author: BARNES, J„

text:
    Benjamin TALBERT a/k/a Benjamin Lewis Talbert, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01273-COA.
    Court of Appeals of Mississippi.
    April 30, 2013.
    Rehearing Denied Aug. 20, 2013.
    Certiorari Denied Nov. 7, 2013.

      Office of Indigent Appeals: W. Daniel Hinchcliff, Benjamin Talbert, appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
   BARNES, J„

for the Court:

¶ 1. A DeSoto County Circuit Court jury convicted Benjamin Talbert for the murder of Brendan Talley. Talbert was sentenced to a mandatory term of life imprisonment in the custody of the Mississippi Department of Corrections (MDOC). The Mississippi Office of Indigent Appeals represents Talbert on appeal. The attorney filed a brief pursuant to Lindsey v. State, 939 So.2d 743, 748 (¶ 18) (Miss.2005), stating that after diligently searching the history and record of Talbert’s case, he found no arguable issues for appeal to present to this Court in good faith. Following the procedure set forth in Lindsey, Talbert filed a pro se brief on his own behalf. Citing several assignments of error, he appeals his conviction and sentence. Finding no error, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. Talbert dated Leanna Russell for approximately a year, until they parted company in June 2009 due to Talbert’s substance-abuse problem. Talbert kept in contact with Russell, attempting to reconcile, and she remained friendly with Tal-bert, not wanting to hurt his feelings.

¶ 3. Two months after the breakup, Tal-bert went to Russell’s apartment uninvited. Russell was there with her new boyfriend, Talley, and another friend, Corey Kessler. Talbert asked Russell if she was dating Talley. To spare Talbert’s feelings, Russell claimed Talley was just a friend. Talbert was unconvinced and called Kes-sler later that evening, asking if Talley was Russell’s boyfriend. Kessler denied that he was.

¶ 4. The following day, on August 8, 2009, an upset Talbert called Russell and stated he was going to commit suicide by shooting himself. She urged him not to harm himself. He called her again later that evening, wanting to see her, but she refused. Although Russell lied and said that she was not home, Talbert showed up armed at Russell’s apartment shortly thereafter. Talley was in the apartment with Russell. After Talbert repeatedly beat on the door, Russell opened it. Tal-bert pushed his way inside, initially holding the pistol to his own head. Instead of shooting himself, however, Talbert shot Talley three times, killing him, before fleeing the scene.

¶ 5. In the hours after the shooting, the police talked with Talbert several times on the phone, and he eventually surrendered to police at his mother’s residence. Searching Talbert, police recovered a .22-caliber revolver and a crack pipe from his pocket. The handgun had four spent rounds and one unspent round. After being advised of his rights, Talbert confessed to shooting Talley. He also stated that he had smoked crack before and after the shooting.

¶ 6. Following a jury trial, Talbert was convicted of murder and sentenced to life imprisonment in the custody of the MDOC, which sentence was to run consecutively to any another sentences. Talbert filed motions for a judgment notwithstanding the verdict and a new trial, which were denied.

¶ 7. On appeal, Talbert raises numerous assignments of error. For clarity, we have consolidated some of the issues in our discussion. After reviewing the issues cited by Talbert, we find no error exists and affirm the conviction and sentence.

ANALYSIS

I. Whether the circuit court erred in overruling Talbert’s motion to suppress.

¶ 8. Talbert filed a motion to suppress his taped statement given to police, claiming that he was under the influence of intoxicants at the time and, therefore, could not knowingly and voluntarily waive his rights. The circuit court overruled the motion on July 22, 2011, and the recorded statement was submitted into evidence. On appeal, Talbert reasserts his argument, noting the fact that he told police officers that he had been smoking crack, and a crack pipe was in his pocket when he was apprehended.

¶ 9. Whether a defendant intelligently, knowingly, and voluntarily waives his rights “is a factual question to be determined by a [circuit] court from the totality of the circumstances.” Taylor v. State, 94 So.3d 298, 307 (¶ 21) (Miss.Ct.App.2011) (citing Martin v. State, 854 So.2d 1004, 1007 (¶ 4) (Miss.2003)). “We will only reverse a circuit court’s ‘determination of voluntariness if convinced that such a finding is manifestly wrong and/or against the overwhelming weight of the evidence.’ ” Id.

¶ 10. The police investigation report shows that Talbert admitted that he had smoked crack prior to the shooting. Officer Todd Samples testified that when he spoke to Talbert approximately an hour after the shooting, Talbert confessed that he had been smoking crack. However, the investigation report also notes that Talbert was cooperative with law enforcement and acknowledged that he understood his rights when giving his confession, which occurred approximately four hours after the shooting. At the hearing on the motion to suppress Talbert’s statement, Officer Samples stated there was nothing to indicate that Talbert did not understand or comprehend what he was doing. Detective Danielle Beith also interviewed Talbert after the shooting, and she testified at the hearing that Talbert appeared to understand what he was saying when he gave his statement. She stated: “There didn’t appear to be any effects. He appeared to be coherent and understood what we were doing.” Later, at trial, Officer Samples said that he would not interview a suspect who appeared to be under the influence and reiterated that Talbert did not appear to be under the influence of any drugs. Furthermore, the evidence of the crack pipe found in his pocket was not introduced at the motion hearing.

¶ 11. Based on the evidence presented, we find that there is sufficient evidence to support the circuit judge’s finding that Talbert’s waiver of his rights and his recorded statement were voluntarily and knowingly made.

II. Whether the questioned credibility of Officer Samples’s testimony requires a new trial.

¶ 12. Talbert claims Officer Samples gave perjured testimony when he stated at trial that he conducted a pat down of Talbert during the arrest and retrieved the murder weapon. Talbert insists that discovery documents show another officer performed the pat down and seized the gun. Talbert is referring to the investigative report completed by Officer Samples that stated: “Deputy Brett Grossman recovered a small [J22 caliber derringer (revolver) in Talbert’s right pocket[.]”

¶ 13. Talbert is correct that Officer Samples testified: “I patted him down for safety purposes and recovered a gun, a small .22[d]erringer.” The Mississippi Supreme Court has stated: “To be sure, where it may be established that a conviction has been obtained through the use of false evidence or perjured testimony, the accused’s rights secured by the [D]ue [Pjrocess [Cjlause of the Fourteenth Amendment of the Constitution of the United States are implicated.” Pearson v. State, 428 So.2d 1361, 1363 (Miss.1983) (citing Mooney v. Holohan, 294 U.S. 103, 112-13, 55 S.Ct. 340, 79 L.Ed. 791 (1935)).

¶ 14. However, Talbert has not asserted that Officer Samples was not present when the weapon was recovered. The identification of which officer retrieved the murder weapon is immaterial to the facts of this case so long as Officer Samples was present when Talbert was searched and the gun retrieved from his person. There is nothing to show that the misstatement in Officer Samples’s testimony was material to obtaining Talbert’s murder conviction. Therefore, we find no merit to Tal-bert’s claim.

III. Whether the circuit court violated Talbert’s rights under the Sixth Amendment of the United States Constitution.

¶ 15. Talbert contends that the circuit court erred by not allowing Dr. Criss Lott, a forensic psychologist, to testify on the defendant’s behalf. Dr. Lott provided a report to the circuit court as to Talbert’s competence to stand trial. Lott’s testimony from a previous trial, which resulted in a hung jury, was proffered to the court. In denying the admission of Dr. Lott’s testimony, the circuit judge concluded:

Basically, the testimony of Dr. Lott would show that this young man upon examination had an addiction to certain drugs, and whether or not expressed exactly[,] more or less a defense of diminished capacity, which, of course, is not legally recognized in the State of Mississippi. Mississippi recognizes the McNaughton [sic] rule, which provides that the only defense of that sort that’s available to a person is the McNaughton [sic] test, which means a person cannot distinguish between right and wrong.
Certainly insanity is not being claimed in this case; therefore, the only thing to claim, according to Dr. Lott, is the diminished capacity.
And I’m ruling that Dr. Lott’s testimony is not relative to the inquiry here before us today.

¶ 16. Talbert claims Dr. Lott’s testimony regarding his long history of drug use and state of mind was relevant to negate Talbert’s intent to kill and preserve a defense of manslaughter. We, find that the circuit court correctly excluded this testimony as diminished capacity is not a defense in Mississippi. See Brown v. State, 981 So.2d 1007, 1015 (¶ 24) (Miss.Ct.App.2007) (citations omitted) (holding “that ‘diminished capacity’ is not a recognized defense to a criminal charge in Mississippi”). Furthermore, “[i]t is well established that voluntary intoxication is not a defense in Mississippi.” Adams v. State, 62 So.3d 432, 441 (¶ 31) (Miss.Ct.App.2011) (citing Smith v. State, 445 So.2d 227, 230-31 (Miss.1984)). This issue is without merit.

IV. Whether the prosecution’s alleged false statement violated Talbert’s due process under the law.

¶ ,17. Talbert argues that the prosecutor made false statements to members of the venire. Specifically, he draws attention to the prosecution’s statement during voir dire:

One quick thing is you will not be involved with punishment in this ease. Everybody understand that? You, as jurors, will not be involved with punishment should the evidence prove beyond a reasonable doubt Mr. Talbert’s guilty. Punishment will strictly be up to Judge Chatham. Everybody understand -that?

Talbert claims that the jury’s role in deciding whether to convict him of murder or convict him for manslaughter involved punishment. However, the prosecution’s statement was not false; the jury was not involved in determining the sentencing of the defendant. Consequently, there is no merit to this argument.

V. Whether the State committed prosecutorial misconduct by using the terms “murder” and “deliberately.”

¶ 18. The circuit court sustained Talbert’s motion in limine as to the use of the term “murder” during the trial. Tal-bert now claims he was unjustly prejudiced due to the State’s liberal use of the term “deliberately” and its use of the term “murder” in its closing argument. ■

¶ 19. During opening statements, the prosecutor said: “[Talbert] deliberately armed himself. He deliberately went in there, and he deliberately fired the gun that contained the bullets that killed [Talley.]” Defense counsel made no objection to the use of the term “deliberately.” The State also used the' term “deliberately” several times in its questioning of Officer Samples. After an objection by defense that the term was leading, the circuit court sustained the objection and asked the State to rephrase its questioning. The State also concluded its closing argument by saying: “But that’s not an excuse for murder.” No objection was made by the defense; thus, the issue is waived on appeal. See Hawkins v. State, 90 So.3d 116, 121 (¶ 20) (Miss.Ct.App.2012) (Failure to object contemporaneously to argument at trial “waives the issue on appeal[.]”). We also note that Talbert’s defense counsel also used the term “murder” in his opening statement.

¶ 20. Furthermore, we find no evidence of prosecutorial misconduct. The use of the term “deliberately” was not banned by the court. Further, while the prosecution used the term “murder” in its closing argument, Talbert’s motion in limine had asked that the .State be prevented from using the term “murder” during its examination of witnesses. In sustaining the motion, the circuit judge stated: “I would ask that you instruct your witnesses to refer to the incident as a homicide investigation or as a shooting[.]”

¶ 21. The supreme court has held:

Attorneys are allowed a wide latitude in arguing their cases to the jury. However, prosecutors are not permitted to use tactics which are inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury. The standard of review that appellate courts must apply to lawyer misconduct during opening statements or closing arguments is whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.

Anderson v. State, 62 So.3d 927, 939-40 (¶ 39) (Miss.2011) (quoting Tate v. State, 20 So.3d 623, 629 (¶ 14) (Miss.2009)). In the present case, the context of the term “murder” was merely used by the State to point out that the evidence supported a finding of deliberate-design murder. “The purpose of a closing argument is to fairly sum up the evidence.” Goff v. State, 14 So.3d 625, 654 (¶ 115) (Miss.2009) (quoting Rogers v. State, 796 So.2d 1022, 1027 (¶ 15) (Miss.2001)). As such, “the prosecutor, as any other counsel, is free to recall and comment on testimony offered in evidence and to draw inferences.” Id. at (¶ 116) (quoting Bell v. State, 725 So.2d 836, 851 (¶ 40) (Miss.1998)). Therefore, we find that the State’s use of the term “murder” during its closing argument was permissible.

VI. Whether Talbert was denied the right to a fair and impartial jury.

¶ 22. Talbert claims that his right to a fair and impartial jury was violated, as there were too many members of the veni-re who had ties either to law enforcement, to the district attorney’s office, or to victims of crimes. Talbert cites Mhoon v. State, 464 So.2d 77 (Miss.1985), to support his claim. In Mhoon, six members of the jury were either law enforcement officers or related to a law enforcement officer. Id. at 80. Moreover, the jury foreman was a uniformed police officer. Id. In remanding the case for a new trial, the Mississippi Supreme Court stated:

This Court does not hold that a person engaged in law enforcement, or related by blood or marriage to one engaged in law enforcement, should be per se excluded from jury service. However, in a unique factual situation such as this unusual case, the opportunity for undue influence over the opinions of other jurors was too great a risk. A uniformed policeman served as foreman of the jury. This Court holds that under this novel situation the coercive inference on the jury precludes this Court from saying that this appellant was afforded his constitutional right of a trial by an impartial jury secured by Art[icle] 3, [Section] 26 of our Constitution. Additionally, due process of law guaranteed by our Constitution under Art[icle] 3, [Section] 14 requires a retrial.

464 So.2d at 82.

¶ 23. Mhoon, however, is distinguishable from the present case as no venire member listed by Talbert was actually made a member of the jury. Furthermore, Talbert only had to use three of his peremptory strikes to eliminate members of the venire who had ties to law enforcement, and all but two of the listed venire members attested that they could be fair and impartial.

In general, a voir dire is presumed sufficient to ensure a fair and impartial jury. To overcome this presumption, a party must present evidence indicating that the jury was not fair and impartial and show that prejudice resulted from the circuit court’s handling of the voir dire. A [circuit] court’s finding that an impartial jury was impaneled will not be reversed unless the court abused its discretion. This Court will treat with deference a venire person’s assertions of impartiality.

Ross v. State, 954 So.2d 968, 988 (¶ 81) (Miss.2007) (citations omitted). We find that Talbert has not provided any evidence that the jury was not fair or impartial or that any prejudice occurred as a result of voir dire. Accordingly, we find no error.

VII. Whether the State’s use of peremptory strikes demonstrated a gender bias.

¶24. Talbert claims that the jury composition of eleven females and only one male violated his rights under the Equal Protection Clause of the Fourteenth Amendment. Peremptory strikes may not be used for the purpose of striking jurors based solely on their race or gender. See J.E.B. v. Alabama, 511 U.S. 127, 146, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994); Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). To establish a prima facie case of discrimination, the defendant must “demonstrate] that the percentage of the State’s peremptory strikes exercised on members of the protected class was significantly higher than the percentage of members of the protected class in the venire.” States v. State, 88 So.3d 749, 755 (¶ 22) (Miss.2012) (citing Pitchford v. State, 45 So.3d 216, 225 (¶ 15) (Miss.2010)). “This Court will accord a [circuit] judge’s Batson determinations great deference, as such determinations are based largely on credibility.” Perry v. State, 949 So.2d 764, 766 (¶ 5) (Miss.Ct.App.2006) (citing Tyler v. State, 911 So.2d 550, 553 (¶ 10) (Miss.Ct.App.2005)).

¶ 25. As the State notes, it was Tal-bert’s defense counsel who used the majority of his peremptory strikes again males. In fact, during the jury selection process, the prosecution accused defense counsel of striking male jurors solely based on then-gender. At that moment in the proceedings, the jury consisted of one male juror out of ten. The defense presented gender-neutral reasons for striking the prospective jurors, stating that one male was related to law enforcement, and his cousin was the victim of a crime. Defense counsel also reasoned that two other male jurors looked angry, and one of the male jurors was not “attentive.” The defense then charged the State with striking female jurors based on their gender. In response, the State observed that it had already selected nine women to serve on the jury. The circuit judge found that “[n]one of the peremptory challenges appear to be on the basis of genderf,]” and the selection of the jury continued.

II26. Giving deference to the circuit judge’s findings, we find there was a gender-neutral basis for the peremptory strikes. Accordingly, we find no error.

VIII. Whether the circuit court erred in admitting photographs of the deceased.

¶ 27. Talbert filed a motion in limine to exclude all photographs of the decedent. The circuit court, however, allowed some photographs of the deceased to be admitted into evidence, finding that they were relevant to show intent. In addition, although defense counsel claimed that it was more prejudicial than probative, the circuit court allowed the State to introduce one photograph of the victim while he was alive. Talbert maintains that it was error to admit the photographs.

¶ 28. “As a general rule, the admission of photographs is within the discretion of the [circuit] court[.]” Barfield v. State, 22 So.3d 1175, 1181 (¶ 14) (Miss.2009). However, the supreme court has commented:

[PJhotographs of the victim should not ordinarily be admitted into evidence where the killing is not contradicted or denied, and the corpus delicti and the identity of the deceased have been established. Photographs of bodies may nevertheless be admitted into evidence in criminal cases where they have probative value and where they are not so gruesome or used in such a way as to be overly prejudicial or inflammatory.

Sudduth v. State, 562 So.2d 67, 70 (Miss.1990) (citations omitted). Furthermore, “photographs have evidentiary value when they ‘(1) aid in describing the circumstances of the killing; (2) describe the location of the body and cause of death; and (3) supplement or clarify witness testimony.’ ” Barfield, 22 So.3d at 1181 (¶ 15) (quoting McIntosh v. State, 917 So.2d 78, 83 (¶ 13) (Miss.2005)).

¶ 29. In this case, the State presented the photographs of the deceased to describe the circumstances of the killing and to show that Talbert chased down Talley in the apartment and shot him at close range. The State presented the other photograph of Talley merely to show the jury “what [Talley] looked like.”

¶ 30. Upon review, we do not find that the photographs were cumulative, or that their potential for prejudice outweighed their probative value. Therefore, we hold that the circuit judge did not abuse his discretion by admitting the photographs into evidence.

IX. Whether the circuit court violated Talbert’s rights under the Confrontation Clause.

¶ 31. Talbert claims that the circuit court should have required the State to present testimony by the forensic scientist who conducted the ballistic testing on the murder weapon. To support his claim, Talbert cites Bullcoming v. New Mexico, — U.S. -, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). In Bullcoming, the United States Supreme Court held that the Confrontation Clause did not permit the prosecution “to introduce a forensic laboratory report” with “surrogate testimony” of an analyst that “had neither participated in nor observed the test on [Donald] Bullcom-ing’s blood sample.” Id. at 2709-10. We find Bullcoming not relevant to the present case, as the State did not present as evidence any forensic testing of the murder weapon. There was no dispute at trial that Talbert fired the gun.

¶ 32. We also reject Talbert’s claim that it was error to allow Officer Samples to give expert testimony regarding the murder weapon. Defense counsel failed to object to this testimony at trial; thus, this argument is barred on appeal. See Davis v. State, 992 So.2d 1190, 1193 (¶ 9) (Miss.Ct.App.2008) (“A defendant is proeedurally barred from asserting an issue on appeal if he fails to object to the statements during trial.” (citing Moore v. State, 938 So.2d 1254, 1265 (¶ 32) (Miss.2006))). Moreover, the record reflects that Officer Samples merely testified as to how the gun worked and how to load the gun. The only purpose of this testimony was to show that the gun had to be manually cocked before it would fire again. We find no merit to this issue.

X. Whether defense counsel rendered ineffective assistance of counsel.

¶ 33. Talbert claims that his defense attorney failed to share discovery information with him. At the State correctly notes, ineffective-assistance-of-counsel claims are rarely heard “on direct appeal unless ‘(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 [circuit] judge.’ ” Johnson v. State, 50 So.3d 335, 339 (¶ 19) (Miss.Ct.App.2010) (quoting Graves v. State, 914 So.2d 788, 798 (¶ 35) (Miss.Ct.App.2005)). Our review of this type of claim “is confined strictly to the record.” McKnight v. State, 94 So.3d 1144, 1152 (¶ 39) (Miss.Ct.App.2011) (citing Colenburg v. State, 735 So.2d 1099, 1102 (¶ 6) (Miss.Ct.App.1999)).

¶ 34. We find that the record is inadequate to show ineffective assistance of counsel of constitutional dimensions. Therefore, this claim is dismissed without prejudice in order to preserve Talbert’s right to raise this issue in post-conviction proceedings.

XI. Whether cumulative error warrants relief from the judgment.

¶ 35. Lastly, Talbert contends that the circuit court’s cumulative errors denied him due process and warrant a reversal of his conviction. “However, a ‘reversal based upon cumulative error requires a finding or findings of error.’” Johnson v. State, 75 So.3d 63, 69 (¶ 20) (Miss.CtApp.2011) (quoting Madden v. State, 42 So.3d 566, 574 (¶ 31) (Miss.Ct.App.2010)). As we have found no merit to Talbert’s individual claims, we conclude that no cumulative error exists in this instance.

¶ 36. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE SENTENCE TO RUN CONSECUTIVELY TO ANY SENTENCE CURRENTLY BEING SERVED, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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

      . The circuit court is referring to M'Naghten's Case, 10 Clark & F. 200, 210, 8 Eng. Rep. 718, 111 (1843).


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    John Willie BELL Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01261-COA.
    Court of Appeals of Mississippi.
    May 21, 2013.
    Rehearing Denied Aug. 20, 2013.
    Certiorari Denied Oct. 31, 2013.

      Imhotep Alkebu-Lan, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In May 2008, John Willie Bell was convicted in the Madison County Circuit Court of burglary of a dwelling and sentenced as a habitual offender to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for parole or probation. Pri- or to jury deliberations, Bell filed a motion for a directed verdict, which was denied. Shortly after the trial, Bell filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a motion for a new trial. The motion remained pending until June 2011, when appellate counsel was retained and a hearing on the motion was set. In July 2011, the circuit court denied Bell’s motion. Bell’s appellate counsel timely filed an appeal, claiming the circuit court erred in denying Bell’s motion for a directed verdict and his motion for a JNOV or, in the alternative, a new trial. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On March 26, 2005, Courtney Turner was in the shower at her boyfriend’s apartment in Ridgeland, Mississippi, when she heard movement outside of the bathroom door. Upon opening the door, she saw a man holding her wallet. The man lifted his hands, dropped the wallet, and said: “The door was open.” Turner pushed the man toward the front door, unlocked the front door, and pushed the man out of the door. Turner later noticed that one of the windows in the apartment was open, and the blinds had been pulled off of the wall and were lying on the apartment floor. She also discovered that cheeks and cash were missing from her purse.

¶ 3. Turner quickly called the Ridgeland Police Department to report the burglary. She gave a description of the culprit to the responding police officer. Turner stated the burglar was a short male, approximately eighteen years old, had gold teeth, and wore a white t-shirt with black pants. Several days later, Turner was called into the police department and shown a photographic lineup with six pictures. Bell’s picture was in the lineup, and Turner identified Bell as the burglar. An indictment was issued for Bell on the charge of burglary of a dwelling. He was then arrested at his sister’s apartment, which is in the same apartment complex where the burglary had occurred.

¶ 4. After pleading not guilty, a jury trial took place in May 2008. Turner testified on behalf of the State and made an in-court identification of Bell as the man she saw in her boyfriend’s apartment attempting to steal her wallet. Bell declined to take the stand, and his defense counsel presented no evidence in his case-in-chief. After his motion for a directed verdict was denied, the jury deliberated and found Bell guilty of burglary of a dwelling.

¶ 5. Bell had been convicted of shoplifting and sale of cocaine. Due to his prior convictions, the State moved to amend the indictment to reflect Bell’s status as a habitual offender. The circuit court complied, and Bell was sentenced as a habitual offender to twenty-five years in the custody of the MDOC without eligibility for parole or probation. Bell’s defense counsel quickly filed a motion for a JNOV or, in the alternative, a motion for a new trial. The circuit court neglected to rule on the motion until Bell retained appellate counsel in June 2011. At that time, a hearing on the motion took place and the circuit court denied the motion in its entirety. Bell’s appellate counsel then timely filed a notice of appeal claiming the circuit court erred in its denial of Bell’s motion for a directed verdict and his motion for a JNOV or, in the alternative, a new trial.

DISCUSSION

¶ 6. A motion for a directed verdict and a motion for a JNOV both challenge the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). The Mississippi Supreme Court has noted that in considering the denial of motions for a directed verdict and a JNOV, “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, 448 U.S. 307, 815, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 7. Hence, the underlying question is whether any rational trier of fact could have found, beyond a reasonable doubt, that Bell was guilty of burglarizing the dwelling in question. Mississippi Code Annotated section 97-17-23(1) (Supp.2012) governs burglary and states:

Every person who shall be convicted of breaking and entering the dwelling house or inner door of such dwelling house of another, whether armed with a deadly weapon or not, and whether there shall be at the time some human being in such dwelling house or not, with intent to commit some crime therein, shall be punished by commitment to the custody of the Department of Corrections for not less than three (3) years nor more than twenty-five (25) years.

In sum, the elements of burglary of a dwelling are: “(1) the unlawful breaking and entering of a dwelling; and (2) the intent to commit some crime when entry is attained.” Kirkwood v. State, 52 So.3d 1184, 1187 (¶ 12) (Miss.2011) (citations omitted).

¶ 8. The circuit court noted in its order that the evidence showed that at the time Turner discovered the burglar in the apartment, the front door of the apartment was locked, and there was evidence of forced entry through the apartment’s window. Turner confirmed both of these facts to the responding police officers and testified to the same at the trial. Furthermore, Turner witnessed Bell with her wallet in his hands, and later discovered checks and cash were missing from her purse. Turner’s testimony alone provides ample evidence from which any rational juror could have found beyond a reasonable doubt that Bell was guilty of burglarizing the dwelling in question.

¶ 9. Nonetheless, Bell argues that his identity as the burglar was not proven beyond a reasonable doubt. He claims that because he was thirty-six years old at the time of the burglary, and Turner described the culprit as being approximately eighteen years old, he was misidentified. However, Turner had sufficient time in the apartment with Bell to properly identify him to the authorities and to later recognize him as the culprit. When Bell was arrested, he had the same gold teeth Turner had noted in her description of Bell to the authorities, and he was found at his sister’s apartment, which was located in the same apartment complex where the burglary occurred. We find there was sufficient evidence presented for a rational trier of fact to have found beyond a reasonable doubt that Bell was the burglar. These issues are meritless.

¶ 10. Finally, Bell asserts that the circuit court erred in denying his alternate request for a new trial. “[A] motion for a new trial challenges the weight of the evidence.” 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)). “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.’ ” Id. (quoting Bush, 895 So.2d at 844 (¶ 18)).

¶ 11. As discussed previously, Turner positively identified Bell as the burglar through a photographic lineup shortly after the burglary and again through an in-court identification at trial. Evidence was also presented to the jury that when Bell was arrested, he was at his sister’s apartment, which was located in the same apartment complex where the burglary took place. Furthermore, he was arrested having the same gold teeth that Turner had described in her initial description to responding officers. This evidence negates the notion that the verdict was contrary to the overwhelming weight of the evidence. This issue is without merit.

¶ 12. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE AS A HABITUAL OFFENDER OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: LEE, C.J.,

text:
    James A. MORRIS a/k/a James Allen Morris a/k/a James Morris, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00414-COA.
    Court of Appeals of Mississippi.
    June 18, 2013.
    Rehearing Denied Nov. 12, 2013.
    James A. Morris, appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, C.J., FAIR and JAMES, JJ.'
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. On October 28, 1982, James A. Morris pleaded guilty to the aggravated assault of Emmit Reed, another inmate in custody, by stabbing him with a homemade knife. The Sunflower County Circuit Court found that Morris understood the rights he was waiving by pleading guilty and that the plea was not a result of promise or coercion. The trial court also advised Morris. that the maximum sentence for aggravated assault was twenty-years; however, the trial court followed the recommendation of the State and sentenced Morris to three years in the custody of the Mississippi Department of Corrections (MDOC).

¶ 2. On November 1, 2010, Morris filed a pro se motion to vacate the conviction, arguing that the indictment was flawed and that he was not necessarily the same James A. Morris who was previously convicted and imprisoned in 1982. The trial court dismissed the motion because Morris failed to offer evidence contradicting certified documents identifying him as the James Morris convicted of aggravated assault. On March 13, 2012, Morris filed a motion entitled “Notice of Appeal,” asserting (1) the trial court failed to address his June 6, 2001 motion to amend; (2) “inartful certifications are fraud on the court”; (3) the judgment was statutorily invalid; (4) the transcript was fraud and not properly certified; and (5) the plea agreement, showing that Morris’s plea was knowingly and voluntarily made, was not signed. In its April 5, 2012 order, the trial court stated, “Morris now alleges an invalid indictment, improper certification of the plea transcript, and a plea agreement devoid of his signature. Pursuant to Mississippi Code Annotated [section] 99-39-25 [ (Rev. 2007) ], [Morris] is allowed to proceed in forma pauperis in perfecting his appeal to the Mississippi Supreme Court.” Morris’s subsequent request for appointment of counsel was denied by this Court, and this pro se appeal followed.

STANDARD OF REVIEW

¶ 3. This Court will only reverse a trial court’s dismissal of a petition for post-conviction relief if we find the trial court’s decision was clearly erroneous. Dobbs v. State, 18 So.3d 295, 297 (¶ 6) (Miss.Ct.App.2009). “However, when reviewing issues of law, this Court’s proper standard of review is de novo.” Id.

DISCUSSION

¶ 4. Under the Uniform Post-Conviction Collateral Relief Act (UPCCRA), a petitioner who has pleaded guilty must move for relief “within three (3) years after entry of the judgment of conviction.” Miss.Code Ann. § 99-39-5(2) (Supp.2012). Morris pleaded guilty on October 28, 1982, which was before the UPCCRA was enacted on April 17, 1984. Odom v. State, 483 So.2d 343, 344 (Miss.1986). “Individuals convicted prior to April 17, 1984, have three (3) years from April 17, 1984, to file their petition for post[-]conviction relief.” Id. Therefore, Morris had until April 17, 1987, to file his petition for post-conviction relief. Morris did not file his motion to vacate the conviction until November 1, 2010. ■ He did not appeal the dismissal of the motion until March 13, 2012. And he did not file his “Appeal” and “Supplemental and/or Amended Brief,” which this Court can only take to be his petition for post-conviction relief, until September 4, 2012, over fifteen years after April 17, 1987. As a result, this issue is procedurally barred.

¶ 5. Although Morris’s petition is procedurally barred, if the errors asserted affect his fundamental constitutional rights, those errors are excepted from the procedural bars. Rowland v. State, 42 So.3d 503, 506 (¶ 9) (Miss.2010). However, Morris does not raise any issues affecting his fundamental constitutional rights. Instead, Morris asserts that he was never served with an indictment, which fails to meet one of the waiver exceptions to a guilty plea. See Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989) (When a- defendant pleads guilty he does not waive the right to (1) “claim that he is not the person named in the indictment”, and (2) challenge the indictment for “failure ... to charge a criminal offense or, more specifically, to charge an essential element of a criminal offense.”). He claims that the record and transcript do not support his conviction, yet he waived his right that the prosecution prove every element of the case when he pleaded guilty. Knight v. State, 959 So.2d 598, 608 (¶ 35) (Miss.Ct.App.2007).

¶ 6. Additionally, Morris claims that he was never sentenced in Sunflower County Circuit Court; however, the transcript of the guilty-plea hearing clearly shows that Judge Evans sentenced Morris to three years in the Mississippi State Penitentiary, with the sentence to begin after Morris completed serving his then-current sentence. And lastly, Morris claims that the trial court did not have jurisdiction over his claim because it occurred while he was in MDOC custody. Morris offers no Mississippi law supporting this contention, instead relying on Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), which is inapplicable. “Failure to.cite relevant authority obviates the appellate court’s obligation to review such issues.” Byrom v. State, 863 So.2d 836, 853 (¶ 3.5) (Miss.2003) (citations omitted). Therefore, we affirm.

¶ 7. THE JUDGMENT OF THE SUNFLOWER COUNTY CIRCUIT COURT DISMISSING THE PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

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


author: FAIR, J.,

text:
    Donald Foster ESTES a/k/a Donald Estes a/k/a Donald F. Estes a/k/a Donald Foster Estes Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00823-COA.
    Court of Appeals of Mississippi.
    July 16, 2013.
    Rehearing Denied Oct. 29, 2013.
    See also 120 So.3d 429.

      Donald Foster Estes, appellant, pro se.
    ■ Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. On April 7, .2006, Donald Foster Estes entered the Kroger in Southaven, Mississippi. He approached the pharmacy counter, lifted his shirt to show the pharmacist a toy pistol, and demanded that she give him the painkiller Lortab. She gave Estes the Lortab, and he exited the store.

¶2. Estes was indicted by a DeSoto County grand jury for armed robbery under Mississippi Code Annotated section 97-3-79 (Rev.2006). Estes pleaded guilty and was sentenced to twenty years, with twelve years to serve in the custody of the Mississippi Department of Corrections and eight years of post-release supervision, five of those eight years reporting.

¶3. On March 14, 2012, Estes filed a PCR petition in the DeSoto County Circuit Court. The petition was dismissed on May 8, 2012. Estes now appeals, arguing his counsel was ineffective for: (1) allowing Estes to enter a guilty plea when the State could not prove the elements of armed robbery; (2) failing to move to suppress Estes’s statements; (3) failing to investigate Estes’s case and prepare a defense; and (4) failing to subject the State’s case to meaningful adversarial testing. We will address issues one, three, and four together, as they are related.

STANDARD OF REVIEW

¶ 4. When this Court reviews the trial court’s dismissal of a PCR petition, we “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.” Terry v. State, 755 So.2d 41, 42 (¶ 4) (Miss.Ct.App.1999) (internal quotations omitted). When a defendant pleads guilty, “he must show unprofessional errors of substantial gravity.” The defendant must show his counsel’s conduct “proximately resulted in his guilty plea, and but for counsel’s errors, he would not have entered the plea.” Cole v. State, 918 So.2d 890, 894 (¶ 10) (Miss.Ct.App.2006).

DISCUSSION

¶ 5. To succeed on an ineffective-assistance-of-counsel claim, the petitioner must satisfy the two-pronged test laid out in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Mississippi Supreme Court in Stringer v. State, 454 So.2d 468 (Miss.1984). “First, the defendant must show that counsel’s performance was deficient.... Second, the defendant must show that the deficient performance prejudiced the defense.” Id. at 477 (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052).

1. Deadly Weapon

¶ 6. Estes contends that the State could not prove each element of the armed robbery, and therefore, his counsel was ineffective for allowing him to plead guilty. Specifically, Estes claims that the State could not prove that he put the pharmacist “in fear of immediate injury to his person by the exhibition of a deadly weapon,” because he had a toy pistol and not a “deadly weapon.” Estes also argues that his counsel was ineffective for failing to prepare a defense against the State’s contention that he possessed a deadly weapon, and that because of that failure, the State’s case was not subject to a meaningful adversarial testing.

¶7. When Estes pleaded guilty, he “waive[d] his constitutional right[ ] against self-incrimination, [his right] to confront witnesses, and the requirement to have each element of the offense proved beyond a reasonable doubt.” Bishop v. State, 812 So.2d 934, 945 (¶ 39) (Miss.2002).

¶ 8. The only element of the offense that Estes contends the State could not prove was the requirement of a “deadly weapon.” Relying on Gibby v. State, 744 So.2d 244 (Miss.1999), Estes asserts that because he showed the pharmacist a toy pistol, she could not have “definite knowledge” that a deadly weapon existed. The Mississippi Supreme ■ Court overruled Gibby in Dambrell v. State, 903 So.2d 681, 683 (¶ 6) (Miss.2005), holding that “when a defendant, makes an overt act and a reasonable person would believe that a deadly weapon is present, there is no requirement that a victim must actually see the deadly weapon in order to convict pursuant to ... [section] 97-3-79.”

¶ 9. Furthering the holding of Dambrell, this Court in Lyons v. State, 942 So.2d 247, 250-51 (¶¶ 13-16) (Miss.Ct.App.2006), upheld an armed-robbery conviction where the defendant produced a note saying he had a gun. The Court noted that this was an overt act that led the victim to reasonably believe the defendant did possess a deadly weapon, which satisfied the purposes of section 97-3-79. Additionally, this Court stated in Trammell v. State, 62 So.3d 424, 428-29 (¶¶ 16-17) (Miss.Ct.App.2011), “[t]he fact that [the victim] never saw the weapon [was] of no matter” because the defendant had produced a note saying he had a gun, and the victim testified that she feared for her life.

¶ 10. At the plea hearing, the State asserted it could prove that the pharmacist was “in fear of immediate injury to her person by the exhibition of a deadly weapon, to wit, a gun.” When questioned by the court if Estes disagreed with anything the State claimed it could prove, Estes answered, “No, sir.”

¶ 11. Estes has not shown that his counsel’s performance was deficient, as required under Strickland. Furthermore, he has not shown that his counsel’s allegedly deficient performance “proximately resulted in his guilty plea, and [that] but for counsel’s errors, [he] would not have entered the plea.” Cole, 918 So.2d at 894 (¶ 10). This issue is without merit.

2. Estes’s Statements

¶ 12. Estes argues that his counsel was ineffective for failing to move to suppress his statements because they were not voluntarily given, as he was under the influence of drugs.

¶ 13. This Court has found that “a plea of guilty waives any evidentiary issue.” Jefferson v. State, 855 So.2d 1012, 1014 (¶ 11) (Miss.Ct.App.2003) (citing Bishop v. State, 812 So.2d 934, 945 (¶ 39) (Miss.2002)). This waiver includes his “constitutional rights against self-incrimination.” Bishop, 812 So.2d at 945 (¶ 39).

¶ 14. Estes only makes bare assertions that his statements were involuntary. He offers no argument that but for his counsel’s errors, he would not have entered the plea. This issue is without merit.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY DISMISSING THE PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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

      . On April 9, 2006, Estes robbed the, Walgreen's pharmacy in Olive Branch, Mississippi with the same toy pistol, again demanding Lortab. Estes pleaded guilty to that robbery as well, and the judge ordered Estes’s sentences to run concurrently. On August 10, 2011, Estes filed a petition for post-conviction collateral relief (PCR) relating to that conviction. ‘ The petition was denied on December 6, 2011, which this Court affirmed in Estes v. State, 120 So.3d 429, at 431 (¶ 16) (Miss.Ct.App.2013). Estes's PCR petition in today’s case is nearly identical, with the exception of the statement of the facts (dates of offenses two days apart and names of pharmacies differ). In both PCR petitions, Estes refers to events that took place with the same attorney and at the same plea hearing.


author: GRIFFIS, P.J.,

text:
    Da’Rekus RUSH a/k/a Da’Rekus Deshun Rush a/k/a Da’Rekus De-Shun Rush a/k/a “D” a/k/a “Lil D” a/k/a Darekus D. Rush, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00380-COA.
    Court of Appeals of Mississippi.
    July 16, 2013.
    Rehearing Denied Nov. 5, 2013.

      Da’Rekus Rush, appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Da’rekus Rush appeals the dismissal of his motion for post-conviction collateral relief (“PCCR”). Rush argues that (1) his claim is not barred by the three-year statute of limitations, and (2) his sentence is illegal based on a clerical error. We find no error and affirm.

FACTS

¶ 2. On April 1, 2002, Rush pleaded guilty to burglary of a dwelling under Mississippi Code Annotated section 97-17-23 (Supp.2012). Rush was sentenced to serve ten years in the custody of Mississippi Department of Corrections. The court ordered that Rush be released after he had served one year in prison, with the remainder of his sentence to be suspended until he had completed five years of supervised release.

¶ 3. On April 28, 2004, Rush’s probation was revoked. Rush was ordered to serve the nine years that remained on his prison sentence.

¶ 4. On May 13, 2011, Rush filed his motion where he claimed that he was illegally sentenced because the judge who signed the revocation order was not the same judge who presided over Rush’s probation-revocation hearing. On March 27, 2012, the circuit court dismissed the motion. The court held that it did not have jurisdiction to hear Rush’s motion because it was not timely filed. The court also examined the merits of Rush’s claim and found it had no merit. The court determined that then Circuit Judge Larry Roberts had presided over the hearing and signed the order; the order merely contained a clerical error in the first paragraph that stated Circuit Judge Robert Bailey had presided over the revocation hearing. It is from this order that Rush now appeals.

STANDARD OF REVIEW

¶ 5. We will not reverse a trial court’s dismissal of a PCCR motion unless the trial court’s decision was clearly erroneous. Madden v. State, 75 So.3d 1180, 1131 (¶ 6) (Miss.Ct.App.2011) (citation omitted). When reviewing questions of law, this Court’s standard of review is de novo. Id. (citation omitted).

ANALYSIS

I. Whether Rush’s claim is procedurally barred by the three-year statute of limitations.

¶ 6. Rush argues that his claim is not procedurally barred by the three-year statute of limitations. Mississippi Code Annotated section 99-39-5(2) (Rev.2007) provides that in the case of a guilty plea, a PCCR motion must be made within three years after the entry of the judgment of conviction. The statute of limitations may be waived if there is: (1) an intervening decision by the United States or Mississippi Supreme Court that would have adversely affected the outcome of the ease; (2)exonerating newly discovered evidence; or (3) a claim by the prisoner that his sentence has expired or his conditional release has been unlawfully revoked. Miss.Code Ann. § 99-39-5(2).

¶ 7. Rush’s judgment of conviction was entered on April 1, 2002. The order that revoked his probation was entered on April 28, 2004. Rush’s motion was filed on May 13, 2011. Thus, the motion was filed more than nine years after his conviction and seven years after his probation was revoked. Rush’s motion was not filed within the three-year statute of limitations, and he has not asserted that any of the statutory exceptions apply to his case. Accordingly, we find no merit to this issue. The circuit court was correct to determine that the motion was not timely filed.

II. Whether Rush’s probation revocation was proper.

¶ 8. Notwithstanding the procedural bar, we also address the merits of Rush’s claim. Rush argues that the order that revoked his probation was an illegal order. He claims the judge that presided over his probation-revocation hearing was not the same judge that signed the probation-revocation order. The body of the order states, in pertinent part: “This matter came to be heard in this cause upon Petition for Revocation filed by William Lucy, a Field Officer with the Mississippi Department of Corrections, before Honorable Robert Bailey, Circuit Court Judge.” Yet the order was signed by Circuit Judge Larry Roberts.

¶ 9. In a similar case, this Court held that a sentencing order was not void when it stated a different defendant’s name in the body of the order. Issac v. State, 968 So.2d 951, 956 (¶¶ 16-17) (Miss.Ct.App. 2007). The error was not reversible because it was merely a scrivener’s or clerical error. Id.

¶ 10. The transcript from the hearing clearly states that Circuit Judge Larry Roberts presided over Rush’s probation-revocation hearing. In addition, Judge Roberts also signed the order. Although the order referenced Judge Bailey, it was correctly signed by the judge who heard the case and decided the issues presented. As in Issac, the error in the order is merely a scrivener’s or clerical error. As such, we find no merit to this issue and affirm.

¶11. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

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


text:
    Edward D. FLOWERS a/k/a Edward Dwanye Flowers a/k/a Edward D. Flowers Sr. a/k/a Edward Dwanye Flowers Sr. a/k/a Edward Flowers, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-01234-COA.
    Court of Appeals of Mississippi.
    July 23, 2013.
    Rehearing Denied Nov. 12, 2013.
    Edward D. Flowers, appellant, pro se.

      Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. On July 29, 1999, in the Washington County Circuit Court, Edward D. Flowers pleaded guilty to armed robbery. Flowers timely filed his first motion for post-conviction relief (PCR). The trial court denied relief, and this Court affirmed in Flowers v. State, 805 So.2d 654, 656 (¶ 1) (Miss.Ct.App.2002) (Flowers I). Flowers filed two more PCR motions. Flowers appealed the dismissal of his third PCR motion to this Court. We affirmed the dismissal in Flowers v. State, 978 So.2d 1281, 1283 (¶ 2) (Miss.Ct.App.2008) (Flowers II). Flowers filed two more PCR motions, both of which were dismissed as successive motions, on May 16, 2012, and June 20, 2012, respectively.

¶ 2. Flowers appeals the June 20, 2012 dismissal of his PCR motion, asserting several issues, which we have condensed as follows: (1) his sentence was unconstitutional under Graham v. Florida; and (2) his case should have been transferred to youth court.

STANDARD OF REVIEW

¶ 3. When reviewing a trial court’s denial or dismissal of a PCR motion, we will only disturb the trial court’s factual findings if they are clearly erroneous; however, we review the trial court’s legal conclusions under a de novo standard of review. Hughes v. State, 106 So.3d 836, 838 (¶ 4) (Miss.Ct.App.2012).

DISCUSSION

I. APPLICABILITY OF GRAHAM

¶ 4. Flowers argues that Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), is applicable to his case since he was a juvenile at the time he committed armed robbery. We recognize that Mississippi Code Annotated section 99-39-23(6) (Supp.2012) allows for certain exceptions to the successive-writ bar, including an “intervening decision of the Supreme Court of ... the United States which would have actually adversely affected the outcome of [the PCR movant’s] conviction or sentence.” In Graham, the United States Supreme Court held that life imprisonment without parole for juvenile offenders convicted of nonhomicide crimes violates the Eighth Amendment’s prohibition on cruel and unusual punishments. Graham, 130 S.Ct. at 2034. Although Flowers was a juvenile at the time of his crime, he was not sentenced to life imprisonment. Rather, Flowers was sentenced to twenty years with five years suspended. Thus, the holding in Graham is inapplicable to this case. This issue is without merit.

II. YOUTH COURT

¶ 5. Flowers also argues the trial court abused its discretion in failing to transfer his case to youth court. However, this argument does not fall within the exceptions to the successive-writ bar as listed in section 99-39-23(6). Furthermore, this Court addressed a similar issue in Flowers I and found it to be without merit. Thus, we decline to address this issue.

¶ 6. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

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


author: BARNES, J.,

text:
    Bobby Earl WILSON, Jr., Appellant v. MISSISSIPPI DEPARTMENT OF CORRECTIONS, Appellee.
    No. 2012-CP-00630-COA.
    Court of Appeals of Mississippi.
    July 30, 2013.
    Rehearing Denied Nov. 12, 2013.

      Bobby Earl Wilson Jr., appellant, pro se.
    Office of the Attorney General by R. Stewart Smith Jr., attorney for appellee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   BARNES, J.,

for the Court:

¶ 1. On August 5, 1994, Bobby Earl Wilson Jr. pleaded guilty to auto burglary in the Warren County Circuit Court. He received a suspended sentence of five years and was ordered to serve probation during that five years. Wilson was charged with attempted grand larceny a few months later, and his suspended sentence was revoked on August 8, 1995. He was remanded into the custody of the Mississippi Department of Corrections (MDOC) and received credit for time served in county jail. The notice of criminal disposition dated September 19, 1995, listed his jail-time credit as 118 days. Wilson was discharged from custody on August 1, 1997. Wilson was convicted of bank robbery on December 15, 2004, and his 1994 auto burglary conviction was used to enhance his sentence to life without parole.

¶ 2. In 2010, Wilson requested copies of the sentencing orders, and a notice of criminal disposition dated July 21, 2010, listed his time-served credit as 188 days. Unlike the prior disposition, credit was given for time served prior the entry of his guilty plea for the 1994 conviction. As a result, Wilson filed a complaint regarding the error in computation through the MDOC’s Administrative Remedy Program (ARP). In the “First Step Response” dated November 30, 2010, the MDOC noted that Wilson was no longer serving the sentence and any “credit” he qualified for could not be applied to his new sentence. Thus, his discharge certificate for the 1994 conviction could not be voided. Wilson canceled the ARP complaint at that point.

¶ 3. Wilson filed an “Application for Writ of Habeas Corpus” with the Sunflower County Circuit Court on April 11, 2011, arguing that he was given more credit for time served than he was due. He claims that this error resulted in an early release from custody and deprived him of the opportunity to file a motion for post-conviction relief (PCR) for his 1994 conviction, which would have alleged ineffective assistance of counsel. See Miss.Code Ann. § 99-39-5(2) (Supp.2012) (A petitioner who pleads guilty must file a PCR motion within three years after the entry of the judgment of conviction.). On January 18, 2012, a prehearing conference was held. At the hearing, the circuit court concluded that Wilson’s application was a PCR motion and dismissed it as being time-barred, as it was filed thirteen years after the entry of judgment. The circuit court issued its opinion and order on February 3, 2012.

¶4. In the meantime, Wilson again attempted to pursue the issue through the ARP. A “Second Step Response” form, dated August 5, 2011, stated that Wilson received an in-person interview and was told that a circuit judge would have to issue an amended order to have his file corrected. He was given permission at that point to seek judicial review of the MDOC’s decision. However, . there is nothing in the record to reflect that Wilson submitted his second MDOC ARP review to the circuit court until after the court had issued its opinion and order.

¶ 5. Wilson filed a motion to reconsider the Sunflower County Circuit Court’s judgment, arguing his application for writ was not a PCR motion, as he was not attacking his conviction or sentence; rather, he was merely trying to have his computation of time corrected through the ARP. The circuit court denied the motion, noting that Wilson was required to seek judicial review of an ARP decision within thirty days and that Wilson filed his application for writ four months after the MDOC’s November 30, 2010 decision. The circuit court subsequently reiterated this holding in its denial of Wilson’s “Motion for Relief from Opinions and Orders” that he filed on June 20, 2012. The circuit court also noted in the order dated July 6, 2012, that Wilson had already been allowed to proceed with his appeal to the Mississippi Supreme Court bn June 5, 2012. Wilson also filed a motion to amend the record on July 10, 2012, which was denied.

¶ 6. Wilson appeals the circuit court’s dismissal of his motions. Upon review, we find no error and affirm.

STANDARD OF REVIEW

¶ 7. A circuit court’s dismissal of a PCR motion will not be disturbed on appeal “unless the decision is clearly erroneous.” Watson v. State, 100 So.3d 1034, 1036 (¶ 3) (Miss.Ct.App.2012) (citing Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004)). “For issues involving questions of law, the applicable standard of review is de novo.” Id.

DISCUSSION

I. Whether the circuit court erred in treating Wilson’s petition for writ of habeas corpus as a PCR motion.

¶ 8. Wilson contends that the circuit court erred in treating his application for writ as a PCR motion. This argument is based on his claim that he tried to obtain administrative review of whether the computation of his jail-time credit was erroneous. Wilson is correct in one respect: issues concerning the MDOC’s computation of a prisoner’s sentence are to be addressed through the MDOC’s administrative-review process. See Guy v. State, 915 So.2d 508, 510 (¶ 5) (Miss.Ct.App.2005). However, it is evident from the pleadings that Wilson’s argument — that his time was erroneously computed — is merely an attempt to assert his claim that the computation error prevented him from attacking his 1994 conviction and sentence through post-conviction relief proceedings. Accordingly, we find no error in the circuit court treating Wilson’s application as a PCR motion.

II. Whether the circuit court erred in dismissing Wilson’s PCR motion.

¶ 9. In dismissing Wilson’s motion, the circuit judge stated:

Um-hum. Well I’m going to agree with the State. The time has run on it. Even in the earlier trial where you said — when they were relying on and introduced into' evidence the auto burglary conviction, that was again another opportunity to raise that issue, but this many years after it, I’m afraid the time has run on that.

Mississippi Code Annotated section 99-39-5(2) provides a three-year statute of limitations for the filing of a PCR motion, barring exceptions, none of which apply to Wilson’s motion. We find no error in the circuit court’s holding that Wilson’s motion was untimely filed and procedurally barred. Wilson pleaded guilty in 1994; his motion was filed thirteen years later.

¶ 10. Wilson previously brought this argument — that the computation error caused him to be released before he could file a timely PCR motion — before this Court in Wilson v. State, 76 So.3d 733 (Miss.Ct.App.2011), and we found no merit to his claim. In that case, Wilson had filed a “Motion to Amend Petition for a Writ of Coram Nobis” with the Warren County-Circuit Court, where the 1994 auto-burglary conviction originated. As some of our analysis in that case is applicable to the present appeal, we reiterate our holding:

Wilson contends that he received credit for time served in the county jail to which he was hot entitled; therefore, he was released from custody before he could seek post-conviction relief from the 1994 conviction.
It is clear from the record that Wilson has attempted to challenge his 1994 conviction in an effort to invalidate his life sentence. However, Wilson lacks standing to challenge the 1994 conviction because he is no longer incarcerated or on parole or probation for that conviction. Because Wilson lacks standing to bring his motion, this Court need not address the merits of Wilson’s claims that he received ineffective assistance of counsel and that his guilty plea was involuntary.

Id. at 736 (¶¶ 12-13).

¶ 11. Accordingly, we find the circuit court did not err in dismissing Wilson’s PCR motion. Additionally, since Wilson has filed multiple PCR motions, his motion is also barred as a successive writ. See Miss.Code Ann. § 99-39-23(6) (Supp.2012). Wilson’s remaining issues concerning his PCR motion and his subsequent motions to reconsider the judgment and amend the record are rendered moot by our decision.

1112. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

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

      . Although the conviction originated in Warren County, Mississippi, Wilson filed the petition for writ for habeas corpus in Sunflower County where he is currently in custody.

      . See also Wilson v. State, 990 So.2d 828, 829-30 (¶¶ 2, 6-7) (Miss.Ct.App.2008) (affirming the circuit court’s dismissal due to Wilson's PCR motion being time-barred and additionally finding that Wilson lacked standing to challenge his 1994 conviction since he was no longer in custody for the conviction).


author: CARLTON, J.,

text:
    Claudia Joan Hill RENFRO, Appellant v. John Malcolm RENFRO, Appellee.
    No. 2012-CA-00616-COA.
    Court of Appeals of Mississippi.
    July 30, 2013.
    Rehearing Denied Nov. 5, 2013.

      Luther Putnam Crull Jr., attorney for appellant.
    Sabrina D. Howell, Kathi Crestman Wilson, Grenada, A.E. (Rusty) Harlow Jr., attorneys for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. On April 4, 2012, the Grenada County Chancery Court entered a judgment of divorce on the ground of adultery for Claudia Joan Hill Renfro and John Malcolm Renfro (“Johnny”). In the judgment of divorce, the chancellor awarded each party one-half of the total of all of the marital property, both real and personal. Claudia now appeals, claiming that the chancellor erred in determining that certain real property at issue constituted marital property. Finding error in the chancellor’s judgment, we reverse and remand.

FACTS

¶ 2. Claudia and Johnny married on August 20, 1987. The marriage produced no children. The parties separated on January 22, 2011, after Claudia discovered that Johnny engaged in an affair with their neighbor, Karen James.

¶ 3. At a trial held on February 17, 2012, Johnny and Karen admitted that they were living together and engaging in adultery. Johnny admitted that he made no effort to hide his affair with Karen from Claudia. Johnny testified that his and Karen’s affair began “about forty years” prior to the trial. Johnny and Claudia also testified regarding their marital property.

¶4. After the trial, the chancellor requested the parties to submit their proposed findings of fact and conclusions of law. On March 23, 2012, the court filed its opinion, and on April 4, 2012, entered its final judgment granting Claudia a divorce from Johnny on the ground of uncondoned adultery.

¶ 5. The chancellor also equitably distributed the marital property. In her judgment, the chancellor listed the following property as marital property: the marital residence, two automobiles, a 401 (k) through Claudia’s employment, a certificate of deposit with Renasant Bank with a value of $28,538.32, a certificate of deposit with State Farm Bank valued at $33,252.32, and the cash value of New York Life Insurance in the amount of $21,131.60. The chancellor further stated that during the course of the marriage, Claudia received a conveyance of property from her mother, approximately 140 acres of unimproved land. Based on the testimony, the chancellor determined that this property constituted marital property. In reaching this determination, the chancellor stated in her final judgment that Claudia “indicated that the development and management of the property as a tree farm was for the purpose of providing income for the parties’ retirement,” thus changing the normally nonmarital character of the property. The chancellor then found the total value of all marital property, both real and personal, amounted to $580,200.7, and she awarded fifty percent of this amount to each party.

¶ 6. Claudia filed her appeal from the April 4, 2012 judgment on April 11, 2012, arguing that the chancellor erroneously classified the 140 acres as marital property-

STANDARD OF REVIEW

¶ 7. In domestic-relations matters, “[c]hancellors are afforded wide latitude in fashioning equitable remedies,” and this Court will not reverse their decisions “if the findings of fact are supported by substantial credible evidence in the record.” Henderson v. Henderson, 757 So.2d 285, 289 (¶ 19) (Miss.2000). A chancellor’s factual findings will not be reversed unless the chancellor’s decision was manifestly wrong or clearly erroneous, or the chancellor applied an improper legal standard. Wallace v. Wallace, 12 So.3d 572, 575 (¶ 12) (Miss.Ct.App.2009). When reviewing a chancellor’s interpretation and application of the law, our standard of review is de novo. Tucker v. Prisock, 791 So.2d 190, 192 (¶ 10) (Miss.2001).

DISCUSSION

¶ 8. Claudia argues that the chancellor improperly classified the 140 acres of real property as marital property. Claudia specifically asserts that the chancellor misstated Claudia’s testimony in her. opinion. Alternatively, Claudia argues that in the event this Court finds that the chancellor did not err in classifying the 140 acres as marital property, then the chancellor committed error in her award of fifty percent of the marital assets to each party, claiming that such an award fails to constitute a fair and equitable division of the marital assets.

¶ 9. In her judgment, the chancellor stated:

The testimony and evidence is substantial that the management of the property, including its enrollment in government programs, planting of trees, leasing for hunting purposes, construction of gates and roads, spraying and paying of taxes was solely at the control of [Johnny]. Further, and perhaps most importantly, [Claudia] indicated that the development and management of the property as a tree farm was for the purposes of providing income for the parties’ retirement. As such, the court finds that the normally nón-mari-tal character of the property was changed by ■ the family[-]use doctrine, Allgood [v.] Allgood, 62 So.3d 443 (Miss.[Ct.]App.2011), as well as by conversion by implied gift, Allgood, supra, such that the property lost its non-marital nature and now must be considered marital property subject to equitable distribution.

Claudia argues that the chancellor misstated her testimony, citing to her cross-examination testimony where she clarified that she and Johnny had not discussed that the tree farm would provide income for their retirement plan.

¶ 10. In Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994), the Mississippi Supreme Court defined marital property for the purpose of divorce as:

Any and all property acquired or accumulated during the marriage. Assets so acquired or accumulated during the course of the marriage are marital assets and are subject to an equitable distribution by the chancellor. We assume for divorce purposes that the contributions and efforts of the marital partners, whether economic, domestic or otherwise[,] are of equal value.

We recognize that not all property acquired during the course of a marriage is “marital”; assets attributable to a party’s separate estate prior to marriage are considered nonmarital property not subject to equitable distribution. Hankins v. Hankins, 866 So.2d 508, 511 (¶ 13) (Miss.Ct.App.2004) (citing Hemsley, 639 So.2d at 914). The supreme court has explained that non-marital assets may lose their status as such if the party commingles the asset with marital property or uses the assets for the benefit of the family. Johnson v. Johnson, 650 So.2d 1281, 1286 (Miss.1994). Additionally, with regard to marital property, we acknowledge that equitable division does not mean equal division. Seymour v. Seymour, 960 So.2d 513, 519 (¶ 15) (Miss.Ct.App.2006).

¶ 11. Claudia cites to Ory v. Ory, 936 So.2d 405, 411 (¶ 15) (Miss.Ct.App.2006), where this Court found no 'error in the chancellor’s determination that a parcel of land was a nonmarital asset. This Court acknowledged that the parcel belonged to the separate estate of Sharon, the appel-lee, separate estate prior to marriage, and explained that for the appellant, Alan, to have any interest in the property, it could only come through the commingling doctrine. Id. Testimony at trial reflected that Alan “cleared a portion of the land, hauled dirt onto the property, ... had a large number of seedlings planted on the property,” and made some efforts to improve the land, but this Court held that the testimony was unclear as to what extent his efforts improved the land. Id. The Ory Court also held that Alan failed to “put forth sufficient evidence to prove that his activity was so pervasive as to convert the entire seventy-five-acre parcel into a marital asset, or show how the land increased in value during his marriage to Sharon.” Id.

¶ 12. Similarly, in Hankins v. Hankins, 729 So.2d 1283, 1286-87 (¶ 15) (Miss.1999), the supreme court found that although the appellant, Charlie, planted trees on land that the appellee, Sherry, inherited from her grandfather, no testimony existed showing “the value of the trees, the extent of the planting, or that there was any agreement between Charlie and Sherry that Charlie’s act of planting the trees would thereby give him an interest in the property.” The supreme court affirmed the chancellor’s finding that “Sherry’s property retained its character as an inheritance not subject to equitable distribution.” Id. at 1287 (¶ 15).

¶ 13. Here, the record shows that Johnny testified that the property “was going to be [his and Claudia’s] retirement plan.” He testified that he went out to the property, and “had it sprayed[,] ... had it planted, [and] had the dozer work around it.” He stated that he put up a gate and then leased the property or hunting rights to pay the taxes. Johnny testified that he had been to the property about fifteen times since Claudia inherited it, but he admitted he had not been to the property in the past year and a half.

¶ 14. Claudia testified that while married to Johnny, she inherited the 140 acres at issue from her mother. Claudia’s mother deeded her the property in December 2007. She also testified that her two nephews leased the hunting rights to the land. The nephews made their lease payments to Johnny, who paid the taxes on the land. Claudia testified that she had never used the land for any family purposes — there was no four-wheel riding, no cabins were built, and there were no picnics. Claudia explained that since she is a female and the record titleholder to the property, she thus received financial assistance from the county to plant trees on the property. When asked during her testimony whether she and Johnny had discussed that the trees would “come to fruition” around their retirement age, Claudia responded “I’m afraid not,” clarifying that she and Johnny had not discussed any intention or plan to use any potential future income for retirement. As stated, based upon this testimony, Claudia argues on appeal that the chancellor misstated her testimony as a basis for the chancellor’s opinion, and therefore the chancellor’s decision lacked supporting evidence.

¶ 15. Upon review, this Court will not reverse a chancellor’s decision “if the findings of fact are supported by substantial credible evidence in the record.” Henderson, 757 So.2d at 289 (¶ 19). Here, the record reflects that the chancellor based her determination that this inherited property constituted marital property upon her finding that “the management of the property, including its enrollment in government programs, planting of trees, leasing for hunting purposes, construction of gates and roads, spraying and paying of taxes was solely at the control of [Johnny].” The chancellor stated that the evidence she found most important was Claudia’s testimony “indicating] that the development and management of the property as a tree farm was for the purpose of providing income for the parties’ retirement.”

¶ 16. However, our review of the record reflects that the Renfros were married almost twenty-five years. As acknowledged, in December 2007, Claudia’s mother deeded the property to her, and Claudia and Johnny separated around three years later, in January 2011. During this time, Claudia’s family members paid to lease the hunting rights, and Johnny used this money to pay the taxes on the property. Additionally, the record reflects that Johnny, and not Claudia, provided the testimony that the tree farm was intended to provide income for the parties’ retirement. Claudia testified that she and Johnny never discussed using the income from the tree farm for retirement purposes. Johnny’s testimony asserting an intended future use as retirement income, considered in isolation, fails to provide evidence of commingling or marital use, because the future event had yet to come to fruition. We also find error in the chancellor’s determination that Johnny’s actions of enrolling the land in government programs, planting trees, leasing the land for hunting purposes, constructing gates and roads, spraying the land, and paying taxes on the property constituted sufficient evidence to convert the land into a marital asset. See Hankins, 729 So.2d at 1286-87 (¶ 15); Ory, 936 So.2d at 411 (¶ 15). This Court has held that property-tax payments are traceable and do not transmute separate property into marital property. Brock v. Brock, 906 So.2d 879, 888 (¶ 50) (Miss.Ct.App.2005) (quotation omitted) (“[T]he key to determining when there has been transmutation [from separate property to marital property] by commingling is whether the marital interests can be identified, i.e., can be traced.”). We also find no evidence submitted by Johnny to show how the land increased in value during his marriage to Claudia, or that an agreement existed between Claudia and Johnny that Johnny’s actions of managing the land would give him an interest in the property.

¶ 17. As acknowledged, nonmarital assets may lose their status as such if the party commingles the asset with marital property or uses the assets for the benefit of the family. Johnson, 650 So.2d at 1286. However, Claudia testified that she and Johnny never used the land for any family purposes. Significant to our analysis, we recognize that in the recent and similar case of Marter v. Marter, 95 So.3d 733, 737-38 (¶¶ 14-16) (Miss.Ct.App.2012), this Court held that evidence that the husband maintained the property inherited by the wife, paid the property taxes, and planted some trees on the property did not convert the property to marital property by virtue of commingling.

¶ 18. Accordingly, we find the chancellor erred in classifying the 140 acres as marital property. The record fails to show that the real property at issue was converted to marital property through the family-use doctrine, since the property was not used for a family purpose. Additionally, Johnny’s testimony only showed a potential intended purpose for the property in the future. See Deborah H. Bell, Bell on Mississippi Family Law § 6.04 (2005). The record also fails to contain evidence that Claudia commingled the property or used it as collateral for family purposes. See Bell, § 6.04[2], Also, insufficient evidence exists in the record to show that Johnny contributed anything of significance to the improvement of the property. The record shows little, if any, contribution by Johnny, and shows that Claudia owned the property for only three years while she cohabited with Johnny. For the foregoing reasons we reverse the judgment of the chancery court on the matter of equitable division of the property — specifically, the classification of the 140 acres as marital property — and remand to that court for further proceedings consistent with this opinion.

¶ 19. THE JUDGMENT OF THE GRENADA COUNTY CHANCERY COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS AND FAIR, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT. JAMES, J., NOT PARTICIPATING.

      . Claudia also testified that Johnny physically abused her, and she detailed one particular violent incident that resulted in her going to the emergency room and missing eight weeks of work.

      . The record reflects that the real property measured at 140.4 acres.

      . The record reflects that on April 12, 2012, Johnny filed a motion to alter or amend the decree, referring to a clerical error in the judgment where the chancellor made reference to Claudia receiving a certificate of deposit in the amount of $28,538.82 issued by State Farm Bank, when the actual issuer of the CD was Renasant Bank. The chancellor acknowledged the clerical error and filed an amended judgment on June 12, 2012, correcting the error by changing State Farm Bank to Renasant Bank.


author: CARLTON, J„

text:
    Steven EDMONDS a/k/a Steven Michael Edmonds a/k/a Steven M. Edmonds a/k/a Steve Edmonds, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00733-COA.
    Court of Appeals of Mississippi.
    Aug. 27, 2013.
    Rehearing Denied Nov. 12, 2013.

      George T. Holmes, Jackson, Mollie Marie. McMillin, Stacey Alan Spriggs, attorneys for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.

      Before IRVING, P.J., CARLTON and JAMES, JJ.
   CARLTON, J„

for the Court:

¶ 1. A DeSoto County grand jury indicted Steven Edmonds on the following charges: conspiracy to manufacture methamphetamine (Count I) and manufacture of a controlled substance (Count II). Following a jury trial on January 23, 2012, Edmonds was convicted of the conspiracy in Count I. The trial court sentenced him to serve fifteen years in the custody of the Mississippi Department of Corrections (MDOC), with five years of post-release supervision. The trial court also ordered Edmonds to pay a fine of $5,000. Ed-monds now appeals, claiming that the State failed to prove the essential elements of the crime charged in the indictment and that the jury’s verdict is against the overwhelming weight of the evidence.

¶ 2. Since the jury convicted Edmonds of conspiracy to manufacture methamphetamine, as set forth in Count I of the indictment, we focus our appellate review upon this offense.

FACTS

¶ 3. DeSoto County Sheriffs Department Investigator Danny Wilkey testified that on January 28, 2010, he worked surveillance on Apartment 7B of the Azalea Ridge Apartments in Walls, Mississippi, based on information the sheriffs department received about a possible methamphetamine lab at that location. During the surveillance, Investigator Wilkey, along with Lieutenant Jason Mitchell and Agent Joseph Force, observed Edmonds walk out of the apartment to a white truck. When the officers approached Edmonds, they immediately smelled a strong chemical odor on Edmonds’s body.

¶ 4. Edmonds informed the officers that other people were inside the apartment, and the officers walked to the door of the apartment, which was still open. Through the open door, the officers smelled a strong, chemical odor and observed items related to the manufacture of methamphetamine, including lighter fluid, aluminum foil, and coffee filters. The officers entered the apartment, and found Tracey Cayer and Christopher Albritton asleep in a bed in one of the bedrooms. Concerned about contamination of the apartment due to the manufacturing process of the methamphetamine, the officers took Cayer and Albritton out of the apartment and brought them to the hospital for decontamination.

¶ 5. In the bedroom, Investigator Wilkey noticed an open duffle bag containing various items. Based on their observations inside of the apartment, the officers removed everyone from the apartment, secured it, and obtained a search warrant, which included permission to search Ed-monds’s truck and Albritton’s truck.

¶ 6. A further search of the bedroom revealed a white plastic container with 156 dosage units of pseudoephedrine, the main ingredient for making methamphetamine. In the duffle bag, the officers also found a coffee maker than had been cut in half to make a hot plate, along with bottles that had some sort of residue in them, digital scales, gloves, baggies, and a hair dryer. Investigator Wilkey testified that these items are used to manufacture methamphetamine. Edmonds admitted that the duffle bag belonged to him. The bedroom also contained a pressurized container marked “oxygen,” and more coffee filters. The officers searched Cayer’s purse and found lithium batteries and pills, including one red pill matching the pseudoephedrine found in the white container in the bedroom.

¶ 7. Edmonds’s truck contained a black garbage bag in which the officers found funnels, hydrogen peroxide, salt, a bottle containing ammonium nitrate, a bottle containing a petroleum productysolvent, sulfuric acid, and coffee filters — all of which are critical to the manufacturing of methamphetamine. The officers also found a pressurized container wrapped in electrical tape. In Albritton’s truck, Investigator Wilkey found a receipt for pseudoephed-rine from Walgreens in Hernando, Mississippi.

¶ 8. When questioned, Edmonds stated that no methamphetamine lab existed in the apartment, but he did admit that the apartment contained items that could be used to make methamphetamine. Ed-monds testified that the items in the apartment belonged to him, and he admitted that he went by the apartment that morning to pick up the ingredients and tools to go to a house in Horn Lake, Mississippi, to cook the methamphetamine. When he arrived at the apartment^ Edmonds testified that Gayer and Albritton were asleep in the bed, and that neither Cayer nor Albrit-ton knew that Edmonds would be at the apartment that day. Edmonds explained that he had stayed in that apartment before, and he stored his items there. Ed-monds claimed that he did not know that Cayer’s purse contained pseudoephedrine and batteries, or that Albritton had been gathering pseudoephedrine pills.

¶ 9. A jury trial was held on January 23, 2012. At the close of the State’s case, Edmonds made a motion for a directed verdict regarding Count II of the indictment, manufacturing methamphetamine, which the trial court granted. Edmonds made a separate motion for a directed verdict regarding Count I, conspiracy to manufacture methamphetamine, which the trial court denied. The jury ultimately convicted Edmonds of conspiracy .to manufacture methamphetamine. The trial court sentenced him to fifteen years in the custody of the MDOC, with five years of post-release supervision. The trial court also ordered Edmonds to pay a fine of $5,000.

1Í10. Edmonds now appeals, arguing that the State failed to prove the essential elements of the crime charged in the indictment and that the jury’s verdict is against the overwhelming weight of the evidence. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 11. In Jerninghan v. State, 910 So.2d 748, 751 (¶ 6) (Miss.Ct.App.2005), this Court recognized that

[mjotions for directed verdict and judgment notwithstanding the verdict ... challenge the legal sufficiency of the evidence presented at trial, and the standard of review for the denial of each is the same. The standard of review is as follows: all evidence supporting a guilty verdict is accepted as true, and the prosecution must be given the benefit of all reasonable inferences that can be reasonably drawn from the evidence.

(Internal citations omitted).

¶ 12. The Mississippi Supreme Court has clarified that once the jury has returned a guilty verdict, neither - the trial court nor appellate court is at liberty to direct that the defendant be found not guilty unless, viewed in the light most favorable to the verdict, “no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was guilty.” Conners v. State, 822 So.2d 290, 293 (¶ 6) (Miss.Ct.App.2001).

¶ 13. A motion for a new trial goes to the weight of the evidence. Woodard v. State, 765 So.2d 573, 576 (¶ 16) (Miss.Ct.App,2000). When determining whether the verdict was against the overwhelming weight of the evidence, we view all evidence in the light most favorable to the jury verdict, and we will not overturn the verdict unless we find that the trial court abused its discretion when it denied the motion. Id. (citations omitted). Additionally, “the decision of whether or not to grant a motion for a new trial rests in the sound discretion of the trial judge,” and the motion “should only be granted when the judge is certain that the verdict is so contrary to the overwhelming weight of the evidence that failure to grant the motion would result in an unconscionable injustice.” Id. Utilizing this standard of review, we review the weight of the evidence in this case with respect to the convicted offense of conspiracy to manufacture methamphetamine of which Edmonds was convicted.

DISCUSSION

¶ 14. Edmonds challenges the sufficiency of the evidence against him and asserts that the trial court erred by failing to grant his motion for a directed verdict on the conspiracy charge. Edmonds claims that the State failed to present sufficient evidence that he conspired with Cayer and Albritton to manufacture methamphetamine.

¶ 15. Mississippi Code Annotated section 97 — 1—1 (l)(a) (Supp.2012) defines conspiracy as “two ... or more persons conspiring] ... [t]o commit a crime.” The supreme court has established that “[a] conspiracy is a completed offense, requiring proof of no overt act done in pursuance thereof.” Ford v. State, 546 So.2d 686, 688 (Miss.1989) (citations omitted). Conspiracy requires the “union of the minds” of the conspirators. Flanagan v. State, 605 So.2d 753, 757 (Miss.1992) (quoting Moore v. State, 290 So.2d 603, 604 (Miss.1974)). Each conspirator “must intend a common plan and know its common purpose.” Ford, 546 So.2d at 688 (citing McCray v. State, 486 So.2d 1247, 1251 (Miss.1986)). The agreement to commit the criminal act “need not be formal or express, but may be inferred from the circumstances, particularly by declarations, acts, and conduct of the alleged conspirators.” Id.; see Ladd v. State, 87 So.3d 1108, 1113 (¶ 13) (Miss.Ct.App.2012).

¶ 16. Here, Edmonds claims that the State presented no proof of a “union of the minds” between Edmonds, Cayer, and Albritton. Edmonds asserts that the only evidence that they acted in concert to manufacture methamphetamine was their presence in the apartment. When reviewing the legal sufficiency of evidence, we must consider the evidence “in the light most favorable to the prosecution.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quotation omitted). 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,’ ” the appellate court will uphold the verdict. Id. .(quotation omitted). However, where the evidence “ ‘point[s] in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could, not have found beyond a reasonable doubt that the defendant was guilty,’ the proper remedy is for the appellate court to reverse and render.” Id. (citing Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶ 17. Edmonds admitted at trial that he intended to cook methamphetamine and that he gathered the pseudoephedrine pills from other people who use methamphetamine. The State argues that a reasonable inference arises that Edmonds had entered into a conspiracy — whether formal or express, or inferred from circumstances, declarations, acts, or conduct— with Cayer and Albritton to manufacture methamphetamine. See Ford, 546 So.2d at 688 (citation omitted). The record reflects that the officers found Cayer and Albritton in the apartment with Edmonds on January 8, 2010. Testimony at trial revealed that Albritton had previously asked Brandy Young to purchase pseudoephedrine for him on various occasions. The officers also found equipment and supplies used to manufacture methamphetamine in the bedroom where Cayer and Albritton were sleeping. As a result, the State submits that sufficient evidence exists such that a reasonable juror could have found that Edmonds conspired with Albritton and Cayer to manufacture methamphetamine.

¶ 18. Alternatively, Edmonds also argues that his conviction is against the overwhelming weight of the evidence, and thus the trial court erred in denying his motion for a new trial. He submits that if this Court finds that the State presented sufficient evidence for a jury to consider his guilt of conspiracy to manufacture methamphetamine, then the verdict should not stand because the evidence weighs in his favor.

¶ 19. When determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence that supports the verdict. We will reverse only when convinced that the trial court has abused its discretion in failing to grant a new trial, and allowing the verdict to stand would sanction an unconscionable injustice. Montana v. State, 822 So.2d 954, 967-68 (¶ 61) (Miss.2002).

¶20. Although Edmonds admitted to possessing the precursers to make methamphetamine, he denies any agreement or plan to cook methamphetamine with Cayer and Albritton. Edmonds claims that the State’s evidence at trial did not effectively rebut his testimony that he acted alone. However, the State again references the relevant facts presented to the jury regarding evidence of a conspiracy between Edmonds, Albritton, and Cayer. In the bedroom where Cayer and Albritton were sleeping, the police officers. found: 156 dosage units of pseudoephedrine; a duffle bag, which Edmonds claimed belonged to him, containing a coffee pot cut in half to make a hot plate, digital scales, gloves, baggies, and a hair dryer; and a pressurized oxygen container. Cayer’s purse contained lithium batteries and pills, including one red pill matching the pseudoephedrine found in .the bedroom. In Albritton’s truck, the police officers found a receipt for the purchase of pseudoephedrine, and Young testified at trial that she had previously bought pseudoephedrine for Albrit-ton. Edmonds also admitted that he had intended to manufacture methamphetamine.

¶ 21. After reviewing the record, and in viewing the evidence presented at trial in the light most favorable to the verdict, we find that the verdict is not against the overwhelming weight of the evidence. See Woodard, 765 So.2d at 576 (¶ 16). Additionally, we find that sufficient evidence existed to support Edmonds’s conviction for conspiracy to manufacture methamphetamine. See Jerninghan, 910 So.2d at 751 (¶ 6). Accordingly, we affirm the judgment of the trial court.

¶ 22. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT OF CONVICTION OF CONSPIRACY TO MANUFACTURE METHAMPHETAMINE AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS OF POST-RELEASE SUPERVISION, AND TO PAY A $5,000 FINE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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