RENDERED.

WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, AND PIERCE, JJ„ CONCUR. GRAVES, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER, J.

KITCHENS, Justice,

Dissenting.

¶ 24. As a determination upon a question of first impression, one cannot rightly describe today’s judgment as a misapplication of on-point precedent, and I do not. Nevertheless, because the Court today misinterprets the manner in which we evaluate implied rights of action, I am compelled to dissent.

¶ 25. Section 41-39-5 of the Mississippi Code governs boards of supervisors’ disposals of human corpses, or portions thereof. Since its first appearance in the Mississippi Code in 1942, this Court has never cited this statute, which reads, in pertinent part:

Any ... coroner ... acquiring possession of a dead human body or portion thereof which is not claimed for burial or cremation within forty-eight hours of its acquisition shall give written notice thereof to the board of supervisors, or a member thereof, of the county in which the dead body ... is located, furnishing such information of the decedent as may be available. The board of supervisors shall make reasonable efforts to notify members of the decedent’s family or other known interested persons, and, if the dead body ... shall not be claimed for burial or cremation by any interested person within five days of the aforementioned written notice, the board of supervisors shall, as soon as it may think appropriate, authorize and direct the burial or cremation and burial of the residue of such dead body....

Miss.Code Ann. § 41-39-5 (Rev.2005).

¶ 26. Athough we have never had occasion to refer to this provision, the Mississippi Attorney General’s Office has cited the statute six times in opinions issued to public officials. “While an attorney general’s opinion is not binding on this Court, it is persuasive.... ” DuPree v. Carroll, 967 So.2d 27, 31 (Miss.2007). None of these opinions is entirely on point, in that none addresses whether Section 41-39-5 implies a right of action. However, several of them do address the inflexibility of the duty placed upon supervisors. One opinion describes Section 41-39-5 as “giv[ing] the board of supervisors the right and responsibility to bury unclaimed bodies.... ” Chamberlin, 2003-0214 Op. Att’y Gen. (May 9, 2003) (emphasis added).

¶ 27. The most recent opinion rejected the notion that a family member can waive

the five-day waiting period, despite concerns for cost of storage. “Our office is mindful of the expense to the county which compliance with this statute often requires .... However, absent an appropriate amendment to Section 41-39-5, we find no authority to waive the statutory five day waiting period.” McWilliams, 2008-0254 Op. Att’y Gen. (May 30, 2008).

¶ 28. More relevant to the case at hand is a 1996 opinion finding that the supervisors’ duty may actually extend beyond five days, if the survivors are unprepared to take custody of the deceased. “[I]f the county coroner has no available means of preserving a dead body until family members can make arrangements for a burial or cremation, the county board of supervisors has the duty to make arrangements for the preservation of such a body until family members may make such arrangements.” Hemphill, 96-0586 Op. Att’y Gen. (Aug. 30,1996).

¶ 29. These interpretations, along with the statute’s repeated use of nondiscretion-ary terms such as “[t]he board of supervisors shall make reasonable efforts to notify members of the decedent’s family” and that cremation may take place only when “the body ... shall not be claimed” leave little room for argument against the conclusion that a mandatory duty is imposed.

¶ 30. This conclusion alone, however, does not resolve fully the question before us. “The general rule for the existence of a private right of action under a statute is that the party claiming such right must establish a legislative intent, express or implied, to impose liability for violations of that statute.” Doe v. State ex. rel. Miss. Dep’t of Corrs., 859 So.2d 350, 355 (Miss.2003). The violation of a legally-imposed duty does not necessarily amount to a cause of action. Id. (citing Moore ex. rel. Moore v. Mem’l Hosp. of Gulfport, 825 So.2d 658, 665-66 (Miss.2002)). For example, in Doe, this Court favorably cited Hodgson v. Mississippi Department of Corrections, 963 F.Supp. 776 (E.D.Wis.1997), in which a Wisconsin federal court found no private right of action against the State for violation of a Mississippi statute that governed the transfer of Mississippi parolees, even when the statute’s violation led to the victim’s rape:

The [statute] itself contains no statement of purpose or mention of the rights of the general public or potential victims of parolees or probationers who might relocate under the Act’s provisions. At the same time, the Plaintiff has failed to point to any record of legislative history which shows that the lawmakers intended to benefit persons such as [the plaintiff].

Doe, 859 So.2d at 356 (citing Hodgson, 963 F.Supp. at 791). In 2007, the Mississippi Court of Appeals astutely described the rule of Doe as one that looks to the nature of the relationship between plaintiff and defendant. “In Doe, the State owed no duty to protect the specific victim. The relationship between the State and the victim arose solely out of the assault by an attacker with whom the State had a relationship.” Miss. Dep’t of Human Servs. v. S.W., 974 So.2d 253, 263 (Miss.Ct.App.2007).

¶ 31. Mississippi’s line of case law on this subject is limited, but other states have explored the area more thoroughly and have settled upon the same rule. Notably, the Supreme Court of South Carolina recently held, similar to Doe (in a case of the same name), that “the general rule is that a statute which does not purport to establish a civil liability, but merely makes provision to secure the safety or welfare of the public as an entity is not subject to a construction establishing a civil liability.” Doe v. Marion, 373 S.C. 390, 396, 645 S.E.2d 245 (2007) (quoting Dorman v. Aiken Commc’ns, Inc., 303 S.C. 63, 67, 398 S.E.2d 687, 689 (1990)). In other words, “[w]hen a statute does not specifically create a private right of action, one can be implied only if the legislation was enacted for the special benefit of a private party.” Doe v. Marion, 373 S.C. at 397, 645 S.E.2d 245 (citing Citizens of Lee County v. Lee County, 308 S.C. 23, 416 S.E.2d 641 (1992)). This view comports with the two Mississippi cases relied upon without dissent by the Doe Court, in which we found no private rights of action for violations of the State Board of Pharmacy’s internal regulations and a statute that prohibits fraud in connection with securities sales. Doe, 859 So.2d at 355 (citing Moore ex. rel. Moore v. Mem’l Hosp. of Gulfport, 825 So.2d 658 (Miss.2002), and Allyn v. Workman, 725 So.2d 94, 102 (Miss.1998)).

¶ 32. Mississippi Code Section 41-39-5 is not silent respecting a relationship between the State and private parties. The statute’s requirement that supervisors wait at least five days before disposing of a body does not merely seek “to secure the safety or welfare of the public as an entity,” Doe v. Marion, 373 S.C. at 396, 645 S.E.2d 245, but instead clearly “was enacted for the special benefit of a private party.” Id. at 397, 645 S.E.2d 245. Indeed, if the Legislature had enacted Section 41-39-5 with no other concern but the safety of the public in general, then presumably it would have allowed, and perhaps even commanded, supervisors to dispose of bodies as quickly as possible. Instead, the Legislature vested survivors with a five-day period of time in which they are guaranteed by state law that the keepers of their deceased loved ones’ remains will make reasonably diligent efforts to locate and contact the decedents’ survivors. Unlike in S.W., in which the Mississippi Court of Appeals held no private right of action existed because “[t]he relationship between the State and the victim arose solely out of the assault by an attacker,” S.W., 974 So.2d at 263, Section 41-39-5 creates a relationship between county and survivors that arises immediately upon a county’s reception of a human corpse. This relationship occurs because of the “mention of the rights of ... potential victims” that the Doe Court found absent in the parolee-relocation statute. Doe, 859 So.2d at 356. Indeed, the determination that this relationship and the implied cause of action stemming therefrom do not exist, coupled with the fact that this statute affixes no criminal penalty for violations thereof, effectively disembowels the statute and leaves counties no meaningful incentive to comply with the law’s requirements.

¶ 33. Comporting with neither sound policy judgment nor our deeper attention to implied causes of action, today’s decision is one from which I respectfully dissent.

CHANDLER, J., JOINS THIS OPINION.

      . Tunica County could have opted to have the body returned to Jackson for storage in the morgue there, which would have cost the county $125 per day, plus transportation costs.

      . Gray was notified via telephone by her cousin, Betty Sue Scott.

      . The Plaintiffs’ 42 U.S.C. § 1983 claims were dismissed by the federal district court for the Northern District of Mississippi, whose judgment was affirmed by the Fifth Circuit on June 3, 2004. Gray v. Tunica County, Miss., 100 Fed.Appx. 281 (5th Cir.2004).

      .Jerry Ellington originally was a defendant in the action, both individually and in his official capacity as sheriff of Tunica County. By order of the court dated November 14, 2005, Ellington was dismissed.


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Dewaun O’Sha GRIFFIN, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-KA-01768-COA.
    Court of Appeals of Mississippi.
    June 30, 2009.

      Edmund J. Phillips, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Dewaun O’Sha Griffin was convicted in the Leake County Circuit Court for the murder of Daphne Nicole Harper (“Daphne”). He was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. On appeal, Griffin asserts that: (1) the circuit court erred in denying his motion for a directed verdict; (2) the verdict is against the overwhelming weight of the evidence; and (3) the jury was improperly instructed to consider the lesser crime of manslaughter only after it considered the actual charge of murder. We find no error and affirm.

FACTS

¶ 2. Since 2001, Daphne and Griffin resided at 308 Smith Lane, Carthage, Leake County, Mississippi. They had an exclusive relationship for many years, and they had one son together. On March 28, 2007, at 7:30 p.m., Daphne, along with her sister, Kenyada Harper (“Kenyada”), went to the residence to collect her belongings. While loading items into the truck, Kenyada heard two shots fired from inside the trailer.

¶ 3. Willie Huffman (“Willie”), who is Griffin’s uncle and was an occupant at 308 Smith Lane, was also outside when he heard the first shot. He immediately ran inside to get his fourteen-year-old son and his sister, Linda Huffman (“Linda”), out of the living room. While in the home, Willie observed Griffin in the doorway of a bedroom located down the hall, with his arm extended up and outward in front of his body. Willie heard one shot, saw Griffin “rack” the pistol, and then heard the second shot.

¶ 4. Linda, Griffin’s aunt, who also resided at 308 Smith Lane, saw Griffin crying while Daphne gathered her belongings. Linda testified that she heard doors slamming just before she heard the two shots. Linda never saw Griffin with a pistol in his hand.

¶ 5. Prior to the shooting, Angela Smith, Griffin’s mother and owner of the trailer located at 308 Smith Lane, warned Daphne not to return to the trailer because of the frequent arguments between the couple. Smith was outside during the incident, and she never heard the shots or any arguing.

¶ 6. Later that evening, Griffin was arrested and interrogated at the Leake County Jail. Griffin voluntarily gave a verbal statement and responded to questions without a demand for counsel or cessation of further questioning. The three interrogating officers each testified that Griffin stated that he saw the gun while Daphne was packing, took the gun, and starting shooting Daphne. Griffin refused to commit his statement to writing without the presence and advice of counsel.

ANALYSIS

1. Whether there is sufficient evidence to support Griffin’s conviction for murder.

¶ 7. Griffin argues that his motion for a directed verdict should have been granted by the circuit court. Specifically, he asserts that he did not exhibit the deliberation required for deliberate-design murder; therefore, he could only be found guilty of manslaughter. The State responds that the testimony of the eyewitnesses, along with Griffin’s own statement that he picked up the gun and started shooting Daphne, constitute sufficient evidence to convince a reasonable juror that Griffin was guilty of murder.

¶ 8. When reviewing the denial of motion for a directed verdict on an objection to the legal sufficiency of the evidence, we examine the evidence in a light most favorable to the State to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (citation omitted).

¶ 9. Mississippi Code Annotated section 97—3—19(1)(a) (Rev.2006) defines murder as “[t]he killing of a human being without 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.” “Deliberate design” is synonymous with malice aforethought. Hearvey v. State, 887 So.2d 836, 839(¶ 5) (Miss.Ct.App.2004). Manslaughter is defined by Mississippi Code Annotated section 97-3-35 (Rev. 2006) as “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense[.]”

¶ 10. Griffin bases his argument on the Weathersby rule, which states: “where the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the [SJtate, or by the physical facts or by the facts of common knowledge.” Weathersby v. State, 165 Miss. 207, 209, 147 So. 481, 482 (1933). Griffin claims that he shot Daphne in the heat of passion and without deliberate design. Heat of passion is defined as:

A state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.

Phillips v. State, 794 So.2d 1034, 1037(¶ 9) (Miss.2001) (citation omitted).

¶ 11. Griffin provides no evidence, or other argument, to show that this was a heat-of-passion killing. In fact, his argument does not fit the Weathersby rule because his claim is contradicted by the witnesses who testified at trial.

¶ 12. The interrogating officers all testified that, when Griffin was asked why he shot Daphne, Griffin stated that he just picked up the gun and started shooting. He made no statement about a struggle or argument that would indicate that the shooting occurred in the heat of passion.

¶ 13. Griffin’s own statement is coupled with the witnesses’ corroboration that Griffin was seen with his arm extended, pointing into the room where Daphne was packing, when two shots were fired. Forensic pathologist Dr. Steven Hayne, who performed the autopsy of Daphne, identified two gunshot wounds: one to the nose with “tatooing,” indicating close proximity of the weapon to the body, and one under the chin with “flame injury,” showing that the weapon made contact with Daphne’s skin. Dr. Hayne concluded that either wound would have immediately incapacitated Daphne, and either shot would have been fatal.

¶ 14. The only testimony that could arguably support Griffin’s claim is Linda’s statement that Griffin was visibly upset, wiping tears from his eyes. This testimony alone is not enough to prove that the killing occurred in the heat of passion. Griffin’s statement to the interrogating officers, the eyewitnesses’ testimonies, and the autopsy results are sufficient to materially contradict Griffin’s version of the killing. Viewing all of the evidence in a light most favorable to the State’s case, we find that a rational jury could find, beyond a reasonable doubt, that Griffin possessed the deliberate design required for the crime of murder. Accordingly, this issue has no merit.

2. Whether the jury’s verdict is against the overwhelming weight of the evidence.

¶ 15. Although he provides no further argument than what was discussed in issue one, Griffin claims that the jury’s verdict is against the overwhelming weight of the evidence.

¶ 16. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we 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(1118). The evidence is weighed in the light most favorable to the verdict. Id. The power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. Id. If the verdict is against the overwhelming weight of the evidence, the proper remedy is to grant a new trial. Id.

¶ 17. Griffin makes no argument as to how the verdict is against the overwhelming weight of the evidence. His only contention on appeal is that his version of the killing should be accepted so as to support a manslaughter conviction instead of murder. This argument goes to the sufficiency of the evidence, and as we held above, we find that there is sufficient evidence to support the jury’s conviction for murder.

¶ 18. We find that the verdict is not against the overwhelming weight of the evidence and allowing the verdict to stand will not result in an unconscionable injustice. Thus, this issue has no merit.

S. Whether the circuit court erred in granting jury instruction S-j.

¶ 19. Finally, Griffin claims the circuit court improperly granted jury instruction S-4, which states, in part:

The Court instructs the Jury that if you fail to find the defendant guilty of the felony crime of murder, then you should continue your deliberations to consider the elements of the felony crime of manslaughter.

Griffin argues that this instruction directed the jury to prefer the charge of murder over manslaughter. The State responds that there was no contemporaneous objection made to this instruction.

¶ 20. The supreme court has held numerous times that: “Failure to make a .contemporaneous objection [at trial] waives an issue for purposes of appeal.” Spicer v. State, 921 So.2d 292, 305(¶22) (Miss.2006). This issue was clearly waived because, not only was no objection made, but Griffin’s counsel specifically stated in the record that he had no objection to this jury instruction. The circuit judge noted his doubts as to whether there was a sufficient evidentiary basis to give a manslaughter instruction. Even when the circuit judge noted that it was unusual for the State and Griffin to both ask for this instruction, there was no objection. We cannot find error on the part of the circuit court when, despite the circuit judge’s reservation about giving the instruction, both parties requested that the instruction be given.

¶ 21. Further, this assertion is neither argued by Griffin nor supported with any authority in his brief. He merely presents the same argument that he has throughout the appeal by stating that the evidence was only sufficient to prove a heat-of-passion killing. As we held above, there was sufficient evidence for the jury to consider the crime of murder. Accordingly, this issue has no merit.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY 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 LEAKE COUNTY.

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

      . His last name is "Huffman,” but he signed his police statement as "Griffin.”

      . Willie was unable to fully explain what he meant by the term "rack.” He stated that he saw Griffin do something to the pistol in between the two shots.


author: IRVING, J.,

text:
    John HULSMAN and Donna Hulsman, Appellants v. BEHAVIORAL HEALTH SYSTEMS, INC. and Blue Cross & Blue Shield of Alabama, Appellees.
    No. 2008-CA-00635-COA.
    Court of Appeals of Mississippi.
    July 21, 2009.

      Robert Nicholas Norris, Louis H. Watson, Jackson, attorneys for appellants.
    James N. Bullock, Jackson, Phillip Andrew Laird, R. Pepper Crutcher Jr., Jonathan Lee Bullock, Jackson, Randall H. Sellers, Cavender C. Kimble, attorneys for appellees.
    Before LEE, P.J., IRVING and BARNES, JJ.
   IRVING, J.,

for the Court.

¶ 1. John and Donna Hulsman filed a suit in the Rankin County Circuit Court against Behavioral Health Systems, Inc. (BHS) and Blue Cross & Blue Shield of Alabama (Blue Cross), alleging several state-law claims, including vicarious liability, intentional and/or negligent infliction of emotional distress, negligent hiring, negligent supervision, corporate negligence, and gross negligence. Blue Cross and BHS filed a joint motion to dismiss or, in the alternative, a motion for summary judgment on the basis of federal preemption under the Employment Retirement Income Security Act (ERISA). The circuit court granted the motion. Feeling aggrieved, the Hulsmans appeal and assert that the circuit court erred in holding that their claims were preempted by ERISA.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. John’s employer, Motion Industries, Inc., provided a healthcare insurance plan to its employees that was administered by Blue Cross. John and Donna were participants in the plan which included a mental health program that was managed by BHS. In December 2005, Donna underwent surgery to treat nerve pain; however, the surgery did not relieve all of her pain. Accordingly, Donna’s physician recommended that she be treated by a psychiatrist to help her cope with the remaining pain. In order to receive mental health treatment, BHS requires the insured to contact BHS for a referral to the nearest certified assessment provider. Donna contacted BHS and was referred to Dr. David Richardson, a psychiatrist. Dr. Richardson prescribed several medications, which Donna alleges caused her to experience a number of adverse side effects, including uncontrollable muscle spasms and fear that she would harm herself or others.

¶ 4. Because of the side effects, the Hulsmans contacted BHS for a referral to a psychologist, so Donna could be treated without medication. BHS referred Donna to Mark Trailer, a local psychologist. According to Donna, her family physician informed her that she should still continue to see a psychiatrist. The Hulsmans asked BHS for another psychiatrist referral, and ultimately, they were referred back to Dr. Richardson.

¶ 5. On August 31, 2006, Donna called John and told him that she thought it would be best for her to be admitted to a hospital because she was afraid that she was going to hurt herself or someone around her. John then called BHS and informed them of what Donna was experiencing. He requested that BHS refer Donna to an in-patient treatment facility. According to John, the BHS representative stated that she would contact him the following week with a referral because it would be difficult to have Donna admitted into an in-patient facility over the Labor Day holiday weekend. On September 8, 2006, after having not received a referral, John again contacted BHS and requested an in-patient referral. However, no referral was given on that date. On September 11, 2006, Donna attempted suicide by slitting her wrists.

¶ 6. Additional facts, as necessary, will be discussed during the analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 7. “[An appellate court] applies a de novo standard of review to the trial court’s grant of summary judgment.” Windham v. Latco of Miss., Inc., 972 So.2d 608, 610(¶ 4) (Miss.2008) (citing Moss v. Batesville Casket Co., 935 So.2d 393, 398(¶ 15) (Miss.2006)). “The evidence must be viewed in the light most favorable to the non-moving party. If, in this view, the moving party is entitled to a judgment as a matter of law, then summary judgment should be granted in [the movant’s] favor. Otherwise, the motion should be denied.” Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995) (citing Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983)). Our rules of civil procedure require the trial court to grant summary judgment where “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). “A fact is material if it ‘tends to resolve any of the issues properly raised by the parties.’ ” Simpson v. Boyd, 880 So.2d 1047, 1050(¶ 9) (Miss.2004) (quoting Palmer, 656 So.2d at 794).

¶ 8. Our supreme court has held that preemption is proper in three circumstances: (1) “where Congress explicitly preempts state law”; (2) “where preemption is implied because Congress has occupied the entire field”; or (3) “where preemption is implied because there is an actual conflict between federal and state law.” Cooper v. Gen. Motors Corp., 702 So.2d 428, 434(¶ 16) (Miss.1997) (citing English v. Gen. Elec. Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990)).

¶ 9. In Aetna Health, Inc. v. Davila, 542 U.S. 200, 207-09, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004), the United States Supreme Court discussed in extensive detail ERISA’s purpose and preemption powers:

“When a federal statute wholly displaces the state-law cause of action through complete pre-emption,” the state claim can be removed. Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 8, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). This is so because “when the federal statute completely pre-empts the state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law.” Ibid. ERISA is one of these statutes.
Congress enacted ERISA to “protect ... the interests of participants in employee benefit plans and their beneficiaries” by setting out substantive regulatory requirements for employee benefit plans and to “provide for appropriate remedies, sanctions, and ready access to the Federal courts.” 29 U.S.C. § 1001(b).... The purpose of ERISA is to provide a uniform regulatory regime over employee benefit plans. To this end, ERISA includes expansive preemption provisions, see ERISA § 514, 29 U.S.C. § 1144, ... which are intended to ensure that employee benefit plan regulation would be “exclusively a federal concern.” Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 523, 101 S.Ct. 1895, 68 L.Ed.2d 402 (1981).
ERISA’s “comprehensive legislative scheme” includes “an integrated system of procedures for enforcement.” [Mass. Mut. Life Ins. Co. v.] Russell, 473 U.S. [134,] 147, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985) (internal quotation marks omitted). This integrated enforcement mechanism, ERISA § 502(a), 29 U.S.C. § 1132(a) ... is a distinctive feature of ERISA, and essential to accomplish Congress’ purpose of creating a comprehensive statute for the regulation of employee benefit plans. As the Court said in Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987):
“The detailed provisions of § 502(a) set forth a comprehensive civil enforcement scheme that represents a careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans. The policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA. ‘The six carefully integrated civil enforcement provisions found in § 502(a) of the statute as finally enacted ... provide strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.’ Id., at 54, 107 S.Ct. 1549, 95 L.Ed.2d 39 (quoting Russell, supra, at 146, 105 S.Ct. 3085, 87 L.Ed.2d 96).
Therefore, any state-law cause of action that duplicates, supplements, or supplants the ERISA civil enforcement remedy conflicts with the clear congressional intent to make the ERISA remedy exclusive and is therefore pre-empt-ed. See 481 U.S., at 54-56, 107 S.Ct. 1549, 95 L.Ed.2d 39; see also Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 143-145, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990).

(Emphasis and footnote added).

¶ 10. The Hulsmans contend that the Mississippi Supreme Court has not yet determined whether a claim like theirs — a claim that the medical provider failed to provide for or arrange for medical treatment — is preempted by ERISA. Accordingly, they argue that the Florida Supreme Court case, Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842 (Fla.2003), provides persuasive authority in support of their position and that its reasoning should be adopted by this court. In their briefs, the Hulsmans assert: “[Villazon ] held that based on the U.S. Supreme Court’s decision in New York Blue Cross v. Travelers Ins., 514 U.S. 645, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995), a distinction is to be made between suits which relate to the administration of employee benefit plans and those which do not.” The Hulsmans assert that when “ERISA is implicated by a complaint for failing to provide, arrange for, or supervise qualified doctors to provide the actual medical treatment for plan participants, federal preemption is inappropriate.” They contend that Blue Cross and BHS failed to provide or arrange for medical treatment for Donna and that as a result, they suffered serious injuries. We find John and Donna’s arguments unpersuasive.

¶ 11. In Davila, Juan Davila and Ruby Calad, two beneficiaries of healthcare plans covered by ERISA, brought separate Texas state-court suits, alleging (1) that the health maintenance organizations (HMOs) that administered the plans had refused to cover certain medical services in violation of an HMO’s duty to exercise ordinary care under a Texas healthcare statute and (2) that those refusals had proximately caused injuries to the beneficiaries. Davila, 542 U.S. at 204-05, 124 S.Ct. 2488. Aetna Health, Inc. (Aetna) administered Davila’s ERISA-regulated employee benefit plan by reviewing requests for coverage and paying providers. Id. at 204, 124 S.Ct. 2488. Calad’s plan was administered by CIGNA Health Care of Texas, Inc. (CIGNA), which was responsible for plan benefits and coverage decisions. Id. Davila and Calad suffered injuries that allegedly were proximately caused by Aetna’s and CIGNA’s decisions not to cover particular treatment and services recommended by their physicians. Id. at 204-05, 124 S.Ct. 2488. Davila and Calad argued that these decisions violated legal duties independent of ERISA. Specifically, they brought their claims against the insurance providers under the Texas Health Care Liability Act (THCLA), alleging that Aetna and CIGNA “ ‘controlled, influenced, participated in and made decisions which affected the quality of the diagnosis, care, and treatment provided’ in a manner that violated ‘the duty of ordinary care_Id. at 212, 124 S.Ct. 2488.

¶ 12. In holding that Davila’s and Ca-lad’s claims were completely preempted by ERISA, the Supreme Court stated:

The duties imposed by the THCLA in the context of these cases, however, do not arise independently of ERISA or the plan terms. The THCLA does impose a duty on managed care entities to “exercise ordinary care when making health care treatment decisions,” and makes them liable for damages proximately caused by failures to abide by that duty. However, if a managed care entity correctly concluded that, under the terms of the relevant plan, a particular treatment was not covered, the managed care entity’s denial of coverage would not be a proximate cause of any injuries arising from the denial. Rather, the failure of the plan itself to cover the requested treatment would be the proximate cause....
Thus, interpretation of the terms of respondents’ benefit plans forms an essential part of their THCLA claim, and THCLA liability would exist here only because of petitioners’ administration of ERISA-regulated benefit plans. Petitioners’ potential liability under the THCLA in these cases, then, derives entirely from the particular rights and obligations established by the benefit plans....
Hence, respondents bring suit only to rectify a wrongful denial of benefits promised under ERISA-regulated plans, and do not attempt to remedy any violation of a legal duty independent of ERISA. We hold that respondents’ state causes of action fall “within the scope of’ ERISA § 502(a)(1)(B) ... and are therefore completely pre-empt-ed by ERISA § 502 and removable to federal district court.

Id. at 212-14, 124 S.Ct. 2488 (internal citations omitted) (footnote added).

¶ 13. Accordingly, we find that Davila stands for the proposition that if a party’s claim emanates from the administration of an ERISA-regulated benefit plan, then the claim is preempted. Additionally, we find that Congress intended that the only remedies afforded to a party are those authorized by ERISA.

¶ 14. The Hulsmans allege that Blue Cross’s and BHS’s failure to timely refer Donna to an in-patient facility caused her suicide attempt. We find that this is not a denied-benefits claim; rather, it is a delayed-benefits claim. Regardless, the claim is related to the administration of the medical benefit plan. Therefore, in accordance with Davila, the claim is preempted by ERISA.

¶ 15. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . ERISA § 502(a), as set forth in 29 U.S.C. § 1132(a), provides:
      A civil action may be brought—
      (1)by a participant or beneficiary—
      (A) for the relief provided for in subsection (c) of this section [concerning requests to the administrator for information], or
      (B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan;
      (2) by the Secretary, or by a participant, beneficiary or fiduciary for appropriate relief under section 1109 of this title [breach of fiduciary duty];
      (3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan;
      (4) by the Secretary, or by a participant, or beneficiary for appropriate relief in the case of a violation of 1025(c) of this title [information to be furnished to participants];
      (5) except as otherwise provided in subsection (b) of this subsection, by the Secretary
      (A) to enjoin any act or practice which violates any provision of this subchapter, or
      (B) to obtain other appropriate equitable relief (i) to redress such violation or (ii) to enforce any provision of this subchapter;
      (6)by the Secretary to collect any civil penalty under paragraph (2), (4), (5), (6), (7), (8), or (9) subsection (c) or under subsection (i) or (l) is section.

      . As noted earlier, ERISA § 502(a)(1)(B) states: "A civil action may be brought by a participant or beneficiary — to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan[.]”


text:
    Rhonda Renea SIMMONS, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-KA-02255-COA.
    Court of Appeals of Mississippi.
    July 21, 2009.

      Catouehe Judge Body, attorney for appellant.
    Office of the Attorney General by 'Ladonna C. Holland, attorney for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Rhonda Renea Simmons was convicted by the Tippah County Circuit Court of the sale of cocaine. She was sentenced to twenty-five years in the custody of the Mississippi Department of Corrections, with five years suspended, and five years of post-release supervision. Aggrieved, Simmons appeals and asserts: (1) that the trial court erred in denying her motion for a change of venue, (2) that the trial court erred in allowing the trial to proceed even though no African Americans were on the jury, and (3) that the trial court erred in denying her motion to dismiss.

¶ 2. Finding no reversible error, we affirm Simmons’s conviction and sentence.

FACTS

¶ 3. On March 21, 2006, Simmons sold cocaine to Ronnie Rowland who, unbeknownst to her, was working as a confidential informant for the Tippah County Sheriffs Department. Rowland had known Simmons for several years. Immediately prior to making the buy, Rowland met with Christopher McCallister, a narcotics investigator with the Tippah County Sheriffs Department, at a church parking lot near Simmons’s home. There, Rowland was equipped with video and audio recording devices and issued a $100 bill. Rowland then walked to Simmons’s home. According to Rowland, Simmons gave him five “pieces” of crack cocaine in exchange for the $100 bill. Rowland stated that Simmons told him that she had had a “good day” because she had sold “a bill,” or $100 worth of cocaine, to three other people that day.

¶ 4. Rowland then returned to the parking lot and gave the crack cocaine to Investigator McCallister. It was then packaged, labeled, and placed in a safe at the Tippah County Sheriffs Department before being sent to the Mississippi Crime Laboratory in Jackson, Mississippi, where it was determined to be cocaine.

¶ 5. Simmons filed a motion for change of venue, a motion to suppress the videotape of the buy, and a motion to dismiss. The Tippah County Circuit Court held a hearing on the motions on November 13, 2007, and denied all of them. Simmons proceeded to trial, and the jury convicted her, leading to this appeal.

¶ 6. We find no reversible error; therefore, we affirm.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Motion for a Change of Venue

¶ 7. In her first issue, Simmons contends that the trial court erred in denying her motion for a change of venue. The law is clear in this State that “[t]he decision to grant [a] venue change is in the sound discretion of the trial judge.” Gray v. State, 799 So.2d 53, 62(¶ 32) (Miss.2001) (citing Hoops v. State, 681 So.2d 521, 526 (Miss.1996)). Thus, an appellate court “will not disturb the ruling of the [trial] court where the sound discretion of the trial judge in denying change of venue was not abused.” Id. (quoting Harris v. State, 537 So.2d 1325, 1328 (Miss.1989)).

¶ 8. In her motion, Simmons argued that she could not receive a fair trial in Tippah County because “news of this incident has been widespread throughout this small county” and because jurors may be prone to convict even in the face of weak evidence. She attached to her motion the affidavits of four residents of Tip-pah County who all stated that, based on what they had “seen, heard, and observed” since Simmons’s arrest, they did not believe that Simmons could receive a fair trial in Tippah County. We note at the outset that Simmons failed to swear to her motion, as required by Mississippi Code Annotated section 99-15-35 (Rev.2007), which provides:

On satisfactory showing, in writing, sworn to by the prisoner, made to the court, or to the judge thereof in vacation, supported by the affidavits of two or more credible persons, that, by reason of prejudgment of the case, or grudge or ill will in the county where the offense is charged to have been committed, the circuit court, or the judge thereof in vacation, may change the venue in any criminal case to a convenient county, upon such terms, as to the costs in the case, as may be proper.

(Emphasis added). Nevertheless, we briefly address this issue.

¶ 9. During the hearing on Simmons’s motion, the State called two Tippah County Supervisors, Dennis Grisham and Jimmy Gunn, as well as Tippah County tax collector, Joe Larry Shackelford. All testified: (1) that they did not know Simmons, (2) that they had not heard any publicity surrounding Simmons’s case, and (3) that they knew of no reason why Simmons could not receive a fair trial in Tip-pah County. Thereafter, the trial judge denied Simmons’s motion for a change of venue, and her case proceeded to trial.

¶ 10. In her brief, Simmons relies on Hickson v. State, 707 So.2d 536 (Miss.1997) to support her position that the trial judge erred in fading to grant her motion. In Hickson, our supreme court held:

Where a defendant presents the court with an application for change of venue accompanied by two affidavits which affirm the defendant’s inability to receive a fair trial in a particular location, a presumption is created that it is impossible for a fair trial to be had in that place. This presumption may be rebutted if the State proves from voir dire that the trial court impaneled an impartial jury. If the State makes such a showing of impartiality, this Court defers to the trial court’s denial of the change of venue request, even in the face of adverse publicity, for the venue decision is, after all, within the discretion of the lower court.

Hickson, 707 So.2d at 541-42(¶ 22) (citations omitted).

¶ 11. During voir dire, the trial judge addressed Simmons’s concerns that she could not receive a fair trial as follows:

BY THE COURT: Now, Ms. Simmons is charged with selling cocaine. Simply because of the nature of the charge, is there any reason that you could not be fair and impartial to her? Some people have had trouble in their families and problems in their families because of that, and is there any reason that you could not give her a fair and impartial trial?
BY THE COURT: Now, Ms. Simmons is an African-American. That must not, cannot enter into your decision-making process. She’s represented by Mr. Randolph Walker who is an African-American. That cannot, must not enter into your decision-making process. What you will base your opinion upon and your verdict, if one is reached, upon is the testimony of the witnesses that come from the witness stand and the evidence that’s introduced. Is there any reason because of Ms. Simmons’s race that it would make it more difficult or would make it easier for you to find her- guilty or not guilty? Would it weigh on your mind one way or the other?

None of the venire persons indicated to the trial judge that they would have difficulty in granting Simmons a fair trial. A jury was impaneled shortly thereafter.

¶ 12. We defer to the trial judge’s decision to deny Simmons’s motion, as we find, based on the questions asked by the trial judge and the lack of any affirmative responses thereto, that an impartial jury was impaneled. There is no merit to this contention of error.

2. Jury Selection

¶ 13. Following jury selection, Simmons’s trial attorney filed a motion to quash the jury panel, arguing that no African Americans were selected to serve on the jury even though Tippah County has a twenty-percent minority population. Her attorney argued that Simmons could not “get a fair trial unless there [was] some representation on the panel by a member of her own race.” Simmons now argues that she was denied the right to an impartial jury selected from a random cross-section of her community, as twenty-two minorities were summoned for jury duty, but only six or seven reported for service.

¶ 14. The prosecutor responded that he did not know the number of African Americans who had been summoned for jury duty. However, he noted that of the six African Americans who had reported, only one was stricken for cause. The prosecutor argued that the trial judge was not authorized to strike the jury panel, because a pattern of exclusion based on race was not proven. The trial judge agreed.

¶ 15. Simmons directs our attention to Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), wherein the United States Supreme Court announced certain criteria that a defendant must meet in order to establish a prima facie violation of the fair cross-section requirement:

(1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this un-derrepresentation is due to systematic exclusion of the group in the jury-selection process.

In Duren, the United States Supreme Court ruled unconstitutional a Missouri statute which allowed for the exemption of all women from jury duty, if they so desired, because the exemption unnecessarily diluted women from the jury pool in violation of the cross-section requirement of the Sixth Amendment. Id. at 370, 99 S.Ct. 664.

¶ 16. Clearly, African Americans are considered a “distinctive group in the community.” However, Simmons failed to satisfy the remaining elements of the test: that “representation of [African Americans] in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and ... that this underrepresen-tation is due to systematic exclusion of the group in the jury-selection process.” A single venire wherein a distinctive group is under represented does not constitute systematic exclusion of that group from the jury-selection process. This issue lacks merit.

S. Motion to Dismiss

¶ 17. A motion to dismiss challenges the sufficiency of the evidence. Wright v. State, 958 So.2d 158, 168(¶ 27) (Miss.2007) (citing Hawthorne v. State, 835 So.2d 14, 21(¶ 31) (Miss.2003)). “When reviewing the sufficiency of the evidence, [an appellate court] must ask 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. (citing Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005)).

¶ 18. Simmons filed a motion to dismiss, asserting the affirmative defense of entrapment. She argued that the State induced her to commit the crime and that she lacked predisposition. She contends that the State orchestrated the crime and failed to show any predisposition on her part. “Entrapment has been defined as ‘the act of inducing or leading a person to commit a crime not originally contemplated by [the person], for the purpose of trapping [the person] for the offense.’ ” Morgan v. State, 703 So.2d 832, 835 (Miss.1997) (quoting Walls v. State, 672 So.2d 1227, 1230 (Miss.1996)). Further, it has been established in our jurisprudence that:

If the defendant already possesses the criminal intent, and the request ... merely gave the defendant the opportunity to commit what he or she was already predisposed to do, entrapment is not a defense. Before a defendant can raise the defense of entrapment, he or she is required to show evidence of government inducement to commit the criminal act and a lack of predisposition to engage in the criminal act prior to contact with government agents,

/¿(citation omitted).

¶ 19. Simmons failed to prove that the State induced or led her to sell crack cocaine to Rowland. According to Rowland’s testimony, Simmons had been selling drugs earlier in the day before he presented himself at her residence. Thus, it is clear that Simmons was already predisposed to selling drugs; therefore, the defense of entrapment was not available to her. We find no merit to this issue.

¶ 20. THE JUDGMENT OF THE TIPPAH COUNTY CIRCUIT COURT OF CONVICTION OF THE SALE OF COCAINE AND SENTENCE OF TWENTY-FIVE YEARS, WITH FIVE YEARS SUSPENDED, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FIVE YEARS OF POST-RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Actually, Simmons asserts in this issue that the trial court erred in allowing the trial to go forward even though no African Americans were in the “jury pool.” Based on the argument set forth in her brief, we conclude that Simmons is arguing that the trial judge erred in allowing the trial to proceed even though there were no African Americans on the petit jury, as Simmons concedes that there were African Americans in the venire.

      . Prior to becoming a confidential informant, Rowland, who was addicted to crack cocaine, had been arrested and charged with selling cocaine to a confidential informant. After his arrest, Rowland agreed to work with the sheriff's department. The charge against Rowland was still pending against him at the time of Simmons’s trial.

      . Mississippi Code Annotated section 13-5-2 (Rev.2002) provides:
      It is the policy of this state that all persons selected for jury service be selected at random from a fair cross section of the population of the area served by the court, and that all qualified citizens have the opportunity in accordance with this chapter to be considered for jury service in this state and an obligation to serve as jurors when summoned for that purpose. A citizen shall not be excluded from jury service in this state on account of race, color, religion, sex, national origin, or economic status.

      . The prosecutor explained that the juror who was stricken for cause had previous felony convictions for contributing to the delinquency of a minor, domestic violence, and trespassing.


author: ROBERTS, J.,

text:
    John G. ARGO, IV, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-KA-01968-COA.
    Court of Appeals of Mississippi.
    July 21, 2009.

      Ronald W. Lewis, Oxford, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. John G. Argo IV was convicted of fourteen counts of exploitation of children in violation of Mississippi Code Annotated section 97-5-33(5) (Rev.2006). The DeSo-to County Circuit Court sentenced Argo to fourteen concurrent sentences of fifteen years each in the custody of the Mississippi Department of Corrections followed by five years of post-release supervision. Aggrieved, Argo appeals and raises the following issues: (1) he received ineffective assistance of counsel; (2) the circuit court erred when it failed to grant a circumstantial-evidence instruction; (3) the prosecution engaged in reversible misconduct; and (4) the evidence was insufficient to convict him. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In October 2004, the National Center for Missing and Exploited Children contacted the Mississippi Attorney General’s Office regarding the transmission and receipt of images depicting children engaged in sexually explicit conduct. Keith Leavitt, a special investigator with the Mississippi Cyber Crime Center, subpoenaed America Online (AOL), an internet service provider, regarding such images. As a result, Investigator Leavitt obtained information that led him to Argo.

¶ 3. Investigator Robert Mahaffey, also with the Mississippi Cyber Crime Center, obtained a search warrant for Argo’s home in DeSoto County, Mississippi. In December 2004, Investigator Mahaffey and Chief Investigator Travis Ward executed that search warrant. Argo arrived home during the search. Investigator Mahaffey advised Argo of his rights and interviewed Argo. Argo’s home computer was seized incident to the search.

¶ 4. Sherita Sullivan, a computer forensic examiner with the Attorney General’s Office, conducted a forensic examination of Argo’s home computer. Sullivan found numerous images depicting pornography, but the majority of those images apparently depicted adult pornography. However, fourteen images allegedly depicted child pornography.

¶ 5. In August 2005, a DeSoto County grand jury returned an indictment against Argo. That indictment charged Argo with fourteen violations of section 97-5-33(5). Argo pled “not guilty” to all fourteen counts. On September 18, 2007, Argo went to trial before the circuit court. For brevity’s sake, the events that transpired during Argo’s two-day trial will be discussed in greater detail as necessary in the analysis portion of this opinion. Suffice it to say, Argo was convicted of all fourteen counts of child exploitation. Following unsuccessful post-trial motions, Argo appeals.

ANALYSIS

I. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 6. Under a single heading, Argo raises nine allegations centered on the concept that his retained trial counsel, Steven Farese, Sr., was ineffective. Argo raises his ineffective assistance of counsel claim on direct appeal. This Court has stated that:

When a party raises an ineffective assistance of counsel claim on direct appeal, the proper resolution is to deny relief without prejudice to the defendant’s right to assert the same claim in a post-conviction relief proceeding. We should reach the merits on an ineffective assistance of counsel issue on direct appeal only if (1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge. If we do not consider the issue due to the state of the record, assuming we affirm the conviction, the defendant may raise his ineffective assistance of counsel claim in [a] post-conviction relief proceeding.

Graves v. State, 914 So.2d 788, 798(¶ 35) (Miss.Ct.App.2005).

¶ 7. The parties have not entered any stipulation that the record is adequate to allow this Court to make findings without consideration of a trial judge’s findings of fact, and we cannot conclude that the record, standing alone, affirmatively shows ineffectiveness of constitutional dimensions. Accordingly, we decline to consider this issue on direct appeal. However, Argo is not precluded from raising his claims in a motion for post-conviction relief.

II. DENIAL OF CIRCUMSTANTIAL-EVIDENCE INSTRUCTION

¶ 8. Here, Argo claims the circuit court erred when it declined to instruct the jury pursuant to a proposed jury instruction designated as D-l. Proposed instruction D-l was a circumstantial-evidence instruction which stated that “[t]he case before you is one of circumstantial evidence. You are free to find John Argo guilty of Exploitation of Children, you must first find him guilty not only beyond a reasonable doubt, but also to the exclusion of every reasonable hypotheses consistent with innocence.”

¶ 9. “[Wjhile a party is entitled to have jury instructions submitted that represent his or her theory of the case, an instruction that ‘incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence’ need not be submitted to the jury.” State v. McMurry, 906 So.2d 43, 46(¶ 12) (Miss.Ct.App.2004) (quoting Agnew v. State, 783 So.2d 699, 702(¶ 6) (Miss.2001)). Additionally, a circumstantial-evidence instruction is only necessary when the prosecution’s case is based entirely on circumstantial evidence. Turner v. State, 910 So.2d 598, 602(¶ 17) (Miss.Ct.App.2005). “Direct evidence has been held to include evidence such as eyewitness testimony, the defendant’s confession to the offense charged, or the defendant’s admission as to an important element thereof.” Id. at 603(¶ 17).

¶ 10. As the State argues, the circuit court correctly refused Argo’s request to have the jury instructed pursuant to proposed instruction D-l. Argo was not entitled to a circumstantial-evidence instruction because there was direct evidence that he possessed child pornography. Images depicting child pornography were found stored in files in Argo’s home computer. Argo personally testified that he created a folder and moved fourteen images depicting child pornography into those folders. Although Argo attempted to explain his possession of the images as inadvertent, the fact remains that there was direct evidence that he had possessed the images at issue. Accordingly, he was not entitled to a circumstantial-evidence instruction, and the circuit court did not err when it refused proposed instruction D-l.

III. PROSECUTORIAL MISCONDUCT

¶ 11. Argo claims that the prosecution engaged in reversible misconduct when it conferred with one of its witnesses, Investigator Ward, during the evening after the first day of trial. However, Argo’s attorney did not raise a contemporaneous objection. Failure to make a contemporaneous objection waives an issue for purposes of appeal. Williams v. State, 684 So.2d 1179, 1203 (Miss.1996). Accordingly, Argo did not properly preserve this issue for appellate review.

IV. SUFFICIENCY OF THE EVIDENCE

¶ 12. Argo claims the evidence against him was legally insufficient to find him guilty. A challenge to the sufficiency of the evidence requires a determination that, as to one or more essential elements of the crime, the State’s evidence is so lacking that a fair-minded juror could only find the defendant not guilty. McClain v. State, 625 So.2d 774, 778 (Miss.1993). In reviewing Argo’s claim, this Court is required to view all of the evidence in the light most favorable to the State. Id.

¶ 13. We find no merit to Argo’s claim under this issue. The evidence, viewed in the light most favorable to the State, shows that: (1) Argo owned the computer; (2) Argo testified that he received the images of child pornography via an email; (3) Argo admitted that he created a folder in his computer and placed the fourteen images at issue in that folder; (4) Argo admitted that he did not report receipt of the images to law enforcement; and (5) Dr. Robert Meacham, a physician, testified that the images depicted children engaged in sexually explicit conduct. Accordingly, we find no merit to this issue.

¶ 14. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT OF CONVICTION OF FOURTEEN COUNTS OF CHILD EXPLOITATION AND SENTENCE OF FIFTEEN YEARS FOR EACH COUNT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE SENTENCES TO RUN CONCURRENTLY FOLLOWED BY FIVE YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. BARNES, J., NOT PARTICIPATING.