author: ISHEE, J.,

text:
    JOHNSON TRUCKING COMPANY, Appellant v. PETERBILT OF MISSISSIPPI, INC. a/k/a Peterbilt Truck Center of Jackson, LLC and Caterpillar, Inc., Appellees.
    No. 2012-CA-01908-COA.
    Court of Appeals of Mississippi.
    May 20, 2014.
    Rehearing Denied Aug. 5, 2014.
    Certiorari Denied Oct. 23, 2014.

      Matthew Warren Kitchens, John W. Kitchens, attorneys for appellant.
    David Aaron Norris, Jackson, Lawrence Murray Coco III, Ridgeland, Stephen Friedrich Schelver, attorneys for appel-lees.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. This case stems from a defective-product action that was filed in the Rankin County Circuit Court on April 29, 2011, by Johnson Trucking Company against Peter-bilt Truck Center of Jackson LLC and Caterpillar Inc. In its complaint, Johnson Trucking alleged causes of action for tor-tious breach of contract, breach of warranty, breach of fiduciary duties, and fraud in the inducement relating to its purchase of a truck from Peterbilt that contained a Caterpillar engine.

¶ 2. After filing an answer to Johnson Trucking’s complaint, both Peterbilt and Caterpillar filed motions for summary judgment, asserting that Johnson Trucking’s claims were barred by the applicable statutes of limitations. The motions were granted. Johnson Trucking filed a motion for reconsideration, which was denied. Johnson Trucking now appeals. Finding error, we reverse the circuit court’s judgment and remand the case for a new trial consistent with this opinion.

STATEMENT OF FACTS

¶ 3. On September 29, 2004, Johnson .Trucking purchased from Peterbilt a 2005 model truck containing a Caterpillar C15 engine. In connection with the purchase of the truck, Johnson Trucking also purchased “On-Highway Vehicle Engine Extended Service Coverage” (extended-service coverage), which provided for any necessary repairs or replacement of the Caterpillar engine with limits of thirty-six months and 300,000 miles. On September 28, 2005, Johnson Trucking extended its coverage to limits of seventy-two months and 700,000 miles.

¶ 4. Approximately three months after the purchase of the truck, oil began blowing out from under the engine and the dipstick area, causing the dipstick to come out of the engine. Johnson Trucking initially took the truck to Peterbilt for repairs, but was referred to Caterpillar. Caterpillar advised Johnson Trucking that the truck would need to be repaired, which included putting in a new “kit.” It took approximately three months for the kit to come in and the repairs to be made. Caterpillar informed Johnson Trucking that the engine needed replacing or overhauling, but advised that the mileage was too low, and that Caterpillar could not approve such work.

¶ 5. Johnson Trucking continued to experience the same problem and returned the truck for repairs approximately every two months thereafter. Johnson Trucking contends that each time, Caterpillar undertook the repairs and represented that the problem was fixed. In March 2010, Peter-bilt advised Johnson Trucking that no further repairs would be made pursuant to the extended-service coverage. Caterpillar requested that Johnson Trucking leave the truck with Caterpillar so additional work could be performed on the engine. ¶ 6. On August 4, 2010, Johnson Trucking contacted Caterpillar regarding the matter. On August 24, 2010, Caterpillar requested permission to have the truck’s piston pack shipped to Caterpillar for testing. The piston pack was shipped for testing on October 22, 2010. Johnson Trucking made status requests in November 2010 and January 2011. Caterpillar responded in January 2011 that the matter was being reviewed. On February 6, 2011, Caterpillar advised Johnson Trucking that “destructive testing” would need to be performed on the equipment. Subsequently, a “Protocol for Destructive Testing & Inspection” was executed. The testing was not performed, however, and the equipment remains in Caterpillar’s possession.

¶ 7. On April 29, 2011, Johnson Trucking filed its complaint against Peterbilt and Caterpillar in the circuit court. Prior to the parties conducting discovery, Peter-bilt and Caterpillar filed motions for summary judgment asserting that Johnson Trucking’s claims were barred by the applicable statutes of limitations. On August 13, 2012, the motions were granted, and the case was dismissed. Johnson Trucking filed a motion for reconsideration, which was denied. Aggrieved, Johnson Trucking now appeals.

DISCUSSION

¶ 8. The standard of review of a trial court’s grant or denial of a motion for summary judgment is de novo. Miles v. Paul Moak of Ridgeland, Inc., 113 So.3d 580, 584 (¶ 8) (Miss.Ct.App.2012) (citation omitted). Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c).

¶ 9. Johnson Trucking argues that the circuit court erred in granting summary judgment in favor of Peterbilt and Caterpillar. In granting summary judgment, the circuit court found that Johnson Trucking’s claims were barred by the statutes of limitations. Johnson Trucking contends that genuine issues of material fact exist regarding whether its various claims are barred by the applicable statutes of limitations. We agree.

¶ 10. There is no dispute as to the applicable statute of limitations for Johnson Trucking’s tort-based claims. The statute of limitations for claims for tortious breach of contract, breach of fiduciary duties, and fraud in the inducement is three years, pursuant to Mississippi Code Annotated section 15-1-49(1) (Rev.2012). This statute provides in pertinent part that, for “actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.” Miss. Code Ann. § 15-1-49(2) (Rev.2012).

¶ 11. A claim for breach of warranty generally has a limitation period of six years, as set forth in Mississippi Code Annotated section 75-2-725(1) (Rev.2002). This breach “occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.” Miss.Code Ann. § 75-2-725(2) (Rev.2002). The issue here is when Johnson Trucking’s claims had accrued.

¶ 12. First, there is a dispute between the parties as to when the extended-service coverage took effect. Peterbilt and Caterpillar contend that the extended-service coverage took effect on September 29, 2004, when the original-coverage contract was purchased with the truck. Johnson Trucking argues the extended-service coverage did not go into effect until a year later when the coverage was upgraded on September 28, 2005. Peterbilt and Caterpillar assert that, even if the coverage did not go into effect until 2005, any claim stemming from the extended-service coverage as it pertains to the general three-year statute of limitations was barred on September 28, 2008.

¶ 13. Johnson Trucking, however, argues that Peterbilt and Caterpillar gave no indication until March 2010 that the extended-service coverage would not be honored. Johnson Trucking contends that, until that point, Peterbilt and Caterpillar had possession of the truck, performed repairs, and represented that the repairs were successful. Johnson Trucking asserts that March 2010 was the earliest date that Johnson Trucking discovered, or by reasonable diligence should have discovered, that Peterbilt and Caterpillar would not honor the extended-service coverage. Johnson Trucking also argues that questions remain as to the representations of Peterbilt and Caterpillar, the reliance of Johnson Trucking on those representations, and the date that Johnson Trucking knew or should have known that Peterbilt and Caterpillar were not going to honor the extended-service coverage.

¶ 14. Peterbilt and Caterpillar argue that, in relation to the breach-of-warranty claim, Johnson Trucking’s claim was barred six years after the date of delivery of the truck, as the warranty did not extend to future performance, but rather provided only for “repair or replacement.” Johnson Trucking, however, asserts that the warranty explicitly extended to future performance by the presence of the limitations of 700,000 miles and seventy-two months. Therefore, Johnson Trucking argues that the general six-year limitation period for breach of warranty is inapplicable.

¶ 15. Both parties also interpret the details of the coverage differently. Johnson Trucking contends that since the truck had not yet reached 700,000 miles, it was still covered by the extended-service coverage. Peterbilt and Caterpillar argue that seventy-two months had passed, and therefore Johnson Trucking was no longer covered by the warranty. Johnson Trucking also alleges that the claims could not have accrued because it was not aware that Peterbilt and Caterpillar would not perform under the coverage, based on the representations made to Johnson Trucking. Peterbilt and Caterpillar both contend that Johnson Trucking was on notice of the damaged truck from the moment it first began to malfunction and was not repaired properly. Johnson Trucking asserts that a determination of the factual disputes must be made before a resolution can be reached as to whether or not the claims are barred by the applicable statutes of limitations.

¶ 16. The Mississippi Supreme Court has previously found:

[T]he statute of limitations commences upon discovery of an injury, and discovery is an issue of fact to be decided by a jury when there is a genuine dispute. Therefore, the critical question with which we are confronted is whether, in a summary judgment context, we can identify as a matter of law, the point at which [the plaintiff] knew or should have known or should have made an inquiry, based on the information available to him.

Weathers v. Metro. Life Ins. Co., 14 So.3d 688, 692 (¶ 14) (Miss.2009) (internal citations and quotation marks omitted). “[OJccasionally the question of whether the suit is barred by the statute of limitations is a question of fact for the jury; however, as with other putative fact questions, the question may be taken away from the jury if reasonable minds could not differ as to the conclusion.” Stringer v. Trapp, 30 So.3d 339, 342 (¶ 12) (Miss.2010) (citation omitted). Since discovery had not been conducted at the time the motion for summary judgment was granted, the record is limited for our review. Nonetheless, we find that reasonable minds could differ regarding the conclusion of whether or not Johnson Trucking’s claims were barred by the applicable statutes of limitations.

¶ 17. We conclude that genuine issues of material fact exist as to the accrual date of Johnson Trucking’s claims and as to whether the representations that were made by Peterbilt and Caterpillar to Johnson Trucking conflicted with the terms of the extended-service coverage. As such, we find that summary judgment was premature. Therefore, the circuit court’s judgment is reversed, and this case is remanded for proceedings consistent with this opinion.

¶ 18. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT 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-PELLEES.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


source: Caselaw Access Project

license: Public Domain

text:
    Emanuel SANDERS, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-01106-COA.
    Court of Appeals of Mississippi.
    June 24, 2014.
    Rehearing Denied Oct. 21, 2014.

      Emanuel Sanders, appellant, pro se.
    Office of the Attorney General by La-Donna C. Holland, attorney for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. On February 22, 2007, Emanuel Sanders pleaded guilty in the Lowndes County Circuit Court to one count of armed robbery and one count of possession of marijuana. He was sentenced to nine years for the conviction of armed robbery, and six years, to run consecutively, for the conviction of possession of marijuana, all in the custody of the Mississippi Department of Corrections (MDOC). In July 2012, Sanders filed his first motion for post-conviction relief (PCR), which was dismissed by the circuit court as time-barred. He then filed a motion for relief from the judgment in May 2013. The circuit court, treating it as a PCR motion, dismissed the motion as time-barred. Sanders appeals. Finding no error, we affirm the circuit court’s judgment.

STATEMENT OF THE FACTS

¶ 2. In 2006, Sanders was indicted for armed robbery, burglary of a dwelling, and burglary of an automobile. The counts involved the same victim, Thomas Hinton. During the incident, Sanders also stole marijuana from Hinton’s freezer. Subsequently, Sanders was also indicted for possession of marijuana. Sanders ultimately reached an agreement with the State. He agreed to plead guilty to the charges of armed robbery and possession of marijuana, and in return, the State agreed to drop the charges for burglary of a dwelling and burglary of an automobile. Sanders entered his guilty pleas on February 22, 2007. He received a nine-year sentence for the armed-robbery conviction, and a consecutive six-year sentence for the possession-of-marijuana conviction.

¶ 3. On July 17, 2012, Sanders filed his first PCR motion, claiming ineffective assistance of counsel, which the circuit court dismissed as time-barred. Sanders did not appeal the circuit court’s dismissal of his PCR motion. However, he filed a motion for relief from the judgment pursuant to Mississippi Rule of Civil Procedure 60(b) on May 14, 2013. In this motion, Sanders alleged that his convictions for armed robbery and possession of marijuana,arose out of the same incident, and that the separate sentences violated his right to be free from double jeopardy. The circuit court treated the motion as a PCR motion and dismissed it as being time-barred. Aggrieved, Sanders now appeals.

DISCUSSION

¶ 4. The heart of Sanders’s argument on appeal is that his motion for relief from the judgment pursuant to Mississippi Rule of Civil Procedure 60(b)(6) was incorrectly treated as a PCR motion, and therefore, incorrectly dismissed as time-barred. He contends that his motion was not time-barred, as there is no time limit associated with the filing of a Rule 60(b)(6) motion. Finally, Sanders contends that his convictions for both armed robbery and possession of marijuana violate his right to be free from double jeopardy.

¶5. A circuit court’s denial of relief pursuant to Rule 60(b)(6) is reviewed under an abuse-of-discretion standard. Beeks v. State, 130 So.3d 163, 165 (¶7) (Miss.Ct.App.2014). We find that the circuit court did not abuse its discretion in denying Sanders relief. Rule 60(b)(6) provides that “[o]n motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons ... any other reason justifying relief from the judgment.” However, Rule 60(b) motions are for “extraordinary and compelling eireum-stances[.]” S. Healthcare Servs., Inc. v. Lloyd’s of London, 110 So.3d 735, 742 (¶ 14) (Miss.2013) (citations omitted). The motions “should be denied where they are merely an attempt to relitigate the case.” Id. Further, “a Rule 60(b) motion is not to be used as a substitute for appeal.” Id. at 742 (¶ 15). We have held:

Purely collateral post-conviction remedies attacking a judgment of conviction or sentence should be sought under authority of the Post-Conviction Collateral Relief Act since that Act, in the pure post[-]conviction[-]eollateral[-]relief sense, is arguably “post-conviction habe-as corpus renamed.” Arguments over nomenclature should be avoided so long as the Act affords the relief formerly available by habeas corpus in this limited context.

Edmond v. State, 845 So.2d 701, 702 (¶ 3) (Miss.Ct.App.2003) (quoting Walker v. State, 555 So.2d 738, 740 (Miss.1990)).

¶ 6. In the present case, Sanders had already filed one PCR motion, which the court dismissed as being time-barred. Instead of appealing the circuit court’s judgment, Sanders filed the motion that is the subject of this appeal nearly a year after the dismissal of his first PCR motion. Sanders’s underlying argument attacked the judgment of his convictions and sentences for armed robbery and possession of marijuana. In light of these factors, it is clear that Sanders’s filing of a Rule 60(b) motion is nothing more than an attempt to relitigate the ease or substitute the appeal of his first PCR motion. As such, the circuit court did not abuse its discretion by denying Sanders relief, and properly treated the motion as one seeking post-conviction relief.

¶ 7. A circuit court’s denial or dismissal of a PCR motion will not be disturbed unless the decision was clearly erroneous. Bell v. State, 105 So.3d 401, 403 (¶ 5) (Miss.Ct.App.2012) (citing Smith v. State, 12 So.3d 563, 564 (¶4) (Miss.Ct.App.2009)). Questions of law are reviewed de novo. Id. Mississippi Code Annotated section 99-39-5(2) (Supp.2013) provides:

A motion for relief under this article shall be made within three (3) years after the time in which the petitioner’s direct appeal is ruled upon by the Supreme Court of Mississippi or, in case no appeal is taken, within three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired, or in case of a guilty plea, within three (3) years after entry of the judgment of conviction.

Sanders pleaded guilty to armed robbery and possession of marijuana on February 22, 2007. The three-year statute of limitations expired on February 22, 2010. Facially, his subsequent motions seeking relief appear to be time-barred.

¶ 8. Section 99-39-5(2)(a)-(b) provides three exceptions to the general three-year statute of limitations. To be exempt, a movant must show oné of the following: (1) an intervening decision of a higher court; (2) new evidence, not reasonably discoverable at trial; or (3) that his sentence has expired or his parole, probation, or conditional release has been unlawfully revoked. Miss.Code. Ann. § 99-39-5(2)(a)-(b). Further, the Mississippi Supreme Court has found that “[ejrrors affecting fundamental constitutional rights are excepted from the procedural bars of the [Uniform Post-Conviction Collateral Relief Act (UPCCRA) ].” Rowland v. State, 42 So.3d 503, 506 (¶ 12) (Miss.2010).

¶ 9. Because of Rowland, we find that Sanders’s claims of double jeopardy , are excepted from the procedural bars of the UPCCRA. Sanders argues that the convictions of armed robbery and possession of marijuana arose out of the same incident. He contends that receiving separate sentences for each conviction violates his right to not be subjected to double jeopardy.

¶ 10. It is well settled that the Double-Jeopardy Clause protects against multiple punishments for the same offense. Kelly v. State, 80 So.3d 802, 804 (¶8) (Miss.2012) (citing Boyd v. State, 977 So.2d 329, 334 (¶ 15) (Miss.2008)). “A conviction can withstand a double-jeopardy analysis only if each offense contains an element not contained in the other.” Id. (citing Boyd, 977 So.2d at 334 (¶ 16)). “If they do not, the two offenses are, for double-jeopardy purposes, considered the same offense, barring prosecution and punishment for both.” Id.

¶ 11. Sanders was convicted of armed robbery pursuant to Mississippi Code Annotated section 97-3-79 (Rev. 2006). He was also convicted of possession of marijuana pursuant to Mississippi Code Annotated section 41-29-139 (Rev. 2013). The two offenses do not share a single element. Therefore, this issue is without merit. As such, we affirm the circuit court’s judgment.

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

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


author: ROBERTS, J., JAMES, J.,

text:
    Bertha Mae WILSON a/k/a Bertha M. Wilson, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KA-00346-COA.
    Court of Appeals of Mississippi.
    June 24, 2014.
    Rehearing Denied Oct. 21, 2014.

      Office of State Public Defender by Erin Elizabeth Pridgen, George T. Holmes, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, John R. Henry Jr., attorneys for appellee.
   ROBERTS, J.,

for the Court:

111. Bertha Mae Wilson was convicted of deliberate design-murder and sentenced to life imprisonment. The sole issue on appeal is whether it was reversible error under Mississippi Rule of Evidence Rule 404(b) for the State to cross-examine Wilson with prior statements that she made to a non-testifying but available psychological expert.

¶ 2. Because there was no contemporaneous Rule 404(b) objection at trial, the issue is procedurally barred. We nonetheless consider the issue on the merits and find that the trial court did not abuse its discretion in admitting the evidence. Accordingly, we affirm the conviction.

FACTS AND PROCEDURAL HISTORY

¶ 3. On the night of August 14, 2011, Wilson stabbed her former fiancé, Marcus Spencer, in the neck with her knife as he lay half-naked in her bed, severing his jugular vein and carotid artery. Spencer fled from the apartment and collapsed outside. As bystanders gathered around Spencer and one of them attempted to help him, Wilson calmly walked up, exclaimed “I did it,” and then kicked Spencer in the face, saying: “Bitch, didn’t I tell you I was going to kill you,” and “I hope you die and burn in hell,” and “How he going to be sleeping with me and my daughter?” Spencer died a short time later due to massive blood loss. At the time, Wilson was thirty-nine years old. She weighed about 230 pounds. Spencer was thirty-six years old. He weighed 185 pounds. Wilson and Spencer were approximately the same height.

¶ 4. The prosecution presented evidence that five days before Wilson killed Spencer, Wilson had called Spencer’s sister. Wilson asked Spencer’s sister to tell Spencer that Wilson was not mad at him anymore. Wilson also wanted Spencer to know that she did not believe what she had heard, and that he should answer her phone call. Afterward, Wilson and Spencer talked over the phone. Spencer agreed to visit Wilson at her apartment.

¶ 5. On the night of August 14, Wilson had her children leave the apartment, so they would not be there when Spencer arrived. The prosecution’s theory was that Wilson had lured Spencer to her apartment so that she could kill him, because she thought that he had slept with her eighteen-year-old daughter.

¶ 6. Prior to trial, the defense sought and obtained funds for a mental-health expert. Dr. Beverly Smallwood examined Wilson and produced a twenty-five-page report. Prior to the examination, Dr. Smallwood told Wilson that her statements were not privileged and would be turned over to the State. The defense listed Dr. Smallwood as a potential witness, and as a consequence, was required by the rules of discovery to turn her report over to the State in advance of trial. The defense decided not to call Dr. Smallwood as a witness.

¶7. Dr. Smallwood’s report contained several statements Wilson made that were inconsistent with her claimed defense that she killed Spencer during the heat of passion. Wilson testified and was cross-examined using her statements from the report. The report itself was never introduced into evidence nor shown to the jury. Ultimately, Wilson was convicted and sentenced to life imprisonment.

I. Pretrial Rule 404(b) Motion in Li-mine

¶ 8. On the morning trial began, the defense argued that Mississippi Rule of Evidence 404(b) prohibited the State from mentioning anything from Dr. Smallwood’s report unless Dr. Smallwood testified. The defense was particularly concerned about the fact that Wilson had told Dr. Smallwood that she had previously used a knife to attack two other men in her home. The victims of her attacks were her ex-husband and a former boyfriend. The State responded that Wilson’s statements might be admissible as impeachment if she testified. Depending on how Wilson testified, the State suggested that the statements might be relevant to lack of mistake, modus operandi, or pattern. Without having read Dr. Smallwood’s report, which had just been furnished to it, the circuit court held that the report would not be admitted, but “depending on the proof at the time,” the matter could be “revisit[ed].”

II. The Defense Theory

¶ 9. During opening statements, Wilson’s attorney said: “That fiery, that rage, that hatred [was] still there. This man had had sex with her [eighteen]-year-old daughter and wanted her to marry him and have sex with her that night. That’s not murder. At worst it’s manslaughter, at best it’s self-defense.” Wilson’s attorney went on to say that Wilson had been sexually abused by her grandfather, raped in the seventh grade by a man she babysat for, and raped by a group of boys in the eleventh grade, causing her to become pregnant and drop out of school. Wilson’s attorney also told the jury that Wilson’s twin daughters had been sexually abused by their father in North Carolina. According to Wilson’s attorney, Wilson was angry because she believed that her daughter had slept with Spencer. But Wilson’s attorney claimed that Wilson did not intend to kill Spencer. Specifically, Wilson’s attorney stated that she “never had any specialized training in martial arts. She doesn’t know the best place to stab somebody if you want to kill them or any of that sort of thing. Okay. She doesn’t know anything about any of that.”

¶ 10. After the prosecution presented its case-in-chief, it argued that Wilson should be prohibited from introducing evidence of her past violent confrontations with other men. Wilson’s attorney argued that such evidence was necessary to present Wilson’s defense. According to Wilson’s attorney, evidence of her previous experiences was necessary to explain the anger and rage that caused her to kill Spencer. Specifically, Wilson’s attorney argued:

Your Honor, the proof of manslaughter deals with state of mind of the defendant at the time that the killing took place. The state of mind of the defendant is— can be proven through the testimony regarding a past and the events that occurred up until the time of the killing. It’s not irrelevant. It’s relevant to her state of mind. It’s relevant as to whether this is a manslaughter case or ... deliberate[-]design murder. I don’t know how else you can make a defense of manslaughter without proving some sort of past anger, something that creates this anger and this frustration. Sometimes it happens immediately, sometimes it happens over the course of many years. I can’t make a defense if I’m not allowed to put on evidence to show that there was every reason to believe that this woman had reached a point to where she snapped, and that is the basis of heat[-]of[-]passion manslaughter.

¶ 11. The circuit court agreed to allow Wilson to put on all of the evidence she wanted to about her violent past to explain why she “snapped.” However, the circuit court pointed out that Dr. Smallwood’s report was not privileged. Referring to the prosecutor, Wilson’s attorney said, “Even if she uses it[,] the fact of the matter is that she can refer to it and our defendant, our client, will have to explain those things.” The circuit court agreed: “[I]t appears to me that the State certainly can cross-examine her with regard to all of those incidents as well as any other incidents that they may have information on.... They have the report and it is fair game.” The circuit court continued:

[T]he defendant can testify to whatever is admissible[,] ... to those things that formed that defendant’s state of mind in the relevant time period. The State can then cross-examine with regard to any items that would cast some doubt on that state of mind and on the credibility of that defendant.... [T]hat doesn’t prohibit [the State ] or the defense from objecting appropriately as the questions are asked....

(Emphasis added).

III. Wilson’s Testimony

¶ 12. On direct examination, Wilson testified consistent with her attorney’s opening statement. When her attorney asked if she had been attacked by men before, she testified that she had been beaten before. Wilson also testified that she had been raped by her grandfather, a man she babysat for, and a group of boys in high school. Wilson went on to say that she went to North Carolina to get her twin daughters from their father, who was sexually abusing them. According to Wilson, Spencer gave her the money to travel to North Carolina. Wilson testified that she and Spencer had dated for approximately two years, and they planned to get married during June 2012. Wilson added that she broke up with Wilson because he had threatened to kill her.

¶ 13. Wilson claimed that after she had broken up with Spencer, she found a text message on her son’s phone that made her think that Spencer had slept with her daughter. She confronted her daughter about it and became convinced that her suspicion was correct. Wilson testified that Spencer had called her several times during the week that she confronted her daughter, but she told him to stay away from her because she did not want to have anything to do with him.

¶ 14. According to Wilson, Spencer showed up at her apartment on the night of August 14 and insisted that she have sex with him. Wilson testified that Spencer said he was “going to get him some,” and that he “did not come this far ... for nothing.” Wilson stated that she had just gotten out of the shower, she was only wearing her bathrobe, and Spencer followed her to her bedroom. Wilson testified that Spencer shoved her against the wall, and she fell to the floor. She testified that Spencer disrobed and sat on Wilson’s bed fondling himself. Wilson testified that she flew into a rage and stabbed Spencer with a knife that was conveniently on a chair in her bedroom. Wilson’s attorney asked her why she had the knife, and she responded: “I have several of them. I just like knives.” Wilson admitted that she followed Spencer outside, kicked him in the head, and told him to die. Wilson testified that she also called Wilson a sick pervert. But she denied that she said she had told him that she was going to kill him.

¶ 15. During cross-examination, the prosecutor asked Wilson: “Isn’t it true that when you met with [Dr. Smallwood,] you told her that you keep knives hidden all around your house?” Wilson answered, “That’s correct.”

¶ 16. The prosecutor asked Wilson whether she had ever used sex as a tool against men. Wilson denied that she had. The prosecutor then asked Wilson whether she had said that to Dr. Smallwood. Wilson’s attorney objected that the question called for hearsay, and it would create a confrontation violation because he could not cross-examine the report. The circuit court noted that it was Wilson’s own statement and therefore not hearsay, and that Dr. Smallwood was not unavailable if the defense wished to call her. Defense counsel conceded that Dr. Smallwood was available to testify.

¶ 17. The prosecutor then asked if Wilson had told Dr. Smallwood that she “would get them before they got me. It’s like turning the table.” Wilson admitted that she had said that to Dr. Smallwood. Regarding Wilson’s testimony that she had been beaten in the past, the prosecutor asked:

Q. Isn’t it true that these episodes where you say that you have been beaten before.... That you actually joined a gang when you were younger?
A. I did.
Q. And the two ways that you can be initiated into a gang are what? Can you tell me?
A. Sexually or jumped in.
Q. What is jumping in?
A. Where three guys — three males and three females fight you, jump on you for a certain amount of time.
Q. And which way did you choose to be initiated?
A. Jumped in.

Wilson’s attorney did not object.

¶ 18. Concerning Wilson’s attack on Spencer in her home, the prosecutor asked: “[I]sn’t it true that you have been in this situation before.... A man that you’ve been dating or married to in a house where you have a knife?” Wilson replied, ‘Tes.” The prosecutor then asked: “[Ijsn’t it true when you spoke with Dr. Smallwood you described those incidents as tension relief for you?” Wilson again admitted that she had. Again, there was no objection. Finally, the prosecutor asked Wilson if she had been armed with a knife in two similar situations in the past; once with a former boyfriend, and once with an ex-husband. Concerning one of the incidents, the prosecutor asked:

Q. You told Dr. Smallwood he made it to the kitchen, [“]I grabbed a knife, I flung it at him, it stuck to the door. I told my mom to watch the kids and don’t let them out. I went looking for him. I was angry.f”] Do you remember talking about that with Dr. Smallwood?
A. Yes, I did. I remember.

Again, there was no objection.

¶ 19. On redirect, Wilson explained that she was no longer in a gang and she no longer believed the past statements she had made about men. She said she outgrew that attitude and no longer felt that way during the night she killed Spencer.

¶20. After Wilson left the stand, the circuit court conferred with the attorneys and explained its ruling regarding’the use of Dr. Smallwood’s report. The circuit court asked if either the prosecution or the defense requested anything further on the record. Both attorneys declined the circuit court’s invitation. As previously mentioned, the jury found Wilson guilty of murder.

IY. Hearing on Wilson’s Posttrial Motions

¶ 21. Wilson filed a motion for a judgment notwithstanding the verdict or, alternatively, for a new trial. At the hearing on Wilson’s posttHal motions, her attorney argued that the evidence was insufficient to find her guilty of murder, and that the circuit court erred in allowing the State to use Dr. Smallwood’s report because it was privileged. Wilson’s attorney did not claim that the State’s cross-examination of Wilson was improper under Rule 404(b). The circuit court found no merit to Wilson’s posttrial motions. The circuit court noted that Dr. Smallwood’s report re-fleeted that she had advised Wilson that her statements would not be confidential. Concerning Dr. Smallwood’s report, the circuit court noted that Wilson chose to testify, and she knew that “she was open to cross-examination” on it. The circuit court explained that it was permissible for the prosecution to cross-examine Wilson with Dr. Smallwood’s report because:

Wilson had raised as a defense her state of mind ... with regard to the heat[-]of[-]passion defense. Once she raised her state of mind and raised the fact that she was afraid or that she felt she was being attacked, she herself testified to prior incidents in her life that caused her to have the state of mind that she claimed she had had[,] making her state of mind then fair game for cross-examination. These prior incidents, which quite frankly the State didn’t go into as much detail as was in the report, but the State then had the right to cross-examine her about the other incidents that might also have refuted what she claimed was her state of mind. So based on that it still appears to the Court that the information in the report was available to the State[,] ... and the State made proper use of it based on the facts and the evidence as it then occurred.

STANDARD OF REVIEW

¶ 22. The standard of review concerning the admission of evidence is abuse of discretion. Shearer v. State, 423 So.2d 824, 826 (Miss.1983). This same standard applies to the introduction of evidence under Mississippi Rule of Evidence 404(b). Richardson v. State, 74 So.3d 317, 329 (¶¶ 39-40) (Miss.2011). We will reverse “only if such discretion has been abused and a substantial right of a party has been affected.” Id. at (¶ 39).

ANALYSIS

¶ 23. Wilson claims that the State improperly introduced evidence to show her bad character in violation of Mississippi Rule of Evidence 404(b). Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

However, Wilson did not object under Rule 404(b) when the prosecution presented the evidence at issue. Consequently, this issue is proeedurally barred. Smith v. State, 986 So.2d 290, 295 (¶¶ 13-14) (Miss. 2008).

¶ 24. Smith also involved a murder trial. During Smith’s trial, an investigator testified that during interviews, Smith admitted that he had committed numerous crimes. Id. at 293-94 (¶ 7). Smith’s attorney objected to the investigator’s testimony based on hearsay and the inability to confront the evidence, but the objections were overruled. Id. at 295 (¶ 14). On appeal, Smith argued that the testimony was improper evidence of prior bad acts in violation of Rule 404(b). Smith, 986 So.2d at 295 (¶ 11). The Mississippi Supreme Court held that Smith had “waived any argument concerning character evidence when he failed to raise it in the trial court.” Id. at (¶ 14). The supreme court further held:

This Court has held an objection must be made with specificity, and failure to articulate the grounds for objection constitutes a waiver of the alleged error. Further, we have held that an objection on one or more specific grounds constitutes a waiver of all other grounds.
This Court noted ... that an objection cannot be enlarged in the reviewing court to embrace an omission not complained of at trial. This Court cannot find that a trial judge committed reversible error on a matter not brought before him or her to consider.

Id. at (¶ 13) (internal citations and quotation marks omitted).

¶25. Wilson claims that her pretrial motion in limine concerning Rule 404(b) in relation to Smallwood’s report preserved her objection during the prosecution’s cross-examination of Wilson. When a party in advance of trial seeks to exclude evidence from a jury, she faces a formidable task. She must convince the trial court that “(1) the material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the mere offer, reference, or statements made during trial concerning the material will tend to prejudice the jury.” Wright v. Royal Carpet Servs., 29 So.3d 109, 115 (¶ 13) (Miss.Ct.App.2010) (quoting Whittley v. City of Meridian, 530 So.2d 1341, 1344 (Miss.1988)).

¶ 26. Wilson relies on Parvin v. State, 113 So.3d 1243 (Miss.2013). In Parvin, the defense moved before trial to exclude as speculative the state expert’s opinions on gun distance and bullet trajectory. The circuit court denied the motions. Id. at 1247-48 (¶¶ 15-18). The defendant nonetheless personally tried to object to the testimony while it was being given but was admonished to speak only through his attorney. Id. at 1248 (¶ 19). Specific objections to the reliability of the opinions were again made when the witness left the stand and in motions to set aside the verdict after trial. Id. at (¶20). In ruling that the objection had been properly preserved, the supreme court noted: “Given the numerous attempts to exclude [the witness’s] testimony, we cannot agree with the State that the issue is procedurally barred. The trial judge was given several opportunities to consider the reliability of the autopsy report, and he rejected each one.” Id. at (¶ 21).

¶ 27. This case is not at all like Panin. In the present case, the circuit court said it would “revisit” the issue as the proof developed, but Wilson never raised another objection under Rule 404(b). Wilson’s attorney seemed to agree when the circuit court explained the ground rules for Wilson’s cross-examination prior to her testimony. Wilson’s attorney declined the circuit court’s invitation to add anything to the record after Wilson testified. And Wilson’s attorney did not raise an objection under Rule 404(b) during the hearing on Wilson’s posttrial motions.

¶ 28. Wilson also relies on Goff v. State, 14 So.3d 625 (Miss.2009). Goff held that a defendant who had lost a pretrial motion to suppress specific evidence did not need to renew that objection when the specific evidence was offered at trial. Id. at 640 (¶ 46). Unlike the suppression issue in Goff, which did not change based on how other evidence in the case developed, the state-of-mind and intent issues crystalized during the course of Wilson’s trial. Only when Wilson testified did she expose herself to cross-examination. Only then did the State have the right to contradict her testimony with her prior inconsistent statements. Those prior statements dealt with violent subjects because Wilson’s justification for the attack was based, in part, on her violent past.

¶ 29. Goff relied in part on Kettle v. State, 641 So.2d 746 (Miss.1994). In Kettle, the defense moved before trial to prohibit the State from relying on a lab supervisor, rather than the chemist who performed the drug test, to testify as to the results of the test. The trial court denied the motion, stating that the defendant could cross-examine the supervisor about the issue. Thereafter, the supervisor testified without objection by the defendant. The supreme court held that the objection was properly preserved. Id. at 748. The supreme court was careful to observe, however:

A different result may be warranted where there is a significant change in the basis for admitting the evidence. When this occurs, a further objection may be required. Here, there was no change in the basis for admitting the evidence from the time the in limine ruling was made until the evidence was introduced at trial. Therefore, the ... objection to the in limine ruling preserved the point.

Id. at 748^49 (quoting Wimer v. Hinkle, 180 W.Va. 660, 379 S.E.2d 383, 386 (1989)).

¶ 30. That is precisely the situation in the present case. The circuit court informed the parties before trial began that “depending upon the proof,” the issue could be “revisit[ed].” Then, before the defense put on its case, the circuit court gave the parties fair notice that if Wilson testified to prior events in her life that led her to commit the act on trial, the State would be allowed to cross-examine her on her statements from the report. There was no unfair surprise. The defense was warned to make whatever objections to the questioning it deemed were necessary. The only objections made were as to hearsay and confrontation. These are not the same objections Wilson now raises on appeal. Wilson’s Rule 404(b) objection is therefore procedurally barred.

¶ 31. Procedural bar notwithstanding, this issue is meritless. Wilson cites to Chambers v. State, 800 So.2d 1178 (Miss.Ct.App.2001). In Chambers, the trial court ruled before trial that the State would not be allowed to offer evidence of the defendant’s drinking habits unless the defense first offered evidence of his good character. In its case-in-chief, the prosecution called an. investigator who testified, over the defendant’s objection, that the defendant told him that he preferred to drink alone because he got angry when he drank. Id. at 1182 (¶ 11). On appeal, this court upheld the admission of this evidence, noting:

We agree that the testimony presented evidence of Chambers’[s] state of mind or motive for the shooting and not of prior bad acts. Chambers and Ferguson were arguing and drinking when the shooting occurred[,] and the State elicited none of the prior bad acts evidence complained of by Chambers. We conclude that the admission of the evidence in this case was not unduly prejudicial to Chambers.

Id. at (¶ 13).

¶ 32. Application of the holding in Chambers shows that no error occurred in the present case. In Chambers, the circuit court initially ruled that the Rule 404(b) evidence would not be admissible. In the present case, the circuit court specifically stated that the issue could be “revisit[ed]” as the case developed. As in Chambers, it became evident that the Rule 404(b) evidence was admissible to show state of mind, plan, and motive.

¶ 33. In Fisher v. State, 532 So.2d 992 (Miss.1988), the defendant was on trial for rape. He had flashed his car headlights to get the victim to pull over and then raped her. A witness testified at trial, over the defendant’s Rule 404(b) objection, that the defendant had flashed his lights to get her to pull over on another occasion. The supreme court upheld this evidence of other bad acts, commenting: “The evidence of Fisher’s modus operandi was not adduced to identify him, but to show his ‘plan’ for assaulting women. Thus, it was admissible under Rule 404(b).” Fisher, 582 So.2d at 1000.

¶ 34. In Moss v. State, 727 So.2d 720 (Miss.Ct.App.1998), the defendant was on trial for murdering his wife. His defense was that it was an unplanned act done in the heat of passion. Id. at 725 (¶ 21). The supreme court upheld the introduction of acts of past physical abuse of the wife to show “a continuing pattern of violence,” which was relevant to show the defendant’s “motive and intent.” Id. at (¶ 19).

¶ 35. As in Fisher and Moss, Wilson’s past violence toward men she was romantically involved with, but with whom she was in conflict, was probative to show modus operandi, plan, motive, and intent. Her specific weapon of choice was knives. As she volunteered on direct examination: “I have several of them. I just like knives.”

¶ 36. Wilson also complains about the prosecutor’s question relating to her violent gang initiation. Wilson acknowledges that evidence of gang activity may be relevant, such as in Hoops v. State, 681 So.2d 521, 530 (Miss.1996), where it was held admissible under Rule 404(b) to show a motive for a shooting. Wilson complains, however, that the circuit court did not conduct a balancing test as required by Mississippi Rule of Evidence 403, which provides that, “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice....”

¶ 37. It is true that the circuit court did not weigh the probative value of the evidence versus its prejudicial effect on the record. This is not always required, however. In Hoops, the circuit court also failed to use the “magic words,” but the supreme court noted that the circuit court had “implicitly made” that determination. Id. at 531; see also Dao v. State, 984 So.2d 352, 361 (¶ 33) (Miss.Ct.App.2007) (Rule 403 analysis implicit where court considers arguments for and against admission of Rule 404(b) evidence); Hudson v. State, 977 So.2d 344, 349 (¶25) (Miss.Ct.App. 2007) (balancing may be implicit). In Jones v. State, 920 So.2d 465 (Miss.2006), the supreme court stated that it “do[es] not interpret this requirement to be a regimented procedure^] ... Though this Court certainly expects trial judges to have considered Rule 403 in making their evidentiary rulings, we certainly do not predicate the soundness of these determinations on the express use of magic words[.]” Id. at 476 (¶ 34) (citation omitted). Likewise, in Archer v. State, 118 So.3d 612, 625 (¶57) (Miss.Ct.App.2012), we noted that “our review depends on the evidence and not the judge, and while a judge’s on-the-record analysis is recommended as it serves to fortify the judge’s position for purposes of review, the lack of such analysis is harmless unless we deem the evidence to be patently prejudicial.” Id. (citing Jones, 920 So.2d at 476 (¶ 34)). Here, the evidence, while certainly prejudicial, was not unfairly so, since its probative value was great.

¶ 38. Where, as here, a defendant fails to make a contemporaneous Rule 404(b) objection, the circuit court cannot be faulted for failing to conduct an explicit on-the-record Rule 403 analysis. In any event, it is clear that the probative value of the limited cross-examination at issue here far outweighed any danger of unfair prejudice. Whether Wilson had lured Spencer to her apartment under the pretense of reconciliation and sex, but planned to kill him at an opportune moment, or whether Wilson acted spontaneously in a fit of rage based on her prior history of having been sexually violated by men, was front and center in this case. If the former, Wilson likely committed premeditated murder. If the latter, Wilson likely committed manslaughter.

¶ 89. The evidence at trial made one thing perfectly clear to the jury: Wilson’s rage against Spencer was real. She believed her fiancé had sex with her daughter. The key issue to resolve was — did the anger rise up suddenly and unexpectedly, or did Wilson entice Spencer to her home with murder on her mind? Wilson introduced her past violent interactions with men, over the State’s objection, in an attempt to sway the jury to accept that her rage was sudden and irresistible. The prosecution was entitled to use Wilson’s own prior statements to show that she was perfectly willing to use violence, specifically including attacks with a knife, against men in her life she felt had wronged her. There was no violation of Rule 404(b). Finding no reversible error, we affirm Wilson’s conviction.

¶ 40. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF DELIBERATE-DESIGN MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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

JAMES, J.,

dissenting:

¶ 41. I disagree with the majority’s finding that Wilson’s prior statements were admissible pursuant to Mississippi Rule of Evidence 404(b). I would find that the statements constituted improper character evidence. Further, I would find that the probative value of Wilson’s prior statements was outweighed by their prejudicial effect and that the trial court erred in failing to conduct a balancing test, or otherwise consider Mississippi Rule of Evidence 403, when ruling that the statements were admissible. Therefore, I respectfully dissent.

I. Procedural Bar

¶ 42. I disagree that Wilson did not properly preserve this issue for appellate review. Although Wilson failed to make a contemporaneous objection on the ground of improper character evidence when the State introduced the statements at trial, Wilson did file a motion in limine seeking to exclude the use of character evidence. In addition, on the morning of trial, Wilson specifically raised the issue of her statements to Dr. Smallwood, and the trial court ruled that the statements would not be admitted unless Dr. Smallwood testified. The Mississippi Supreme Court has held that “a defendant’s motion in limine regarding the introduction of evidence properly preserve[s] the issue for appeal.” Goff v. State, 14 So.3d 625, 640 (¶ 46) (Miss.2009) (citing Kettle v. State, 641 So.2d 746, 748 (Miss.1994)). Furthermore, “when a party files a motion in limine to exclude ... evidence, ... the party may try the case on the assumption that the court’s prior ruling will stand.” Parvin v. State, 113 So.3d 1243, 1247 (¶15) (Miss.2013). Accordingly, I would find that this issue was sufficiently preserved for review.

II. Character Evidence

¶ 43. To be admissible, evidence must be relevant. M.R.E. 402. All relevant evidence is admissible absent an exception.

Id. Relevant evidence may be excluded if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” M.R.E. 403. Generally, “[ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” M.R.E. 404(b). However, Rule 404(b) enumerates several exceptions to the general prohibition; thus, evidence of other bad acts “may be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id. Finally, “[ejvidence of other crimes, wrongs, or acts of the defendant offered pursuant to Rule 404(b) may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” Richardson v. State, 74 So.3d 317, 329 (¶40) (Miss.2011) (citing Davis v. State, 40 So.3d 525, 529-30 (¶ 15) (Miss.2010)).

¶ 44. I would find that the statements involving the two prior incidents in which Wilson used a knife were unfairly prejudicial and constituted improper character evidence. The statements clearly run afoul of Rule 404(b), which provides that “[ejvi-dence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” The two statements involving knife play invited the jury to infer that, because Wilson had used a knife on two previous occasions, she used a knife in the same manner at the time of this incident. Therefore, the statements should have been excluded.

¶ 45. Furthermore, I find that the trial court erred by not filtering the statements through Rule 403 prior to ruling that the statements were admissible. The majority is correct that an on-the-record Rule 403 balancing test is not required in every case. Nevertheless, “all otherwise-admissible evidence must be filtered through Rule 403[,j ... [and][w]hen the trial court admits other bad acts evidence under Rule 404(b), it should make an on-the-recórd Rule 403 finding that the probative value is not substantially outweighed by the danger of unfair prejudice.” Archer v. State, 118 So.3d 612, 625 (¶57) (Miss.Ct.App.2012) (emphasis added). Here, not only did the trial court fail to conduct a Rule 403 balancing test on the record, there is nothing to indicate that the trial court, at any time, considered the probative value of the statements weighed against their prejudicial effect. Regarding the content of Dr. Smallwood’s report, the trial court initially ruled that the statements would not be admissible unless Dr. Smallwood testified. During the pretrial motion hearing, and after hearing the arguments of both parties, the trial court stated: “At this point, I’m not letting [the report] in unless Dr. Smallwood testifies.... At this point, [the State] is not going to be allowed to ask those things.” However, the trial court later ruled that the statements in the report could be used in cross-examination to cast light on Wilson’s state of mind. During a bench conference following Wilson’s testimony, the trial court found that the statements were not privileged, were not hearsay, and did not violate the Confrontation Clause; however, the trial court did not discuss whether the statements pertaining to prior bad acts were improper character evidence, nor did the trial court weigh their probative value or prejudicial effect. Finally, during the hearing on Wilson’s motion for a judgement notwithstanding the verdict, the trial court stated that “the reason [the statements were] allowed didn’t have to do with [Wilson’s] character-[I]t had to do with ... the fact that [Wilson] had raised ... her state of mind ... in either imperfect self-defense or ... self-defense ... [and] also with regard to [the] heat of passion defense. Once she raised her state of mind[,] ... [she made] ... her state of mind fair game for cross-examination.” At no point did the trial court consider the probative value of the evidence, weighed against the potential prejudicial effects that may have resulted if the statements were introduced. Therefore, I must conclude that the evidence was not filtered through Rule 403.

¶46. Accordingly, I respectfully dissent.

      . Unfortunately for Wilson, "needed killing” is not one of the legal justifications for homicide as set forth in Mississippi Code Annotated section 97-3-15 (Rev.2006).


author: IRVING, P.J.,

text:
    Ronald Derrick WHITE a/k/a Ronald White a/k/a Ronald D. White, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KA-01336-COA.
    Court of Appeals of Mississippi.
    Oct. 7, 2014.

      Office of State Public Defender by Hunter Nolan Aikens, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before IRVING, P.J., MAXWELL and JAMES, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. A Rankin County jury convicted Ronald Derrick White of aggravated assault, and simple assault against a person over sixty-five years of age. The circuit court sentenced White, as a habitual offender, to twenty years for the aggravated-assault conviction, and to five years for the simple-assault conviction, with the five-year sentence to run consecutively to the twenty-year sentence, in the custody of the Mississippi Department of Corrections without eligibility for parole or early release. White filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which the circuit court denied. Feeling aggrieved, White appeals and argues that the circuit court erred by giving jury instruction S-1A, submitted by the State.

¶ 2. Finding no error in the circuit court’s judgment, we affirm.

FACTS

¶ 3. In the early morning hours of January 1, 2013, White, his girlfriend, Regina James, and Melinda Temple arrived at White’s parents’ home after a night out. White’s mother, Mary, testified that upon hearing commotion when the group arrived, she and her husband came out of the house and onto the porch. Mary then saw White on the porch, pulling James by her hair and punching and kicking her until she fell unconscious. Mary also stated that she saw White punch Temple in the face, and that neither James nor Temple provoked or hit White before White attacked them. When Mary asked White why he was attacking James and Temple, White picked Mary up off of the porch and threw her into the front yard, causing Mary to sustain injuries.

¶ 4. James testified that she and White were not arguing or fighting prior to arriving at the house. However, she stated that once they arrived at the house, she exited the vehicle, went inside the house, and locked the door. White broke through the glass door and punched her, knocking her unconscious. She stated that all she remembered after being punched is waking up in the hospital. Officer Will Nelson, with the Rankin County Sheriffs Department, testified that the glass door to the house was shattered, and that the door frame was damaged. When he entered the house, he noticed that everyone was bloodied and appeared to be injured, except for White.

¶ 5. At trial, after the parties rested their cases, the court considered the jury instructions that the parties had submitted. The State had initially submitted jury instruction SI, which only instructed the jury on the elements of aggravated assault. The State later submitted jury instruction S-1A, a revised version of instruction SI, which provided:

The Court instructs the Jury that if you unanimously find from the evidence in this case, beyond a reasonable doubt, that the defendant, Ronald Derrick White, on or about January 1, 2013, in Rankin County, Mississippi, did:
1. unlawfully, feloniously, purposely and knowingly;
2. cause bodily injury to Regina James, a human being;
3. with a means likely to produce death or serious bodily injury;
4. by striking the body of Regina James with hands and closed fists, causing multiple fractures
then and in that event, the defendant, Ronald Derrick White, is guilty of aggravated assault and it is your sworn duty to so find.
The Court instructs the Jury that if you unanimously find that the State has failed to prove all elements of the crime of aggravated assault, you may then proceed in your deliberations to consider the lesser charge of simple assault. However, it is your duty to accept the law given to you by the Court, and if the facts and the law warrant a conviction of the crime of aggravated assault, then it is your duty to make such a finding, and not be influenced by your power to find a lesser offense. This provision is not designed to relieve you from performance of an unpleasant duty. It is included to prevent a failure of justice if the evidence fails to prove the original charge but does justify a verdict for the lesser crime.
Therefore, if you unanimously find from the evidence in this case, beyond a reasonable doubt, that the defendant, Ronald Derrick White, on or about January 1, 2013, in Rankin County, Mississippi, did:
1. purposely, knowingly or recklessly;
2. cause bodily injury to Regina James, a human being;
3.by striking the body of Regina James with hands and closed fists, causing multiple fractures,
then and in that event, the defendant, Ronald Derrick White, is guilty of the lesser crime of simple assault.
The Court further instructs the Jury that if the State fails to prove any of the above elements of aggravated assault or simple assault, beyond a reasonable doubt, then in that event you must find the defendant, Ronald Derrick White, not guilty.

White objected to instruction S-1A on the ground that it contained excessive and irrelevant language, as it included elements for the lesser offense of simple assault. White argued that the court should refuse instruction S-1A, and give the jury instruction that he had submitted, instruction D-8, arguing that it would be less confusing than instruction S-1A. Instruction D-8 provided:

If you find that the State has failed to prove any one or more of the essential elements of the crime charged in Count I of the Indictment!, aggravated assault], you must find the defendant not guilty of the charge. You will then proceed with your deliberations to decide whether the State has proved beyond a reasonable doubt all of the elements of the lesser crime of Simple Assault. If you find from all of the evidence in this ease beyond a reasonable doubt that:
1. Ronald White, on or about January 1, 2013[,] in Rankin County, Mississippi;
2. Did purposely and/or knowingly and unlawfully caused bodily injury to Regina James;
3. By striking her with hands and closed fists;
then you shall find the Defendant guilty of Simple Assault.
If the [S]tate has failed to prove any one or more of the above listed elements beyond a reasonable doubt, then you shall find Ronald White not guilty.

¶ 6. The court gave instruction S-1A, and refused instruction D-8 on the grounds that the lesser-ineluded offense of simple assault should be in the same instruction as aggravated assault, and that if the lesser-ineluded offense of simple assault was given in a separate instruction, it may confuse the jury.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 7. Appellate courts review the giving or refusal of certain jury instructions for an abuse of discretion. Williams v. State, 111 So.3d 620, 623 (¶9) (Miss.2013). “The instructions are to be read together as a whole, with no one instruction to be read alone or taken out of context.” Id. (quoting Bailey v. State, 78 So.3d 308, 315 (¶ 20) (Miss.2012)). “When read together, if the jury instructions fairly state the law of the case and create no injustice, then no reversible error will be found.” Id.

¶ 8. White argues that the circuit court erred by giving jury instruction S-1A because the instruction inverted the State’s burden of proof and permitted the jury to find White guilty of aggravated assault if he had committed only one element of the offense. More specifically, White alleges that the following language in the instruction is troubling: “[I]f [the jury] unanimously find[s] that the State has failed to prove all the elements of the crime of aggravated assault, [it] may then proceed in [its] deliberations to consider the lesser charge of simple assault.” He claims that this portion of the instruction deprived him of his constitutional right to have the jury find him guilty of each and every element of aggravated assault.

¶ 9. White did not object at trial to the court’s giving the instruction on this ground and is, therefore, procedurally barred from making this argument on appeal. See Boyd v. State, 47 So.3d 121, 123-24 (¶-10) (Miss.2010). However,

White argues that the court committed plain error by giving instruction S-1A. “Under the plain-error doctrine, [appellate courts] can recognize obvious error which was not properly raised by the defendant and which affects a defendant’s fundamental, substantive right.” Conners v. State, 92 So.3d 676, 682 (¶ 15) (Miss.2012) (quoting Smith v. State, 986 So.2d 290, 294 (¶ 10) (Miss.2008)) (internal quotation marks omitted). “For the plain-error doctrine to apply, there must have been an error that resulted in a manifest miscarriage of justice[.]” Id.

¶ 10. There is no evidence that the instruction impeded White’s fundamental or substantive rights, nor that the instruction resulted in a manifest miscarriage of justice. Instruction S-1A- clearly related all of the elements of aggravated assault and simple assault, and explained that if the State had failed to prove all of the elements of aggravated assault, then the jury could consider the lesser charge of simple assault. The Mississippi Supreme Court has considered the same language that White complains of, and has determined that this same instruction, an “acquit-first” instruction, is not prohibited by the law. Fulgham v. State, 46 So.3d 315, 330 (¶ 40) (Miss.2010).

¶ 11. In Jones v. State, 142 So.3d 420, 424 (¶¶ 16-17) (Miss.Ct.App.2013), the appellant challenged the language in an acquit-first instruction, which stated, “The court instructs the jury that if you unanimously find that the State has failed to prove all the elements of the crime of capital murder, you may then proceed in your deliberations to consider the lesser charge of murder.” This court held that the instruction did not shift the burden of proof to the defendant, contrary to the defendant’s claim. Rather, the instruction reiterated that if the “State failed to prove any element of capital murder, then the jury could consider the lesser crime of simple murder.” Id. at (1117).

¶ 12. Here, the same language that was examined in Jones is used in instruction S-1A, and there is no misstatement of the State’s burden in proving the defendant’s guilt. The instruction did not convey that the State only had to prove one element of aggravated assault in order for the jury to find White guilty of aggravated assault. It is clear from the language that the State had the burden of proving every element of aggravated assault in order for the jury to convict White of aggravated assault. Therefore, the court’s decision to give instruction S-1A does not constitute plain error, and White is procedurally barred from making this argument on appeal.

¶ 13. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, AGGRAVATED ASSAULT, AND SENTENCE, AS A HABITUAL OFFENDER OF TWENTY YEARS; COUNT II, SIMPLE ASSAULT AGAINST A PERSON OVER SIXTY-FIVE YEARS OF AGE, AND SENTENCE, AS A HABITUAL OFFENDER, OF FIVE YEARS, WITH THE SENTENCE IN COUNT II TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, BOTH TO BE SERVED IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR EARLY RELEASE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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


author: FAIR, J.,

text:
    In the Interest of JOEY, A Minor: Sharon Smith, Appellant v. Coahoma County Department of Human Services and Joey, Appellees.
    No. 2013-CA-00979-COA.
    Court of Appeals of Mississippi.
    Oct. 21, 2014.

      Patricia Ann Booker, attorney for appellant.
    C. Kent Haney, Drew, Wilbert Levon Johnson, attorneys for appellees.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. This case began with allegations of a boy sexually abusing his younger brother. The mother, Sharon Smith, appeals the Coahoma County Youth Court’s judgment granting legal and physical custody of her son to his great aunt. Sharon claims the judge erred in adjudicating Joey a neglected child and ignored medical evidence and testimony in support of reunification. She further claims Joey’s guardian ad litem (GAL) acted adversely to Joey’s best interest. We find the evidence was sufficient to support the youth court’s determination and therefore affirm.

FACTS

¶ 2. In March 2012, the Department of Human Services (DHS) received a call from one of Joey’s family members stating that Joey, four years old, was being sexually abused by his eleven-year-old brother. DHS created an initial safety plan (ISP) on March 22, 2012. As part of the ISP, Joey and his brother were not allowed to be alone unsupervised. Joey was not allowed to stay at home overnight. In addition, the family agreed to go to counseling. The ISP was set to remain in effect until it was confirmed that there were no risk factors regarding Joey’s safety in - the home.

¶ 3. On April 23, 2012, DHS received a phone call from Joey’s doctor at the local children’s clinic. The doctor stated that Joey’s family called her claiming Joey was being sexually abused. DHS spoke with Joey’s grandmother, who stated that the incident occurred on April 19, 2012. She also stated that Sharon had violated the ISP by keeping Joey overnight. DHS filed an emergency custody order with the Coahoma County Youth Court. The court granted the order, awarding DHS physical and legal custody of Joey. On April 27, 2012, the court held a shelter hearing and ordered Joey to remain in DHS custody. Joey was placed with his great-aunt, Mary Jo. DHS maintained custody, and Mary Jo’s home served as the resource home.

¶ 4. On May 9, 2012, DHS filed a petition to adjudicate Joey as a sexually abused child. The court held an adjudication/disposition hearing eight days later. The court appointed Joey a GAL and an attorney, pursuant to Mississippi Code Annotated sections 43-21-121(1) and 43-21-201(1) (Rev. 2009). The only medical report prior to the adjudication hearing was made on May 10, 2012. Several family members testified at the hearing. Two of Joey’s aunts testified that Joey had stated that his brother “sucked his wee-wee.” Joey’s grandmother testified that Joey previously made similar comments to her about sexual activity with his brother. The hearing was continued pending testimony from Joey’s sister and a forensic report.

¶ 5. Several weeks later, the court heard testimony from Joey’s older sister. She testified that she saw her brother performing oral sex on Joey. She also stated that Joey’s mother was aware of the sexual abuse. DHS Family Protection Specialist Shimeka Jackson testified regarding the medical report from May 10, 2012, and a forensic-interview report from May 21, 2012. In the report from May 10, the forensic nurse stated she found no evidence of injuries to Joey. The nurse also stated that another report had been generated one year ago, but that the safety plan included in that report was not followed. The May 21 report was a forensic interview conducted in Oxford, Mississippi; the findings neither confirmed nor rejected the possibility of sexual abuse. DHS recommended Joey remain in its custody. The court adjudicated Joey a neglected child. The disposition order kept Joey in DHS custody and stated that reasonable efforts should be made towards reunification.

¶ 6. On September 20, 2012, one of Joey’s aunts filed a motion to intervene and transfer the case to chancery court. The court heard the motion on November 29, 2012. At the hearing, the aunt’s attorney stated that her client filed a petition for custody in chancery court and needed access to DHS records. The court later denied the aunt’s motion to intervene and transfer, along with the aunt’s request to access DHS records.

¶ 7. The court held a permanency hearing on March 7, 2013. The court reviewed the two reports from May 2012, in addition to several new reports. The court reviewed a medical report from August 26, 2012, that could neither confirm nor negate evidence of sexual abuse. On June 12, 2012, Katheryn Teague of the DeSoto Family Counseling Center conducted intake on Joey. Teague stated in her report that Sharon confirmed Joey’s brother had been exposed to pornography. She attributed the older brother’s early exposure to pornography as the cause of any alleged sexual offending behavior. Teague further stated that successful completion of an offender-specific program would lower the risk of future harm to Joey, and that the court should order Joey’s brother to complete an offender-specific program designed for children.

¶ 8. Teague met with Joey at least three more times, most recently a few days before the permanency hearing. Teague provided the court with a treatment summary, stating that Joey exhibited signs of a child who was not nurtured by a primary caregiver. During one of the therapy sessions, Joey told Teague that his brother “sucked my penis” five times. In her final recommendation, Teague stated that “the evaluation of the brother’s psy-chosexual [should] be taken into consideration in regard to his risk to re-offend before making a decision about reunification of the family.” She further stated that, “[i]f the brother is determined to be at risk for offending behavior, the therapist would not recommend placing [Joey] in the home unless the brother was first removed from the home.”

¶ 9. The DHS area social work supervisor recommended that Joey live with his mother for a ninety-day trial placement, based on the fact there was no documented proof of sexual abuse. Joey’s attorney agreed with DHS’s recommendation. The GAL, however, recommended that Joey remain in DHS custody, with continued visitation between Joey and Sharon. In its permanency order, the court detailed the failed efforts of DHS’s permanency plan for reunification. Sharon failed to complete several ISPs. In addition, the court referred to the court summary from the adjudication hearing, where DHS agreed that Joey would not be returned home until a therapist could confirm no risk factors were present. Finding no such confirmation in the record, the court awarded full legal and physical custody of Joey to Mary Jo. The court stated that it would retain jurisdiction for any further actions regarding Joey and released DHS from any monitoring responsibilities.. Sharon appealed.

DISCUSSION

¶ 10. Sharon’s parental rights were not terminated in this action. Therefore, we are directed to apply a reasonableness review, not the elevated review required when a parent’s rights are terminated. See In re C.R., 604 So.2d 1079, 1083 (Miss.1992). Our standard of review in youth court actions is limited:

The trier of fact at a Youth Court hearing is the Youth Court judge. When reviewing the evidence, we do not proceed de novo. Rather, when the Youth Court makes an adjudication of neglect, this Court considers all the evidence considered by the Youth Court in the light most favorable to the State. If the evidence so considered is opposed to the finding of the Youth Court with such force that reasonable men could not have found as the Youth Court did by a preponderance of the evidence, this Court must reverse. However, if there is substantial evidence in the record supporting the adjudication of the Youth Court, evidence of such quality and weight that, even under the “beyond a reasonable doubt” standard, the Youth Court might reasonably have ruled as it did, we must affirm.

In re D.O., 798 So.2d 417, 421 (¶ 13) (Miss. 2001) (internal citations omitted).

1. Adjudication of Neglect

¶ 11. Sharon claims there was insufficient evidence to adjudicate Joey as a neglected child. Mississippi Code Annotated section 43-21-561(3) (Supp.2014), states that “[i]f the court finds from a preponderance, of the evidence that the child is a neglected child, ... the youth court shall enter an order adjudicating the child to be a neglected child....”

¶ 12. Section 43 — 21—105(í) defines a neglected child as one:

(i) Whose parent, guardian or custodian or any person responsible for his care or support, neglects or refuses, when able so to do, to provide for him proper and necessary care or support, or education as required by law, or medical, surgical, or other care necessary for his well-being; however, a parent who withholds medical treatment from any child who in good faith is under treatment by spiritual means alone through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall not, for that reason alone, be considered to be neglectful under any provision of this chapter; or
(ii) Who is otherwise without proper care, custody, supervision or support; or
(iii) Who, for any reason, lacks the special care made necessary for him by reason of his mental condition, whether the mental condition is having mental illness or having an intellectual disability; or
(iv) Who, for any reason, lacks the care necessary for his health, morals or being.

[5] ¶ 13. “This Court ordinarinot ordinarily reverse a trier of fact unless it can be said with confidence that the finding was manifestly wrong.” In re S., 47 So.3d 715, 720 (¶ 31) (Miss.Ct.App.2010) (citing In re I.G., 467 So.2d 920, 924 (Miss.1985)). The judge heard testimony from four different family members. They all stated that Joey was being sexually abused by his brother. One of the family members provided eyewitness testimony of a sexual encounter between Joey and his brother. DHS testified to the details of the May 21 forensic interview, which neither confirmed nor rejected the allegations of sexual abuse. Based on the evidence presented, we cannot say with the confidence that the judge was manifestly wrong in his determination.

¶ 14. We find that considering the evidence in the light most favorable to the State, a reasonable person could have found, by a preponderance of the evidence, that Joey was neglected. We find this issue is without merit.

Reunification

[6]¶ 15. Sharon also argues that the youth court should have reunited her with her son instead of granting Mary Jo legal and physical custody. Specifically, Sharon claims the judge failed to take into account all of the medical evidence presented and ignored DHS employee testimony supsup-port of reunification.

¶ 16. Mississippi Code Annotated section 43-21-103 (Rev. 2009) provides the following applicable statement about our youth courts’ duties to children:

It is the public policy of this state that the parents of each child shall be primarily responsible for the care, support, education and welfare of such children; however, when it is necessary that a child be removed from the control of such child’s parents, the youth court shall secure proper care for such child.

¶ 17. In neglect and abuse cases, the disposition order may include the following alternative:

Place the child in the custody of his parents, a relative or other person subject to any conditions and limitations as the court may prescribe. If the court finds that temporary relative placement, adoption or foster care placement is inappropriate, unavailable or otherwise not in the best interest of the child, durable legal custody may be granted by the court to any person subject to any limitations and conditions the court may prescribe; such durable legal custody will not take effect unless the child or children have been in the physical custody of the proposed durable custodians for at least one (1) year under the supervision of the Department of Human Services. The requirements of Section 43-21-613 as to disposition review hearings does not apply to those matters in which the court has granted durable legal custody. In such cases, the Department of Human Services shall be released from any oversight or monitoring responsibilities.

Miss.Code Ann. § 43-21-609(b) (Rev. 2009). Although the court did not use the specific language “durable legal custody” in its permanency order, we can infer from the order that the court granted durable legal custody to Mary Jo based on the following: the court made no mention of “temporary relative placement”; Joey had been living with Mary Jo for at least one year at the time of the permanency hearing; the court specifically stated it would retain jurisdiction over any future matters regarding Joey, including visitation and child support; and the court relieved DHS from any monitoring responsibilities.

¶ 18. At the permanency hearing, the court reviewed all of Joey’s medical and forensic reports. The court heard testimony from DHS employees, Sharon, and the GAL. The court correctly stated that DHS failed to show that no risk factors existed as to Joey’s safety in Sharon’s home. Ultimately, the court found that it was in Joey’s best interest to be placed in durable legal custody of his great aunt. The supreme court held in In re S.A.M., 826 So.2d 1266, 1274-75 (¶ 19) (Miss.2002), that the paramount concern in determining the proper disposition of custody issues is the best interest of the child, not reunification of the family. We find that the youth court did not err in finding that it was in Joey’s best interest to grant Mary Jo durable legal custody. This issue is without merit.

3. GAL

¶ 19. Sharon also claims that Joey was adversely affected by the GAL’s conduct at the November 29, 2012 hearing on the aunt’s motion to intervene and transfer. At the hearing, the aunt’s attorney requested access to DHS records. The GAL participated in the court’s discussion of whether the Joey’s aunt had standing to review the records. Sharon claims that, based on the GAL’s participation, the court should have appointed another attorney for Joey.

¶ 20. The youth court is required to appoint a GAL in all cases involving an abused or neglected child that result in a judicial proceeding. Miss.Code Ann. § 43 — 21—121(l)(e) (Rev. 2009). Section 43-21-121(3) states:

In addition to all other duties required by law, a guardian ad litem shall have the duty to protect the interest of a child for whom he has been appointed guardian ad litem. The guardian ad litem shall investigate, make recommendations to the court or enter reports as necessary to hold paramount the child’s best interest. The guardian ad litem is not an adversary party and the court shall insure that guardians ad litem perform their duties properly and in the best interest of their wards. The guardian ad litem shall be a competent person who has no adverse interest to the minor. The court shall insure that the guardian ad litem is adequately instructed on the proper performance of his duties.

The GAL complied with the statute by submitting her recommendations to court and entering reports at the court’s request. When the GAL commented on the attorney’s request for access to records at the hearing, she was not arguing on behalf of Joey’s aunt. After careful review of the transcript from the November 2012 hearing, we find that the GAL was acting in the best interest of Joey. The court accepted the GAL’s report and her recommendations and followed them. This issue is without merit.

¶ 21. THE JUDGMENT OF THE COAHOMA COUNTY YOUTH COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The names of the individuals have been changed to ensure confidentiality.

      . The record indicates that Sharon is not the mother of Joey’s sister. The sister calls Sharon “Aunt Sharon’’ throughout the record.


author: CARLTON, J.,

text:
    William C. RODWELL, Appellant v. Michael CHRISMAN, Appellee.
    No. 2013-CA-00393-COA.
    Court of Appeals of Mississippi.
    Oct. 21, 2014.
    Eric D. Wooten, Gulfport, attorney for appellant.
    Stephen Walker Burrow, Pascagoula, attorney for appellee.
    Before IRVING, P.J., BARNES and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. The Harrison County Circuit Court granted Michael Chrisman’s motion for summary judgment in an action involving a foreclosure sale and default on the payment of promissory notes. William Rod-well argues that the circuit court erred in granting summary judgment and also erred in denying Rodwell’s motion for reconsideration. We dismiss for lack of jurisdiction due to Rodwell’s failure to file a timely notice of appeal.

FACTS

¶ 2. Mike Chrisman, William Rodwell, and Charles Tomasello formed CAL Investments LLC on February 2, 1998. The members of CAL formed several other related companies over the following two years before they terminated the business relationships through a purchase-and-sale agreement (PSA) dated January 20, 2000. Chrisman sold his ownership interest in CAL Investments to Rodwell and Tomasello. Rodwell and To-masello paid Chrisman $60,000 in cash and also executed a promissory note for $273,622, requiring monthly payments for ten years, with a final balloon payment due January 21, 2010. In May 2008, Rod-well and Tomasello defaulted on the note,owing a balance of $156,864.57. On April 8, 2008, Rodwell and Tomasello, on behalf of CAL Investments, executed a second note to Chrisman for $50,000. As security for the promissory notes, on May 6, 2008, CAL Investment executed guarantees to Chrisman for all liabilities and other indebtedness of CAL Investments. As further security for the promissory notes, CAL Investments granted Chris-man a deed of trust in certain real property located in Gulfport, Mississippi.

¶ 3. CAL, Rodwell, and Tomasello defaulted on their payments to Chrisman. On March 24, 2010, Chrisman sent a demand letter to CAL Investments, stating that they were in default on their payments and that if full payment of the amount due was not received by April 24, 2010, Chrisman would foreclose on the real property.

¶ 4. On August 24, 2010, after posting and publication of the Notice for Sale, the Trustee foreclosed on the subject real property. Chrisman offered the highest bid at the foreclosure, obtaining the real property for $8,000. On February 4, 2011, Chrisman then filed suit for the remainder of the money owed him, as well as attorneys’ fees and costs.

¶ 5. On April 26, 2011, Chrisman filed his first amended complaint. Between June 10, 2011, and July 25, 2011, Chrisman filed his application for entries of default against Rodwell, CAL, and Tomasello. The circuit clerk filed its entry of default on all three defendants.

¶ 6. On July 25, 2011, Eric Wooten, counsel for Rodwell and Tomasello, contacted Chrisman to inform him that, after receiving Chrisman’s complaint, he informed Rodwell and Tomasello of a potential conflict of interest, and that he would be unable to represent them in the matter. Wooten assumed that Rodwell and Toma-sello would contact their other counsel to represent them, but Rodwell and Tomasel-lo failed to understand Wooten’s instructions on the matter, and never retained different counsel. Upon hearing of the misunderstanding, Chrisman agreed to waive the conflict of interest and allow Wooten to represent Rodwell and Toma-sello, but refused to withdraw his motions for default.

¶ 7. On July 29, 2011, CAL, Rodwell, and Tomasello objected to Chrisman’s motion for default and disputed the trial court’s subject-matter jurisdiction to hear Chrisman’s claims. CAL, Rodwell, and Tomasello also filed a motion to transfer the case to chancery court. After filing the motion, CAL, Rodwell, and Tomasello assert that counsel for both parties discussed Chrisman’s failure to have the property appraised prior to the foreclosure of the deed of trust. On March 1, 2012, Chrisman filed a notice of hearing on the motion for default and on March 9, 2012, Chrisman filed a supplemental motion for a default judgment, or in the alternative, summary judgment. CAL, Rodwell, and Tomasello filed a motion objecting to Chrisman’s motion for summary judgment.

¶ 8. On April 20, 2012, the circuit court heard arguments on the following: (1) Chrisman’s supplemental motion for a default judgment, or in the alternative, summary judgment; and (2) CAL, Rodwell, and Tomasello’s motion to set aside default and motion for discovery. The circuit court granted partial summary judgment in favor of Chrisman, but found genuine issues of material fact to exist, including: the value of real property at issue at the date of the foreclosure; the manner in which Chrisman determined the price paid for the subject real property at the foreclosure sale; and the total amount of indebtedness owed to Chrisman by CAL, Toma-sello, and Rodwell. The circuit court also granted CAL, Tomasello, and Rodwell’s request for discovery, and allowed both parties to conduct discovery limited to the remaining issues.

¶ 9. On May 2, 2012, Wooten informed Chrisman of CAL and Tomasello’s decision not to pursue their defenses in the action, and attached a proposed consent judgment.

¶ 10. On May 22, 2012, Rodwell filed a motion for a protective order, requesting the circuit to restrict the discovery Chris-man propounded upon Rodwell to the three areas of limited discovery allowed by the circuit court. Chrisman then filed a motion to compel Rodwell to fully and completely answer requests for admissions, or in the alternative, deem certain requests admitted.

¶ 11. On May 28, 2012, the trial court entered an order setting aside the clerk’s entries of default against CAL, Rodwell, and Tomasello. However, the circuit court held that it indeed possessed jurisdiction over the matter, since Chrisman’s claims originated on two promissory notes for damages, which are “at law” claims and “do not sound exclusively in equity.”

¶ 12. On June 28, 2012, Rodwell filed a motion to compel responses to discovery and for a continuance, requesting the circuit court to order Chrisman to fully respond to the interrogatories and document requests propounded on him by Rodwell and to continue the trial, which the circuit court set for September 10, 2012.

¶ 13. On July 2, 2012, Chrisman filed a second motion for summary judgment, requesting the circuit court to grant summary judgment in favor of Chrisman for the balance due under the promissory notes after giving Rodwell credit for the value placed on the foreclosed real property by Rodwell’s appraiser.

¶ 14. The trial court granted Chris-man’s second motion for summary judgment, finding that under Mississippi law, no obligation existed for Chrisman to determine the value of the real property prior to the foreclosure sale. The circuit court further held that Mississippi law only required Chrisman to give Rodwell credit for the fair value of the property against the balance due under their promissory notes, which Chrisman did through the reduced demand for judgment in his second motion for summary judgment. The circuit court found whether the sales price at the foreclosure was lower than the property’s fair value to be irrelevant, and ordered that Rodwell pay Chrisman $308,880.85, with post-judgment interest at the rate of seven percent per annum on the principal sums owed on each note from July 80, 2012, until paid in full, attorney’s fees of $64,720.21, and costs and expenses of $784.64. The circuit court denied Rod-well’s motion for a protective order and motion to compel, and Chrisman’s motion to compel, finding these motions to be moot. On September 13, 2012, the circuit court entered its final order and judgment. On October 15, 2012, the trial court entered a consent, final judgment against CAL and Tomasello.

¶ 15. Rodwell filed a motion to reconsider, asserting that certain factual findings in the order and judgment failed to accurately reflect the record. On January 28, 2013, the trial court denied Rodwell’s motion for reconsideration of the September 13, 2012 order and judgment, as well as the final judgment entered that same day. The trial court’s order denying the motion for reconsideration was dated and filed January 28, 2013.

¶ 16. On February 28, 2013, Rodwell filed a notice of appeal from the trial court’s denial of his motion for reconsideration. The notice of appeal was dated and filed February 28, 2013. This appeal followed.. On March 20, 2013, Chrisman filed a motion to docket and dismiss Rodwell’s appeal as untimely filed, asserting that Rodwell filed his notice of appeal thirty-one days after the trial court’s denial of Rodwell’s post-trial motion. That motion was denied by the Mississippi Supreme Court in an order dated April 24, 2013, and the appeal was subsequently assigned to this Court.

¶ 17. On appeal, Rodwell asserts several issues before this Court for review: (1) whether the trial court erred in granting Chrisman’s motion for summary judgment, and in finding there were no material facts in dispute and that Chrisman was entitled to summary judgment; (2) whether the trial court erred in finding that it possessed jurisdiction to hear Chrisman’s claim; (3) whether the trial court erred by denying Rodwell’s Mississippi Rule of Civil Procedure 56(f) motion for additional time to conduct discovery; (4) whether the trial court erred by refusing to compel Chris-man to respond to RodwelPs discovery requests; (5) whether the trial court erred by not allowing a jury to decide whether Chrisman was entitled to a deficiency judgment against Rodwell in equity; (6) whether the trial court erred in finding Chrisman conducted the foreclosure at issue in a commercially reasonable manner; (7) whether the trial court erred in denying Rodwell’s motion for reconsideration and ruling on the merits of three motions it denied ore tenus as moot; and (8) alternatively, if Chrisman is entitled to a deficiency judgment against Rodwell, which is denied, whether the trial court erred in its calculation of the amount due Chrisman and its calculation of attorneys’ fees.

¶ 18. We find dispositive that Rodwell filed his notice of appeal untimely, and therefore we decline to address the remaining assignments of error raised.

DISCUSSION

¶ 19. With respect to the notice of appeal, we must first address whether this Court possesses jurisdiction to hear Rod-well’s appeal. Chrisman argues that Rod-well filed his notice of appeal thirty-one days after the trial court’s denial of Rod-well’s motion for reconsideration. The record reflects that on January 28, 2013, the trial court denied Rodwell’s motion for reconsideration. On February 28, 2013, Rodwell then filed a notice of appeal from the trial court’s January 28, 2012 denial of Rodwell’s motion to reconsider the trial court’s previous September 13, 2012 order and judgment, as well as the final judgment entered that same day. Our review of the record reflects Rodwell indeed filed his notice of appeal thirty-one days after the trial court denied his motion for reconsideration, and therefore, Rodwell filed an untimely notice of appeal.

¶ 20. Mississippi Rule of Appellate Procedure 4 states that a notice of appeal is to be filed within thirty days of the judgment or from the denial of certain post-trial motions. M.R.A.P. 4(a)(d) & (e). Generally, an appeal shall be dismissed unless the notice of appeal is timely filed pursuant to Rule 4 or 5. M.R.A.P. 2(a)(1). See Hunt v. State, 11 So.3d 764, 766 (¶5) (Miss.Ct.App.2009).

¶ 21. As a result, this Court possesses no jurisdiction to hear the instant appeal, and Rodwell’s appeal should be dismissed pursuant to Rule 2 of the Mississippi Rules of Appellate Procedure. See Byrd v. Biloxi Reg’l Med. Ctr., 722 So.2d 166, 170 (¶ 14) (Miss.Ct.App.1998). We find that the issue of jurisdiction is dispositive; hence, this Court will not address the remaining assignments of error raised herein. See Edmond v. State, 991 So.2d 588, 590 (¶ 6) (Miss.2008).

¶ 22. THIS APPEAL IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ„ CONCUR. IRVING, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . See M.R.A.P. 4; see also M.R.C.P. 6(a).

      . CAL, Rodwell, and Tomasello specifically requested that the circuit court grant them time to conduct discovery.

      . See also M.R.C.P. 6(a).

      . Per Mississippi Rule of Appellate Procedure 4, after the trial court denied his motion for reconsideration on January 28, 2013, Rodwell possessed thirty days to appeal the circuit court’s decision. M.R.A.P. 4(a). Since Rod-well filed his notice of appeal on February 28, 2013, he filed the notice outside the thirty-day time limit set forth in Rule 4(a). Although Rodwell filed his notice of appeal one day outside of the thirty-day time limit, and we recognize that "[t]he time limits for perfecting an appeal are strictly enforced, and filing the notice even one day late requires dismissal of the action.” Redmond v. Miss. Dep’t of Corr., 910 So.2d 1211, 1212 (¶4) (Miss.Ct.App.2005) (citing Tandy Elecs., Inc. v. Fletcher, 554 So.2d 308, 310-11 (Miss. 1989)). The record contains no motion by Rodwell requesting an extension of time to file the appeal or an order granting an extension of time to file the appeal after the trial court's dismissal of Rod-well’s motion to reconsider. Consequently, Rodwell filed an untimely appeal. See Penn v. State, 909 So.2d 135, 136 (¶ 6) (Miss.Ct.App. 2005).