author: LAMAR, Justice, KITCHENS, Justice,

text:
    Rico VEAZY and Brandon Mosley a/k/a Brandon Duane Mosley v. STATE of Mississippi.
    No. 2011-KA-00077-SCT.
    Supreme Court of Mississippi.
    March 14, 2013.
    Rehearing Denied June 13, 2013.

      Charles E. Griffin, Ridgeland, attorney for appellants.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
   LAMAR, Justice,

for the Court:

¶ 1. Rico Veazy and Brandon Mosley were convicted of armed robbery and were sentenced to eight years and ten years, respectively, in the custody of the Mississippi Department of Corrections (MDOC) after being tried together in the Bolivar County Circuit Court. The robbery involved a Mustang vehicle belonging to Veazy but undergoing repairs by mechanic Jimmy Smith, who maintained that the vehicle was taken from his automobile repair shop at gunpoint. Finding no merit in any of the defendants’ issues, we affirm the judgment of the circuit court.

FACTS AND PROCEEDINGS IN TRIAL COURT

¶2. At some point in February 2010, Veazy had his 1989 Ford Saleen Mustang brought to Jimmy’s Repair Shop, owned by mechanic Jimmy Smith, in Cleveland. Three of the vehicle’s tires were slashed, the windshield was badly damaged, and the transmission was “locked up.” Smith repaired the transmission and replaced other parts, and Veazy’s mother, Bobby Veazy, paid the bill for this work. After this payment, Smith did other work on the car, including purchasing various parts with his own funds and installing them. The parties dispute whether this additional work was requested or authorized by Veazy.

¶ 3. On July 9, 2010, Veazy came into Smith’s shop, accompanied by Brandon Mosley, who was unknown to Smith at the time. Veazy and Mosley joined Smith inside his office. At this point, the testimony of the defendants and Smith diverges dramatically. According to Smith, he began working on a ticket for the work done, and Veazy and Mosley agreed to wait while it was drawn up. Mosley surreptitiously positioned himself behind Smith and then placed a pistol to his head, demanding the keys to the Mustang. Smith testified that, at this point, he feared for his life.

¶ 4. Smith told Veazy that the keys were hidden elsewhere on the property, and that Veazy should not shoot him if he wanted the keys. Smith testified that he believed that he would have been killed had the keys been with him in the room. Smith then left his office, collected the keys from a hot water vat in which he had kept them hidden, and led the defendants to the Mustang, which he proceeded to start. The defendants followed Smith closely on the walk to the vehicle, with Mosley keeping the gun concealed with a small towel. At no point during this sequence did Veazy pay for the work done or the parts installed in his vehicle.

¶ 5. Veazy and Mosley got into the car and began to drive off. Smith then ran to his truck and collected a firearm. He shouted to his employees to call 9-1-1. Smith testified that Veazy was backing up and that he believed one of his mechanics, Jose Rojas, was in danger of being run over. Smith therefore fired at the vehicle three times to prevent Veazy from injuring or killing Rojas. These warning shots resulted in the back windshield of the Mustang being blown out.

¶ 6. Smith’s testimony was corroborated in part by Rojas and two other mechanic-employees, Sammy Murray and Donny Berryhill, who were working at the shop on that day. Smith was the only witness who testified to seeing Mosley with a gun. But the three mechanic-employees, Rojas, Murray, and Berryhill, testified that Smith shouted for someone to call 9-1-1 because someone had a gun.

¶ 7. Veazy and Mosley testified to a very different sequence of events. According to Veazy, he authorized work only on the transmission, windows, and new tires. He claimed that Smith rebuilt the engine, worked on the heads of the engine, replaced a mirror, did body work, and balanced the tires without his authorization. Veazy stated that on July 9, 2010, he collected the vehicle from Smith without confrontation, anger, or ever exhibiting a firearm. He stated that he did not even have a firearm at the time, and was unaware of whether Mosley had a weapon. Veazy did state that Smith had prepared a ticket for him when he collected the vehicle, but he believed that this ticket was merely a copy of one already paid by his mother, Bobby. Rico believed that all work had been paid for.

¶ 8. Veazy stated that Smith had cranked the car himself and then handed the key to Veazy. However, as Veazy and Mosley began to leave the premises in the Mustang, Smith began yelling and then started firing upon the vehicle. Veazy was surprised by this behavior and did not know why Smith had shot at him. Mosley similarly testified that he came to the shop with Veazy unarmed, and never exhibited a weapon. Mosley did testify that if he had exhibited a weapon, he did not think he would admit having done so. Mosley confirmed that after he and Veazy had obtained the car without incident, Smith had begun to fire upon the vehicle without apparent provocation.

¶ 9. After driving off after the incident, Veazy and Mosley left the car behind a barn on the side of Highway 8 East. Veazy testified that he abandoned the vehicle because it ran out of gas. Despite having been fired upon without apparent cause, neither defendant attempted to alert the police to Smith’s actions. Later that same day, Veazy turned himself in to the Cleveland Police Department. However, he testified at trial that he did not know that he was wanted by the police until the next day. Veazy stated that he turned himself in after his mother received a phone call, but he did not state who made the call or what information was conveyed.

¶ 10. The trial for Veazy and Mosley commenced on November 29, 2010, and concluded on December 2, 2010. They both were convicted of armed robbery. Veazy received an eight-year sentence and Mosley received a ten-year sentence, both to be served in the custody of the MDOC. Veazy and Mosley filed separate appellate briefs but asserted the same assignments of error: (1) that the trial court erred in refusing to quash the indictment; (2) that the property set out in the indictment was not “the personal property of another” for purposes of Mississippi Code Section 97-3-79 (Rev.2006); (3) that the trial court erred in refusing to permit testimony concerning the intent of the defendants and for the purpose of impeaching Jimmy Smith’s testimony; and (4) that the trial court erred in refusing a jury instruction concerning criminal intent. We find that all of these issues lack merit, and we affirm the judgment of the circuit court.

DISCUSSION

A. The Indictment

¶ 11. The first two issues are closely related — both addressing the same perceived flaw in the indictment — and may be addressed together. Armed robbery is defined as follows:

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery....

Miss.Code Ann. § 97-3-79 (Rev.2006). Robbery has three essential elements: “(1) felonious intent, (2) force or putting in fear as a means of effectuating the intent, and (3) by that means taking and carrying away the property of another from his person or in his presence.” Croft v. State, 992 So.2d 1151, 1157 (Miss.2008) (quoting Walker v. State, 913 So.2d 198, 223 (Miss. 2005)). Armed robbery requires the additional element of exhibition of a deadly weapon. Clark v. State, 756 So.2d 730, 732 (Miss.1999) (stating “[T]he proof of the crime of armed robbery must necessarily include that the exhibition of the deadly weapon, causing violence or fear of immediate injury, was the means by which the personal property of another was taken.”).

¶ 12. The defendants allege that the third element of armed robbery was not met, in that the State alleged no “property of another” that could have been stolen, and that the defendants were therefore entitled to judgment notwithstanding the verdict (JNOV). They argue that it is undisputed that the Ford Mustang was the property of Veazy. The State maintains that Smith had the rightful possession of the vehicle, since “[a]ll motor vehicles repaired for any person, and at his instance, shall be liable for the price of the labor and material employed in constructing, manufacturing or repairing the same; and the mechanic to whom the price of said labor and material may be due shall have the right to retain possession of such motor vehicles so repaired until the price be paid.” Miss.Code Ann. § 85-7-107 (Rev. 2011) (emphasis added). However, the defendants maintain that the unpaid balance represented certain repairs performed by Smith but not authorized by Veazy. Furthermore, the defendants contend that, even if Smith maintained a possessory interest in the vehicle, it was still not his property under the meaning of the armed-robbery statute.

¶ 13. The defendants also contend that the trial court erred in failing to quash the indictment. The indictment against the defendants stated, in part, as follows:

RICO VEAZY AND BRANDON MOSLEY, late of the County and Judicial District aforesaid, on or about July 9, 2010, in the County, Judicial District and State aforesaid, and within the jurisdiction of this Court, individually or while aiding and abetting and/or acting in concert with each other, did unlawfully, willfully and feloniously, take a Ford Mustang containing or to which was affixed, the property of Jimmy Smith or Jimmy’s Repair Shop, Inc., by way of repair and/or parts placed by Jimmy’s Repair Shop, Inc., from the person or presence of and against the will of Jimmy Smith by violence to his person or by putting him in fear of immediate injury to his person by the exhibition of a deadly weapon, a pistol, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Mississippi.

(Emphasis added.) The defendants argue that this indictment alleged no property that could have been stolen. They note that the State may not pursue a “general” indictment alleging theft without alleging the specific property in question. See Khang Son Nguyen, et al. v. State, 761 So.2d 873 (Miss.2000).

¶ 14. The determinative question for both issues, then, is whether a person may commit robbery by taking through force or the threat of force his own property, when another (as, here, an uncompensated mechanic) has the right of possession of that property. This is a relatively unusual fact pattern, but it is not an issue of first impression in Mississippi. Both the defendants and the State cite the case of Herron v. State, 176 Miss. 795, 170 So. 536 (1936), which bears some similarity to this case.

¶ 15. In Herron, Charlie Morris made a trade with Tom Herron, the father of defendant Lehman Herron, to sell him a mule, taking as part payment a mare, along with a cash payment of $50 and a note for the balance. Morris maintained control of the mare in the interim, and he and Frank Kineade were leading the mare to be bred when, according to the State’s witnesses, the two Herrons confronted them and demanded possession of the mare at gunpoint. Lehman Herron, at trial, insisted that he never exhibited a gun. The Herrons took the mare home, and that same day attempted to deliver the mule to Morris, but he refused to accept it. Lehman Herron contended that the evidence was insufficient, under law, to maintain a conviction, since the mare was his property.

¶ 16. This Court found otherwise, determining that, since the mare was merely pledged to secure a cash payment, “Morris still was the rightful owner of the mare, and had, at all events, title of possession and a lien for the purchase price of $50 in cash to be paid for the mule. This was a sufficient title in Morris to sustain the allegations of property in him, and to make out his ownership of the property.” Herron, 170 So. at 537-38. This Court went on to hold that “ [i]f the appellant had the right to the immediate possession, the taking might not constitute robbery, but only trespass, but here he had no right of possession, and knew the facts which gave Morris possession of the property.” Id. at 538. This Court also approvingly quoted the Texas case of Fanin v. State, stating that:

We are not willing to lay down the proposition that if a man collects a debt by force and threats, and putting in fear, he will not be guilty of robbery. There might be peculiar facts and circumstances which would exonerate him, and which the jury might consider in mitigation of the punishment, but no man has a right, as we understand the law, to take the law in his own hands, and at the point of a six-shooter, putting his debtor in fear of his life or serious bodily injury, collect a debt, however just, and then defend against it, on the ground that the property was not fraudulently taken because appellant owed him the money, and would not pay him. This is more than a simple trespass, and it will be a dangerous doctrine to hold that a man can thus collect his debts.

Herron, 170 So. at 538 (citing Fanin v. State, 51 Tex.Crim. 41, 45, 100 S.W. 916, 918 (Tex.Crim.App.1907)). Since Herron, it has consistently remained the law of this State that debts should not be collected, in the charmingly archaic language of Fanin, “at the point of a six-shooter,” or otherwise by force or threat of force.

¶ 17. Several decades after Herron was decided, this Court addressed a similar instance of what might be considered vigilante debt collection. In Freddie Lee Williams v. State, 317 So.2d 425 (Miss. 1975), this Court was confronted with the case of a defendant who attempted to collect a refund on recently purchased shoes at gunpoint. Williams had purchased a pair of shoes for $25.15 on February 9, 1974, and, according to him, was informed by the sales clerk that the shoes could be returned if they did not fit. On February 11, 1974, Williams attempted to return the shoes for a refund or exchange, but was informed that the store would not accept scuffed shoes. Angrily, Williams returned later in the day with a pistol. At gunpoint, Williams returned the shoes, displayed the sales slip, and demanded exactly the sales amount, $25.15, and no more, from the cash register. This Court was unable to “accept appellant’s argument that his alleged ‘good faith’ taking of a sum of money entitled him to a peremptory instruction.” Williams, 317 So.2d at 427. This Court cited Herron and Fanin with approval, and determined that:

The record shows that the appellant brazenly entered the store, cocked his pistol, disturbed the peace, harassed the store employees, aimed the loaded pistol at Reynolds, called him a son-of-a-bitch an [sic] in “wild-west” fashion took at gun point money-the property of another. Such violent self-help as a means of obtaining redress for grievances concerning property rights is inimical to order and the appropriate administration of justice. It would be most unjudi-cious to accept his argument that such a caper was done in good faith without animus furandi, and that, therefore, the case should not have gone to the jury.

Williams, 317 So.2d at 428.

¶ 18. In today’s case, it is well established that, while Veazy had title to the Mustang, Smith had the right of possession of the Mustang through his mechanic’s lien under Mississippi Code Section 85-7-107. See also J.A. Broom & Son v. S.S. Dale & Sons, 109 Miss. 52, 67 So. 659 (1915) (holding that the holder of a mechanic’s hen takes precedence over the rights of the holder of a reserved title to an automobile). After reviewing this State’s longstanding jurisprudence on the issue, we are convinced that robbery relates to possession of property, not to title. It is well established that a robber cannot acquire title to property by seizing it forcibly. Allstate Ins. Co. v. Estes, 845 So.2d 265, 266 (Miss.1977). At best, he can acquire unlawful possession without title. Indeed, a thief also may steal goods in which the victim has no legal title. This Court has held that contraband liquor-in which a person can have no titled ownership interest-may be the subject of a larceny or a robbery. Passons v. State, 208 Miss. 545, 45 So.2d 131, 134 (1950) (overruled on other grounds). More recently, the Court of Appeals has extended this holding to the theft of illegal narcotics. Woods v. State, 883 So.2d 583, 588 (Miss. Ct.App.2004).

¶ 19. Furthermore, in Bullock v. State, 391 So.2d 601, 609 (Miss.1980), a capital-murder case, there was some dispute as to whether a car taken from the victim during the course of a robbery and murder actually belonged to the victim. The issue was found to be moot where the testimony was undisputed that the victim was in possession of the vehicle, with this Court specifically holding that “[a]n indictment charging robbery or larceny of property is properly laid in the party having possession, either as owner, bailee or agent.” Id. at 609 (citations omitted).

¶ 20. Finally, the defendants suggest that the Legislature did not intend for the armed robbery statute, Mississippi Code Section 97-3-79 (Rev.2006), to go so far as to cover the forcible taking of property subject to a lien. In support of this argument, the defendants cite Mississippi Code Sections 97-17-77, criminalizing the removal of property subject to an out-of-state lien; 97-17-75, criminalizing the removal or sale of property subject to an out-of-county lien; and 97-19-51, criminalizing the sale of personal property previously sold or encumbered. The defendants note that “[w]hen different code sections deal with the same subject matter, these sections are to be construed and interpreted not only so they harmonize with each other but also where they fit into the general and dominant policy of the particular system of which they are part.” Andrews v. Waste Control, Inc., 409 So.2d 707, 713 (Miss.1982). However, the statutes cited by the defendants do not apply to a case like today’s case, where encumbered personal property is taken by force or the threat of force; nor do these statutes demonstrate a general legislative intent to exclude property subject to liens from the application of the robbery statute.

¶ 21. In line with Mississippi precedent, this Court finds that, when a person takes property in which he himself maintains title, but which is legally in the possession of the victim, by force or threat of force by exhibition of a deadly weapon, the armed-robbery statute applies. Accordingly, it was not error for the trial court to refuse to quash the indictment, and the defendants were not entitled to a JNOV on these grounds. We therefore find that the defendants’ first and second assignments of error are without merit.

B. Hearsay

¶ 22. The defendants contend that, on a series of occasions, the trial court erred in failing to permit Bobby and Rico Veazy to introduce hearsay testimony regarding comments allegedly made by Jimmy Smith. They contend that the denial of these statements “denied due process and rendered the trial fundamentally unfair.” A trial court’s decisions as to admitting and refusing evidence are reviewed under an abuse-of-discretion standard, and this Court will not reverse for reason of error in an evidentiary decision unless it is shown that the error adversely affected a substantial right of a party. Hargett v. State, 62 So.3d 950, 952-53 (Miss.2011). We find that the statements the defendants sought to admit constituted inadmissible hearsay to which no exceptions applied, and the trial court therefore committed no error in denying the admission of the statements.

¶ 23. As to the one instance of hearsay testimony that would have been introduced by Bobby Veazy, Veazy’s attorney made a proffer after Bobby’s testimony was excluded, stating that he believed “the testimony would be that Mr. Smith, the complaining witness in this case, did, in fact, call her immediately after this event occurred; that Mr. Smith told her that he had just shot out the car window, the back window of Rico Veazy’s vehicle; that he had seven bullets left, and he would finish [Veazy] off when he sees him.” We determine that this evidence was properly excluded; not only was it clear hearsay that did not fall under any hearsay exception, the statement also was irrelevant to our case today. Smith was not charged with any crime in this case. Additionally, both the shooting out of the window and the alleged threat occurred after the robbery of the vehicle. Even if the testimony were relevant, the probative value of such a statement was substantially outweighed by the danger of unfair prejudice. Miss. R. Evid. 403.

¶ 24. The record does not show the content of the hearsay statements of Smith that Veazy would have offered. Veazy attempted to testify as to statements made by Smith on at least three separate occasions. At each of these instances, the State objected on hearsay grounds, and the objections were sustained. The defendants did not attempt to dispute the trial court’s ruling and made no proffer of what Veazy would have stated. The defendants further assert that the State was permitted to introduce hearsay testimony through its own witnesses, but they give no examples of this and we find none in the record. Even assuming that the State was improperly permitted to introduce hearsay testimony, a party cannot “open the door” to hearsay. Mixon v. State, 921 So.2d 275, 278 (Miss.2005) (citing Murphy v. State, 453 So.2d 1290, 1294 (Miss.1984)).

¶ 25. The defendants attempted to introduce the various hearsay statements, relying in part upon Mississippi Rule of Evidence 803(24), the “catch-all” hearsay exception. At trial, defense counsel also mentioned Mississippi Rule of Evidence 803(1), the “present-sense impression” exception, but this argument has not been raised on appeal. On appeal, the defendants also attempt to raise Mississippi Rule of Evidence 803(3), the hearsay exception for a then — existing mental, emotional, or physical condition; however, this argument was never raised at trial and therefore need not be considered. See, ie., Chantey Music Publ’g, Inc. v. Mataco, Inc., 915 So.2d 1052, 1060 (Miss. 2005), holding that “[t]his Court [will] not entertain arguments made for the first time on appeal.

¶ 26. The defendants also contend that they should have been permitted to make these hearsay responses under Mississippi Rule of Evidence 106, Mississippi’s codification of the common-law doctrine of completeness.

¶ 27. We find that the various statements that the defendants assert should have been admitted all constituted inadmissible hearsay to which no exception has been shown to apply. The defendants have failed to show that the trial court abused its discretion in denying the admission of the statements. This assignment of error is without merit.

C. Jury Instructions

¶ 28. In their final assignment of error, the defendants contend that the trial court failed to instruct the jury on the issue of criminal intent. The defendants note our holding that:

The court must so instruct the jury in every robbery case, and must in some sufficient form explain and define the term “felonious intent.” The extent of the definition required depends upon the evidence in the particular case. State v. Spratt, 265 N.C. 524, 144 S.E.2d 569 [ (1965) ]. In some cases, as where the defense is an alibi or the evidence develops no direct issue or contention that the taking was under a bona fide claim of right or was without any intent to steal, “felonious intent” may be simply defined as an “intent to rob” or “intent to steal.” State v. Spratt, supra. On the other hand, where the evidence raises a direct issue as to the intent and purpose of the taking, a more comprehensive definition is required.

Thomas v. State, 278 So.2d 469, 473 (Miss.1973) (citations omitted). The defendants argue that, in this case, the trial court erred in sustaining the State’s objection to jury instruction D-7, which would have informed the jury that:

The State of Mississippi is required to prove beyond a reasonable doubt that Rico Veazy took the personal property of Jimmy Smith and/or Jimmy’s Repair Shop with the intent to permanently deprive Jimmy Smith and/or Jimmy’s Repair Shop of said property.
The Ford [Mjustang is the property of Rico Veazy.
If you find that the only personal property taken by Rico Veazy was the Ford [Mjustang, the law requires you to find Rico Veazy not guilty.

The State objected to this instruction on the ground that there is no requirement in an armed-robbery case that an accused must be proven to have intended to permanently deprive the victim of possession of the property. The trial court denied it as, in part, cumulative to the instruction on the elements of armed robbery.

¶ 29. At this point, the defense indicated that it would not object to the striking of the “permanently deprive” language. The Court then noted that there was no testimony that Smith owned the Mustang, but that he might well have had a lien. The defense agreed, but asserted that Smith had no right to hold the vehicle and that the jury might be confused without an instruction on whether Smith had acquired an ownership interest. The Court then offered to give an amended version of D-7. The State and the defense both stated that they would have no objection if the instruction informed the jury that a mechanic to whom the price of labor or material is due shall have the right to retain possession; however, the defense wanted to add language that repair or parts installed had to be done at the owner’s direction. The apparent result was Instruction D-8, which was offered to the jury, and reads as follows:

Under Mississippi law, a repair shop does not acquire an ownership interest in a motor vehicle by virtue of performing repairs or placing parts on the motor vehicle at the instance of the owner. Jimmy Smith and/or Jimmy’s Repair Shop did not acquire an ownership interest in Rico Veazy’s Ford Mustang by virtue of any repairs or parts placed on the motor vehicle.
However, the mechanic to whom the price of said labor and material may be due shall have the right to retain possession of such motor vehicle so repaired until the price has been paid.

The record shows that the defendants consented to the substitution of D-8 for D-7, and in so doing effectively withdrew or abandoned their request for D-7. At a more fundamental level, proposed Jury Instruction D-7 was erroneous in that it would have suggested to the jury that a person cannot be guilty of armed robbery if someone other than the victim has title to the property taken. As discussed above, this is not the case. The trial judge correctly refused an instruction that would have included an erroneous statement of the law. For all of the above reasons, we find that this assignment of error, too, lacks merit.

CONCLUSION

¶ 30. Based on today’s discussion, we find no merit in any of the defendants’ assignments of error. Thus, we affirm the judgment of the Circuit Court for the Second Judicial District of Bolivar County.

¶ 31. AS TO RICO VEAZY: CONVICTION OF ARMED ROBBERY AND SENTENCE OF EIGHT (8) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CONDITIONS, AFFIRMED. SENTENCE SHALL RUN CONSECUTIVELY TO ALL PRIOR SENTENCES.

¶ 32. AS TO BRANDON MOSLEY: CONVICTION OF ARMED ROBBERY AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CONDITIONS, AFFIRMED. SENTENCE SHALL RUN CONSECUTIVELY TO ALL PRIOR SENTENCES.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., PIERCE, KING AND COLEMAN, JJ., CONCUR. KITCHENS, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER, J.

KITCHENS, Justice,

specially concurring.

¶ 33. The great Muddy Waters himself could not have done a better job than the appellants and their able counsel of trying to “muddy the waters” of this case. Yet, this remains a straightforward and simple armed robbery case, and I join the majority in affirming the convictions. However, I write separately to suggest, with utmost respect to the majority, that affirmance could have been achieved with considerable economy of verbiage.

¶ 34. The indictment properly charged Veazy and Mosley with armed robbery by saying, in essence, that they stole auto parts that belonged to Smith, from Smith’s presence and against Smith’s will, by putting Smith in fear of immediate injury to his person by the exhibition of a deadly weapon, namely, a pistol. While the indictment does contain some surplusage, that is the thrust of it, and that is the State’s theory of the case. The jury was properly instructed, consistent with the charging language of the indictment.

¶ 35. Even though the defendants vigorously disputed and valiantly defended against the accusation laid in the indictment, the proof of guilt was sufficient, and they were duly convicted. Smith’s claim of a mechanic’s lien on Veazy’s automobile, a vehicle which contained components that still belonged to Smith because Veazy had not paid for them, is relevant only to the extent that it supports the State’s contention that Smith did not willingly part with the automobile parts. In short, the defendants were not prosecuted for stealing Veazy’s own car; they were prosecuted for, and convicted of, stealing, at gunpoint, Smith’s automobile parts that were affixed to Veazy’s car.

¶ 36. Thus, the majority’s protracted analysis about debts and liens, in my humble opinion, is superfluous and unnecessary. I would have traveled a much shorter route to arrive at the same destination as that reached by my esteemed colleagues in the majority.

CHANDLER, J., JOINS THIS OPINION.

      . Mrs. Veazy's name is sometimes spelled “Bobbie” and "Bobbi” in the briefs, but it is spelled “Bobby” in the trial transcript.

      . Although there was some dispute at trial as to whether Rico and Bobby Veazy had authorized some of the work on the car, this was an issue of fact that was resolved by the jury when it determined that a robbery had occurred. The jury was properly instructed in the relevant law, with Jury Instruction D-8 providing that:
      Under Mississippi law, a repair shop does not acquire an ownership interest in a motor vehicle by virtue of performing repairs or placing parts on the motor vehicle at the instance of the owner.
      Jimmy Smith and/or Jimmy's Repair Shop did not acquire an ownership interest in Rico Veazy's Ford Mustang by virtue of any repairs or parts placed on the motor vehicle.
      However, the mechanic to whom the price of said labor and material may be due shall have the right to retain possession of such motor vehicle so repaired until the price has been paid.

      (Emphasis added.)

      . Muddy Waters was the stage name of McKinley Morganfield (1913-1983), renowned Mississippi blues musician.


source: Caselaw Access Project

author: COLEMAN, Justice,

license: Public Domain

text:
    Paul TYLER v. AUTOMOTIVE FINANCE COMPANY, INC.
    No. 2012-CA-00366-SCT.
    Supreme Court of Mississippi.
    April 4, 2013.
    Rehearing Denied June 13, 2013.

      Richard Shane McLaughlin, Nicole H. McLaughlin, Tupelo, attorneys for appellant.

      Robert J. Dambrino, III, Jay Gore, III, Grenada, Ashley Nobile Lane, attorneys for appellee.
    Before DICKINSON, P.J., PIERCE and COLEMAN, JJ.
   COLEMAN, Justice,

for the Court:

¶ 1. The trial court granted summary judgment in favor of the plaintiff, Automotive Finance Company, after the defendant, Paul Tyler, failed to respond in a timely manner to a request for admissions. Tyler’s appeal rests on the assertion that he was not properly served with either the request for admissions or the following motion for summary judgment. The trial court entered an order deeming the unanswered request admitted. Based upon the evidence contained within the admissions, the court also granted Automotive Finance’s motion for summary judgment. Well after the trial court entered a final judgment, Tyler filed a motion to amend his admissions, which the trial court denied. Tyler is appealing both the order denying reconsideration of summary judgment and the order denying his post-final-judgment motion to amend the admissions. Finding no error on the part of the trial court, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Jim Earl Aron, sole stockholder in Automotive Finance Company, sold all of his stock in the company to Paul Tyler for $2.5 million to be paid over time to Aron. After what Aron perceived as poor management of the company, leading to a loss of revenue for both Automotive Finance and Tyler, Aron repurchased the company from Tyler in exchange for releasing Tyler from his indebtedness on the remainder of the $2.5 million obligation. After repurchasing the company and analyzing its records, Aron found what he believed to be dishonest business practices and brought suit as Automotive Finance against Tyler in bankruptcy court on March 4, 2004. Tyler was represented in bankruptcy court by attorney William Griffin, an. attorney with Shelton and Associates in Tupelo, Mississippi. The bankruptcy court transferred the case to the Circuit Court of Calhoun County on February 14, 2006.

¶ 3. On April 19, 2006, counsel for Automotive Finance, Adam Kirk, propounded interrogatories to Griffin at “P.O. Box 1862, Tupelo, MS,” with no street number. This was the same address to which Kirk sent a copy of his notice of appearance on April 20, 2005, and the address provided for Griffin in the bankruptcy proceedings.

¶4. However, in a letter dated April 2006, Shelton and Associates informed Kirk that Griffin was no longer with the firm and provided Griffin’s address as “P.O. Box 1692, Tupelo, MS.” Both the 1692 and the 1362 post office box numbers appear in the bankruptcy court proceedings. On May 24, 2007, Kirk sent the request for admissions to Griffin at “336 N. Broadway.” Kirk received no response to the request for admissions, and on July 9, 2007, Kirk filed a motion with the court clerk to deem the unanswered request admitted, and served a copy upon Griffin at “336 N. Broadway, P.O. Box 1692 Tupelo, MS 38802.” The motion hearing was set by the court for November 2, 2007.

¶ 5. Jon Crump, an attorney with Shelton and Associates, entered an appearance for Tyler on October 30, 2007. Crump requested a continuance on the hearing, and it was reset for January 30, 2008. When the hearing date arrived, Crump did not attend. Instead, Christopher Bauer, another attorney with Shelton and Associates, appeared on behalf of Tyler. After Automotive Finance argued in favor of its motion, the trial judge gave Tyler a chance to offer responsive argument. Bauer stated that the defense had “no response at all.” On February 8, 2008, the trial court deemed the unanswered request admitted.

¶ 6. No activity took place in the case from February 2008 until March 17, 2010, when the clerk moved to dismiss the case as stale. On September 23, 2010, Automotive Finance filed a motion for summary judgment and served the motion on Crump at Post Office Box 7125, Tupelo, Mississippi 38802-7125. On January 6, 2011, Automotive Finance filed a supplemental motion for summary judgment and served the supplemental motion upon Crump at the same address. Also on January 6, 2011, “Sonya” from Crump’s office called and informed counsel for Automotive Finance that Crump was no longer with Shelton and Associates, and that Crump did not take the case with him when he left. On February 2, 2011, Automotive Finance reserved a notice of the March 21, 2011, hearing on its supplemental motion for summary judgment on both Jason Shelton and Crump. The notice of hearing was served on Shelton and Associates at the address it had provided in its own court filings.

¶ 7. An attorney from Shelton and Associates was present in the courtroom on the day of the hearing. Counsel for Automotive Finance discussed the motion with her prior to the hearing, but she left the courthouse before the hearing began, and no attorney for Tyler participated in the hearing. The trial court granted the motion for summary judgment and entered final judgment on March 24, 2011. The same day, Tyler filed a motion pursuant to Mississippi Rule of Civil Procedure 60 to set aside the order for summary judgment and final order. On November 29, 2011 — eight months later — Tyler further moved for leave to amend plaintiffs request for admissions. Both motions were denied by the trial court on December 29, 2011. Tyler timely appealed.

DISCUSSION

¶ 8. The case turns on one point: whether the trial court erred by deeming the request for admissions served by Automotive Finance as admitted. Tyler argues the request for admissions was not properly served. At the very least, however, Tyler’s attorney, Crump, received notice of the request. Not only did he ask for a continuance for the hearing regarding their default admission, one of his colleagues appeared for him in court during the hearing and stated explicitly that Tyler had no response to Automotive Finance’s motion. Since Tyler’s counsel appeared in court and did not object to the request being admitted, and notice of the summary judgment motion was properly served on Tyler, we find no reversible error.

Standard of Review

¶ 9. Although we apply a de novo standard of review to a lower court’s grant of summary judgment, Tyler did not appeal the order granting summary judgment. Rather, the notice of appeal filed by Tyler explicitly states it is an appeal of the trial court’s denial of his Rule 60 motion. Our precedents make clear that the standard of review for an appeal of a Rule 60 motion is abuse of discretion. Accredited Sur. and Cas. Co., Inc. v. Bolles, 535 So.2d 56 (Miss.1988) (“Motions that seek relief from judgment pursuant to Miss. R. Civ. P. 60 are addressed to the sound discretion of the trial court, and the only question asked on appeal is whether the trial court’s ruling on such a motion amounts to an abuse of discretion.”) (quoting Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984)).

¶ 10. Likewise, a trial court’s decision as to whether or not to allow amendment or withdrawal of admissions is subject to review for abuse of discretion. DeBlanc v. Standi, 814 So.2d 796, 802 (¶ 26) (Miss.2002). However, because Tyler filed his motion to amend his admissions years after the trial court deemed them admitted and months after the trial court entered final judgment, we view his motion to amend his admissions as a Rule 60 motion for relief from the trial court’s much-earlier order deeming them admitted.

I. Should the trial court’s order denying Tyler’s motion to amend the admissions be reversed?

¶ 11. The trial court granted summary judgment in favor of Automotive Finance and entered final judgment on March 24, 2011. Eight months later, Tyler filed a motion to amend his admissions. On January 31, 2012, the trial court signed a separate order and opinion denying Tyler’s motion to amend his admissions. It is the January 31, 2012, order that Tyler appeals — not the trial court’s February 8, 2008, order deeming the request admitted. As noted above, because Tyler’s motion to amend his admissions sought relief from the trial court’s earlier order deeming the request admitted, we will review it for abuse of discretion as a Rule 60(b) motion. Out of an abundance of caution, we also address whether the trial court’s initial decision to consider the request admitted was in error.

¶ 12. Tyler contends that Automotive Finance failed to serve him properly with the request for admissions. Tyler complains that the request itself, served May 24, 2007, was improperly served on Tyler’s first attorney, Griffin, who represented Tyler in the bankruptcy proceedings. Tyler contends that, because Griffin never entered an appearance in circuit court after the transfer, Griffin was not his attorney for the purpose of service of the request. Second, Tyler argues that Automotive Finance served the request upon Tyler by mailing it to the wrong address.

¶ 13. The Court need not reach the merits of either of Tyler’s two arguments regarding proper service. On July 9, 2007, Automotive Finance served a motion to deem the unanswered request admitted on Griffin at “336 N. Broadway, P.O. Box 1692 Tupelo, MS 38802.” Rule 36 is self-executing, and no motion to have a request deemed admitted is required. Under the rule, a request is admitted if the receiving party serves no responses or objections within thirty days of service of the requests. Miss. R. Civ. P. 36(a). However, the Court understands that — superfluous though they may be — motions to deem requests admitted are commonplace, and trial courts regularly consider them. In the case sub judice, Automotive Finance filed one and served it upon Tyler. On appeal, Tyler does not contend that the motion was improperly served, nor could he in light of the fact that (1) through counsel he moved for and received a continuance of the hearing on the motion and (2) his attorney appeared at the hearing and conceded the motion. Accordingly, through his attorneys, Tyler knew of the pendency of the request for admissions, and he knew that he had not responded or objected to it.

¶ 14. After postponement, the trial court held a January 30, 2008, hearing on Automotive Finance’s motion to have the request deemed admitted. The hearing took place more than six months after the motion had been served, during which time Tyler never filed a Rule 36(b) motion to withdraw the admissions. Tyler never filed a response to the motion to have the request deemed admitted. Most damning of all, when counsel for Tyler appeared at the hearing on Automotive Finance’s motion and was offered a chance to argue on Tyler’s behalf, counsel stated, “Your hon- or, the defendant has no response, no response at all, your Honor.” At that moment, Tyler had the opportunity to raise all of the arguments he makes now on appeal regarding improper service, etc. He did not. Even if Tyler’s attorney appeared in court for the hearing without any knowledge of the nature of the motion whatsoever, he could have at the very least advised the court that Tyler had not been properly served with any of the documents at issue. Therefore, we find the trial court did not abuse its discretion in deeming the request admitted.

¶ 15. Tyler argues that the trial court erred in not applying the two-part test found in Rule 86(b), which permits amendment of admissions “when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.” However, Tyler cannot escape the clear indication in the record that he — through counsel — conceded the issue at the January 30, 2008, hearing. His concession came despite having been granted a continuance in the hearing date.

¶ 16. Instead, Tyler waited until November 29, 2011, almost four years after the hearing, to file a motion to amend his admissions and thereby obtain relief from the court’s order deeming them admitted. Pursuant to Mississippi Rule of Civil Procedure 60(b), motions for relief from an order or judgment must be “made within a reasonable time.” We hold that, in the instant case, Tyler failed to file the motion within a reasonable time when he waited almost four years and until after a final judgment had been entered to file his motion for relief.

What constitutes reasonable time must of necessity depend upon the facts in each individual case. The Courts consider whether the party opposing the motion has been prejudiced by the delay in seeking relief and whether the moving party has some good reason for his failure to take appropriate action sooner.

Briney v. U.S. Fid. & Guar. Co., 714 So.2d 962, 967 (Miss.1998) (citations omitted). In the instant case, Tyler offers no reason — good or bad — for his failure to seek relief at an earlier time.

¶ 17. We find no abuse of discretion on the part of the trial court in denying a motion to amend admissions filed years after the fact and after the entry of a final judgment.

II. Do the admissions support the order for summary judgment and final judgment?

¶ 18. Tyler appeals.the January 2012 denial of his Rule 60 motion for relief, not the trial court’s March 24, 2011, order and final judgment granting summary judgment. “As a general rule, the ‘extraordinary relief provided for by Rule 60(b) will be granted ‘only upon an adequate showing of exceptional circumstances,’ and gross negligence, ignorance of the rules, ignorance of the law, or carelessness on the part of the attorney will not provide sufficient grounds for relief.” Accredited Sur., 535 So.2d 56 (Miss.1988) (quoting Stringfellow, 451 So.2d at 221). Mississippi Rule of Civil Procedure 60(b)(1) states that such relief may be granted by the court if one of six factors is found to be present: (1) fraud, misrepresentation, or other misconduct of the adverse party; (2) accident or mistake; (3) newly discovered evidence; (4) voidance of the judgment; (5) satisfaction or discharge of the judgment; (6) any other reason justifying relief. Miss. R. Civ. P. 60(b)(1).

¶ 19. Tyler first argues that Automotive Finance never properly served him with the motion for summary judgment because (1) the motion for summary judgment and supplemental motion for summary judgment were not served on Tyler’s original attorney, Griffin and (2) the motion for summary judgment and supplemental motion for summary judgment were not served on Shelton and Associates.

¶ 20. It is undisputed, however, that Automotive Finance properly served both the original and supplemental motion on Crump, who was counsel of record for Tyler. The record contains no order allowing Crump to withdraw as counsel of record for Tyler, and “[w]hen an attorney makes an appearance for any party in a case, that attorney will not be allowed to withdraw as attorney for the party without the permission of the court.” URCCC 1.13; see also Triplett v. State, 579 So.2d 555, 557-8 (Miss.1991) (citing Myers v. Mississippi State Bar, 480 So.2d 1080 (Miss.1985)). Crump never received permission from the trial court to withdraw as Tyler’s attorney. Therefore, the motion and supplemental motion for summary judgment were properly served upon Tyler regardless of whether Automotive Finance served them upon any other attorneys.

¶ 21. It should also be noted that, upon being informed Crump no longer represented Tyler, counsel for Automotive Finance re-served the notice of the summary judgment motion hearing on both Crump and Shelton and Associates. Despite proper service of the notice of hearing, Shelton and Associates failed to attend the hearing and took no responsive action until well after the entry of final judgment.

¶ 22. Tyler next argues that the trial court erred in granting summary judgment because, even with the admissions, there remain disputed issues of material fact. Tyler fails to cite any authority for his position that the admissions do not prove actionable conduct, and his failure to do so waives the issue. Gillett v. State, 56 So.3d 469, 517 (¶ 142) (Miss.2010); Tupelo Rede v. Agency v. Gray Corp., Inc., 972 So.2d 495, 514 (¶ 52) (Miss.2007).

¶ 28. Even if Tyler had cited authority, he failed to point to any part of the record that would support Rule 60 relief. He did not argue fraud, accident, or mistake. The evidence regarding service was available to him well before the lower court granted summary judgment, and he certainly knew of the issues with service prior to the hearing on Automotive Finance’s supplemental motion for summary judgment. He does not suggest the judgment is void or has been satisfied, released, or discharged, or that a prior judgment upon which it was based has been vacated. Tyler fails to argue any other reason that might justify relief. Accordingly, we hold that the trial court acted within its discretion in denying Tyler’s Rule 60 motion.

CONCLUSION

¶24. We find that Tyler appeared in Court through counsel and conceded Automotive Finance’s motion to deem the request admitted. Therefore, the request was properly admitted by the trial court. Furthermore, the trial court did not abuse its discretion in denying Tyler’s Rule 60 motion for relief from the final judgment. Accordingly, we hereby affirm the decision of the trial court.

¶ 25. AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR. LAMAR, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . Tyler cites no authority in support of his contention that Griffin ceased to be counsel of record for Tyler due to the transfer of the case from bankruptcy court, and he therefore waives the issue. Gillettv. State, 56 So.3d 469, 517 (¶ 142) (Miss.2010); Tupelo Redevelopment Agency v. Gray Corp., Inc., 972 So.2d 495, 514 (¶ 52) (Miss.2007).


author: KITCHENS, Justice,

text:
    David W. PARVIN v. STATE of Mississippi.
    No. 2011-KA-01471-SCT.
    Supreme Court of Mississippi.
    April 11, 2013.
    Rehearing Denied June 13, 2013.

      James Lawton Robertson, Jackson, Jim Waide, Tupelo, Rachel Marie Pierce, William Tucker Carrington, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, John R. Henry, Jr., Scott Stuart, attorneys for appellee.
    Before WALLER, C.J., KITCHENS and PIERCE, JJ.
   KITCHENS, Justice,

for the Court:

¶ 1. David W. Parvin appeals his murder conviction, characterizing his arguments as “a Weathersby case with a Daubert twist.” Parvin maintains that his wife’s death was caused by accident, and the State’s principal evidence refuting his defense at trial consisted of expert testimony, accompanied by a computer-generated reconstruction of the scene of her demise. The State argued that the experts’ opinions about the physical evidence proved the victim was intentionally killed. Although we find no merit in Parvin’s Weath-ersby claim, we agree that certain expert testimony and the visual depiction of that testimony should not have been presented to the jury. Because this evidence severely prejudiced Parvin’s defense, we reverse the conviction and remand the case to the Monroe County Circuit Court for a new trial.

The Evidence

¶ 2. On the morning of October 15, 2007, Dr. David Parvin called 911 to report that he accidentally had shot Joyce Parvin, his wife of forty-nine years, at their home near Aberdeen, Mississippi. When law enforcement officials arrived, Joyce was dead. She was found in a desk chair, her body draped over the left armrest, with a shotgun wound on the right side of her torso.

113. Parvin reported to the investigating officers that he had been rushing out of the house to shoot a beaver and was carrying a loaded shotgun. According to Par-vin, in his haste, he tripped, and during his fall, the gun discharged, shooting his wife, who was seated at their home computer. He told the officers that he believed the gun had been parallel to the floor or slightly elevated. He also was unsure about some of the other details: whether he or his wife had spotted the beavers first; whether he had tripped over the rug or the dog; whether his knee had hit the floor; and whether the barrel of the gun had hit the armrest of the chair where Joyce was sitting at the moment it discharged. Par-vin also said that he typically held the gun, a double-barreled Savage Arms Fox 12-gauge shotgun, with his left hand on the fore grip and his right hand around the trigger guard, but was unsure whether he had pulled one of the two triggers accidentally. Although Parvin was unsure about many of the details surrounding the incident, he maintained at trial that the shooting was an accident caused by his unexpectedly tripping and falling while holding the shotgun.

¶ 4. Two law enforcement officials who had been dispatched to the Parvin house that day testified as witnesses for the State. Curtis Knight of the Monroe County Sheriffs Office said that he believed Joyce possibly had suffered a contact wound based on what appeared to be gunpowder on Joyce’s shirt, and that no pellets from the shotgun had struck anything near her body. He also testified that the rug did not appear to be disturbed.

¶ 5. Arthur Chancellor, a crime-scene analyst for the Mississippi Bureau of Investigation, confirmed Knight’s impression that the rug was undisturbed. He also testified that no marks were on the walls or the floor which would have suggested to him that someone had tripped while holding a gun. He further opined that the “injury appeared to be going in a downward angle.”

¶ 6. The State also presented the testimony of three witnesses, who were accepted by the trial court as experts in their respective fields: Starks Hathcock, a firearms expert who had tested the gun; Dr. Steven Hayne, a forensic pathologist who had performed the autopsy; and Grant Graham, a crime-scene analyst who presented to the jury a computer-generated depiction of the shooting. Hathcock testified that he had test fired the gun but was unable to establish a conclusive distance from muzzle to wound. In contrast to Hathcock’s testimony, Dr. Hayne — who had neither tested nor seen the shotgun— testified that the muzzle had been approximately four feet away and estimated that the shotgun pellets had entered Joyce’s torso “downward at 25 to 30 degrees [and] forward at approximately 15 degrees.” Finally, Graham presented to the jury a computer-generated depiction of the shooting, relying on various measurements, which included Hayne’s estimates.

¶ 7. The State also presented two lay witnesses who had spoken with Parvin about the shooting. Betty Hamblin testified that Parvin initially had told her Joyce had committed suicide, but then he “changed his story” to the version he had given in his initial interview with police. According to Hamblin, she and Parvin had been engaged in an extramarital affair pri- or to and after the death of his wife, and she said that, after his wife’s death, Parvin had asked her to marry him. She said that she later learned that Parvin had been seeing still another woman, whom he eventually married instead.

¶ 8. Parvin’s daughter, Amy Henley, also was a witness for the State and testified that, when she was growing up, her father had emphasized the importance of gun safety to her and her siblings, particularly with regard to ensuring that the gun remained unloaded. She said that she was shocked when she heard what had happened and that it was “hard for me to imagine my father, that’s been around guns all my life, would do something like that.” Additionally, Henley testified that, on the day of her mother’s shooting, her father’s first words to her were “[d]on’t worry about it. You’ll get over it.”

¶ 9. After a five-day trial, a Monroe County jury convicted Parvin of murder, and he was sentenced to life imprisonment. Aggrieved, Parvin appeals the judgment of conviction.

The Issues

¶ 10. Parvin asserts that, because the only evidence that substantially contradicted his version of events was unreliable and inadmissible, this Court should reverse his conviction and render a judgment of acquittal. While we agree with Parvin that the State’s case rested in large part on inadmissible evidence, we do not find that he is entitled to a judgment of acquittal based on the Weathersby rule. Because we reverse his conviction due to the admission of highly speculative and prejudicial evidence, we do not address his assignments of error related to certain jury instructions.

I.

¶ 11. Parvin argues that the computer-generated depiction of the shooting should have been excluded as scientifically unreliable, because it was based largely on Dr. Hayne’s estimated measurements regarding distances at the scene and pellet trajectories and because it was created despite unknown variables (e.g., Joyce’s position). Parvin also argues that Hayne’s measurements were scientifically unreliable because they were not based on sufficient data, and because they were outside the scope of a forensic pathologist’s expertise and function. To emphasize his point, Parvin correctly notes that the testimony of the State’s firearms expert substantially contradicted that of Dr. Hayne.

Standard of Review and Pertinent Legal Standards

¶ 12. On appeal, we review errors in the admission of evidence, including expert testimony and demonstrative evidence, for an abuse of discretion. See, e.g., Bishop v. State, 982 So.2d 371, 380 (Miss.2008) (standard of review for expert testimony); Lewis v. State, 725 So.2d 183, 189 (Miss.1998) (standard of review for demonstrative evidence). Under this standard, we will reverse a trial court’s ruling if we find it to be “arbitrary and clearly erroneous.” Bishop, 982 So.2d at 380.

¶ 13. The legal standard governing expert testimony is found in Mississippi Rule of Evidence 702. The Rule provides that a properly qualified witness may testify “in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” In interpreting Rule 702, this Court has looked to the standards applied by the federal courts, most notably Daubert and Kumho Tire. See Miss. Transp. Comm’n v. McLemore, 863 So.2d 31 (Miss.2003) (discussing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). A so-called Daubert analysis is flexible, and the factors considered by the trial court will depend on the particular circumstances of the case. McLemore, 863 So.2d at 37 (citing Daubert, 509 U.S. at 594, 113 S.Ct. 2786; Kumho Tire, 526 U.S. at 150-51, 119 S.Ct. 1167). Nevertheless, whatever the factors considered by the trial court, “self-proclaimed accuracy by an expert [is] an insufficient measure of reliability.” Id. (citing Kumho Tire, 526 U.S. at 157, 119 S.Ct. 1167)).

¶ 14. Additionally, “the opinion of an expert witness must be stated with reasonable certainty, given the state of knowledge in the field in which the expert is qualified.” West v. State, 553 So.2d 8, 20 (Miss.1989) (citations omitted). In other words, these opinions “must rise above mere speculation.” Williams v. State, 35 So.3d 480, 486 (Miss.2010) (quoting Go-forth v. City of Ridgeland, 603 So.2d 323, 329 (Miss.1992)). “[I]ndefinite” expert opinions, or those “expressed in terms of mere possibilities,” are not admissible. West, 553 So.2d at 20 (citing Scott County Co-op v. Brown, 187 So.2d 321, 325-26 (Miss.1966); Gen. Benevolent Assoc, v. Fowler, 210 Miss. 578, 589, 50 So.2d 137, 142 (1951)). For example, we have held that an expert’s offering a “reasonable hypothesis” was insufficient, explaining that “[ejxpert testimony should be made of sterner stuff.” Goforth, 603 So.2d at 329.

Procedural Bar

¶ 15. As an initial matter, the State argues that the issue of the reliability of Dr. Hayne’s estimated measurements is procedurally barred because Parvin failed to make a contemporaneous objection at trial. However, when a party files a motion in limine to exclude the evidence, or has otherwise objected to its admission, and the objection is overruled, the party may try the case on the assumption that the court’s prior ruling will stand. Goff v. State, 14 So.3d 625, 640 (Miss.2009) (citing Kettle v. State, 641 So.2d 746, 748 (Miss.1994)); Jones v. State, 461 So.2d 686, 702 (Miss.1984).

¶ 16. Well before trial, counsel for Par-vin filed a motion in limine to exclude various aspects of anticipated evidence, including Graham’s reconstruction and any testimony from Dr. Hayne. We recognize that this motion was very general in nature, and Parvin’s attorney did not request a pretrial Daubert hearing with regard to Hayne. However, after the trial court had held a hearing and overruled the motion with respect to Graham, Parvin filed a very detailed pro se motion attacking the credibility of the distance and trajectory estimates in Hayne’s autopsy report. In that motion, Parvin maintained that the muzzle-to-target distance and the shot trajectories provided in Hayne’s autopsy report were made “without comment, expía-nation, or support,” and none of these measurements could be “determined by the autopsy report or any of the related scientific tests.” Parvin attached to his motion the autopsy report, Hathcock’s reports, prints of Graham’s computer-generated presentation, and Graham’s written report describing what Graham termed his “best explanation of events.” Moreover, Parvin’s motion cited specific portions of these exhibits to support his argument that the autopsy’s estimates were unreliable.

¶ 17. Not long afterward, Parvin wrote a letter to the trial judge, filed in the circuit clerk’s papers, requesting a hearing regarding Dr. Hayne’s opinions. According to his letter, Parvin was having difficulty contacting his attorneys and feared that his motion would not be heard before trial. Parvin wrote, “[t]o let Hayne testify at trial without the defense having the opportunity to question him without the jury would be unfair to the defense.”

¶ 18. Parvin’s motion and request for a hearing remained unanswered until the morning of trial. Before the jury selection, the trial judge addressed outstanding motions, including Parvin’s pro se motion. Without hearing argument, the court explicitly denied his motion to exclude the evidence, stating that “[a]ll of these matters are arguments that the defense can raise on cross-examination,” and Parvin’s assertions simply “go to the weight of the evidence and the credibility of the witnesses.”

¶ 19. Lastly, Parvin himself attempted to object during Dr. Hayne’s testimony, but was not allowed to do so. While his attorney was cross-examining Hayne about the accuracy of the autopsy, the following exchange occurred:

Parvin: Your Honor, I am concerned that this expert—
Court: I am concerned,.sir — if you have anything to say to the Court, you direct it through your attorney. Now, [defense counsel], take him out into the hallway and explain things.

When Parvin and his attorney returned, the trial judge told defense counsel to “inform [Parvin] that if he has any remarks to make to the Court, that he make them to you and you will make them to the Court.”

¶ 20. The trial court was presented with this issue again, when, after Hayne was dismissed, Parvin’s attorney moved to strike his testimony as speculative and inflammatory. Additionally, the reliability of Hayne’s testimony was reasserted, in detail, in Parvin’s pro se motion for a new trial and in an amended motion for a new trial filed by his newly-retained appellate counsel. Both motions were considered and denied by the trial court.

¶ 21. Given the numerous attempts to exclude Dr. Hayne’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.

The Pathologist’s Distance and Trajectory Measurements

¶ 22. Dr. Hayne’s autopsy report listed Joyce Parvin’s cause of death as a “shotgun wound of the right flank, distant (approximately 4 feet).” The report also concluded that the “angles of trajectory [were] right to left, superior to inferior at approximately 25-30 degrees and posterior to anterior at approximately 15 degrees.” It described the entrance wound as “ovoid and cookie cutter,” and noted that there was gun powder tattooing on the victim’s face, her left armpit, and in the bend of her left elbow.

¶ 23. At trial, Hayne testified that the victim had suffered a “near contact wound,” but maintained that the distance from the muzzle to the victim was “approximately four feet.” He testified that this conclusion was based on the appearance of the entrance wound and the presence of gunpowder “tattooing.” Although Dr. Hayne said that he did not know what type of gun was used, his “impression” was that a 12-gauge shotgun, with a bore of approximately three-fourths of an inch, had caused the injury. He further testified at trial, that when fired, “individual pellet strikes start appearing after four feet.” This pronouncement was not limited to any particular type, make, or model of shotgun, including the one that inflicted the fatal wound, and neither was it restricted to any kind of barrel choke or length, or type of ammunition. According to Hayne, he was able to discern from the “cookie cutter” shape of the wound that the shot pellets were “right on the verge of separating,” thus indicating to him that the muzzle of the gun had been approximately four feet from the victim when the fatal shot was fired. Notably, the autopsy report did not include his conjectures regarding the measurement of the shotgun bore, or his opinion that the pellets were “right on the verge of separating.”

¶ 24. This testimony was substantially contradicted by Starks Hathcock, the State’s firearms expert, who actually had tested the gun in question but was unable to establish a conclusive shot distance. Hathcock was qualified as an expert “in the field of forensic science, particularly in firearm and toolmark determinations, and also qualified in the subfield of distance determination, that is, determining distances from the muzzle of a gun to a victim at the time of a shooting.” Hathcock explained that, following established and widely accepted testing procedures, he test fired Parvin’s gun at various distances and then compared the patterns created in the test cloth and cardboard to the pattern on the victim’s shirt. Throughout his testimony, Hathcock used the term “fliers” to describe individual pellets which had separated from “the main mass of shot.” Based on his test shots, Hathcock noted that, at four feet, fliers consistently were present, but it was also likely that fliers would appear at anywhere from three to five feet. He also testified that he had observed no fliers in the shirt Joyce Parvin was wearing. According to Hathcock, the testing procedure complied with the generally accepted methods used by forensic firearms experts, and he identified authoritative publications which supported and explained these methodologies.

¶ 25. As for Hayne’s estimated trajectory estimates (25 to 30 degrees downward and 15 degrees forward), he explained his methodology as follows: “[Y]ou place an individual in what’s called the anatomically correct position, that is an individual standing, legs together, hands to the side, palms forward, face forward, and then you measure everything in relationship to that posture.” When asked to elaborate, Dr. Hayne said he had used a protractor, which he placed at the wound site, to determine the angles. This testimony was compromised, if not contradicted, on cross-examination, when he testified that, unlike a single bullet, the individual pellets would diverge upon impact and that it would be impossible to give the “wound trajectory” for each pellet. Additionally, he said that he sometimes places rods in a wound track to determine trajectory; but, in his opinion, “this case was straightforward.”

¶ 26. Over the defendant’s objection, the prosecutor elicited testimony from Dr. Hayne that the 25-to-30 degree downward trajectory was consistent with the barrel’s pointing downward toward the victim in a seated or standing position. During this questioning, the prosecutor was holding the shotgun in a firing position, with the gun’s butt against his shoulder. Defense counsel argued that this testimony was similar to that given by Dr. Hayne in another murder case, testimony that this Court found to be speculative and improper. Edmonds v. State, 955 So.2d 787, 792-93 (Miss.2007). The trial court overruled the objection and refused to strike the testimony, finding Edmonds distinguishable. At the conclusion of his direct testimony, the prosecutor asked Dr. Hayne whether he had “testified to [his] approximate distance and angles in this case within a reasonable degree of medical certainty,” to which he responded “yes.”

The Computer-Generated Recreation of the Shooting

¶ 27. Graham, accepted as an expert in crime-scene reconstruction, testified that he had used computer software to reconstruct the scene of the incident digitally or to “pose a hypothesis or an idea as to how maybe the incident happened.” According to Graham, the software would create three-dimensional images of human figures and would position those figures based on data he provided. He testified that he used the distance and trajectory estimates from Dr. Hayne’s autopsy report, the gun’s measurements, Parvin’s height as listed on his driver’s license, and other measurements taken by the investigating officers at the Parvin home. He did not, however, use any information from Hath-cock. Additionally, although there were no measurements regarding Joyce’s position after she had been shot, Graham concluded that “the best approximation of the victim’s position is consistent with her being seated in the office type chair, body oriented in a southwesterly direction approximately centered on the desk, in a general turned and facing right position, leaning approximately seven degrees to the right.”

¶ 28. This information was used to recreate images depicting Graham’s theory of how Joyce was shot. Graham described this theory as “the best approximation based upon all of the data and how all of the angles and all of the measurements fit together into one scenario,” and that all the possible scenarios were consistent with the State’s theory that Parvin had stood over his wife with the butt of the gun resting on his shoulder. This computer-generated model of Graham’s “best possible scenario” consisted of several three-dimensional images showing Graham’s theory of the shooting from various vantage points. These pictures, displayed to the jury during Graham’s testimony, showed a woman seated in a chair with her face turned toward the muzzle of a gun. The gun was depicted as being held by a man, standing above the woman and looking down at her with the butt of the gun against his shoulder.

The Legal Validity of these Expert Opinions

¶ 29. After a thorough review of the record, we find that the measurements provided by Hayne and the shooting’s depiction by Graham fell woefully short of the requirements for admissibility. M.R.E. 702. When asked to explain how he had calculated his distance and trajectory measurements, Hayne did not cite any scientific principle or method. He asserted that he could measure the trajectory of the shotgun pellets using only his naked-eye observations of the entrance wound and a protractor, despite his testimony that it would be “impossible” to track the fired pellets. The only explanation offered was his assertion that “this case was straightforward.”

¶ 30. As for the distance determination, Hayne claimed to know that the pellets were “right on the verge of separating,” and made an unsupported statement that, when fired, “individual pellet strikes start appearing after four feet,” no matter the type of ammunition or shotgun. Despite the conflicting testimony from the State’s firearms expert that a conclusive muzzle-to-wound distance could not be determined, Hayne claimed to have been able to measure the distance by viewing the wound and the victim’s clothing. In sum, the only scientific method or principle appearing in the record was the ipse dixit or self-proclaimed accuracy of Hayne. Because the distance and trajectory measurements were based upon the subjective beliefs and speculation of the testifying witness, his unsupported opinions should have been excluded. Dedeaux Utility Co., Inc. v. City of Gulfport, 68 So.3d 514, 530-31 (Miss.2011) (citing Gulf South Pipeline Co. v. Pitre, 35 So.3d 494, 499 (Miss.2010); Watts v. Radiator Specialty Co., 990 So.2d 143, 149 (Miss.2008); Edmonds v. State, 955 So.2d 787, 792 (Miss.2007); McLemore, 863 So.2d at 36).

¶ 31. Likewise, Graham’s graphic depiction of relevant, disputed events was inherently tainted because it relied on the unsupported and admittedly “approximate” measurements from the autopsy as well as Graham’s own “best approximation of the victim’s position.” Graham testified with no degree of certainty regarding the accuracy of his theory as to how the shooting occurred, and he merely asserted that it was his “best approximation” of “a hypothesis or an idea of how maybe the incident happened.” See West, 553 So.2d at 20 (expert opinions are not admissible if “expressed in terms of mere possibilities”).

¶ 32. This “possible scenario” of how the shooting had occurred was presented to the jury by means of computer-generated images accompanied by Graham’s testimonial commentary. The jury saw a graphic depiction of the State’s theory of the alleged homicide in which a man was standing over a woman aiming a shotgun at her face. The male figure was looking down at the woman, with the butt of the gun on his shoulder, as she stared into its muzzle. Dr. Hayne gave credence to Graham’s depiction of the shooting when, as the prosecutor held the weapon and aimed it downward, he opined that the autopsy measurements were consistent -with the defendant’s standing and aiming the gun at his wife.

¶ 33. As with other expert opinions, computer-generated re-creations which graphically depict disputed evidence “must be based on scientific, identifiable, and objective facts.” Cox v. State, 849 So.2d 1257, 1273-74 (Miss.2003) (emphasis in original) (citing Clark v. Cantrell, 339 S.C. 369, 529 S.E.2d 528 (2000); State v. Farmer, 66 S.W.3d 188 (Tenn.2001); Pierce v. State, 718 So.2d 806 (Fla.Dist.Ct.App.1997)). Furthermore, any computer animation that is not based on accurate data or “actual, physical measurements” from the scene of the incident is mere speculation, Cox, 849 So.2d at 1273, for expert opinions are not admissible if “expressed in terms of mere possibilities,” West, 553 So.2d at 20. In the present case, the speculative “expert” opinions and the accompanying computer-generated depictions of a “possible” account of the shooting should not have been placed before the jury. West, 553 So.2d at 20. As this constituted the main evidence utilized to undermine Parvin’s defense, reversal is required.

II.

¶ 34. Without the inadmissible expert opinions to establish that Parvin intentionally had shot his wife, he argues that he is entitled to an acquittal under Weathersby v. State, 165 Miss. 207, 209, 147 So. 481, 482 (1933). In 1933, the Mississippi Supreme Court declared:

[W]here the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.

Id. If the Weathersby rule applies “and the defendant’s version affords an absolute legal defense, the defendant is entitled to a directed verdict of acquittal.” Green v. State, 631 So.2d 167, 174 (Miss.1994) (citing Blanks v. State, 547 So.2d 29, 33 (Miss.1989)). There are, however, limitations upon the familiar Weathersby rule. For example, it is inapplicable when the defendant’s “conduct and statements following the killing are inconsistent with his version of the events as recounted at trial.” Green, 631 So.2d at 174 (citing Blanks, 547 So.2d at 33).

¶ 35. We find that Parvin cannot successfully invoke the Weathersby rule, given the testimony by his mistress. As recounted above, she testified that Parvin initially told her that Joyce had committed suicide. Sometime later, he admitted that he had lied about the manner of his wife’s death and told his paramour that the shooting had been an accident. Because Parvin’s claim that his wife had taken her own life contradicted his assertion that he had shot her accidentally, we find that Parvin is not entitled to a judgment of acquittal under Weathersby.

Conclusion

¶ 36. We hold that the circuit court erred in allowing Graham’s reconstruction of the shooting to be shown to the jury, because its creation relied on the pathologist’s approximation of relevant angles and distances and failed to take into account the testing performed by the firearms examiner. The State failed to demonstrate the scientific reliability of this speculative testimony, which was highly prejudicial to Parvin’s defense. As this testimony and the computer-generated images illustrating it comprised a very significant part of the State’s case, the conviction must be reversed. Additionally, we find that the defendant is not entitled to an acquittal based on the Weathersby rule due to his highly inconsistent statements following his wife’s death. Accordingly, the defendant’s murder conviction and sentence are reversed, and the case is remanded to the Circuit Court of Monroe County for a new trial consistent with this decision.

¶ 37. REVERSED AND REMANDED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, PIERCE, KING AND COLEMAN, JJ, CONCUR. CHANDLER, J., NOT PARTICIPATING.

      . See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (discussing the standards governing the admissibility of expert testimony); Weathersby v. State, 165 Miss. 207, 209, 147 So. 481, 482 (1933) (reiterating the rule that "where the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge”) (citations omitted)).

      . Parvin holds a Ph.D. degree in economics from the University of Florida and taught at Mississippi State University before he retired. He was 68 years old on the day his wife was shot.

      . The Parvins' home was located on the Tennessee-Tombigbee Waterway. According to trial testimony, beavers and “beaver-like” creatures inhabit the region and are deemed noxious by the local waterfront community. With no animal-control services, the local residents customarily dealt with the unwanted animals by shooting them.

      . We note that there was some debate during the proceedings below about whether Graham's visual re-creation of the shooting was a simulation or an animation. Throughout this opinion, we refer to the material as a depiction or re-creation.

      . According to Parvin, the loaded gun was kept, against his wishes, in the living quarters upstairs because of the frequency with which they were shooting animals. It previously had been kept in a locked room off the carport.

        . Dr. Hayne never visited the shooting scene, and the record does not reflect that he ever saw the shotgun, except for his seeing it in the courtroom during the trial.

      . It is not suggested that Dr. Hayne should have been testifying about such variables, given that he was neither tendered, qualified, nor accepted as an expert on firearms, ballistics, ammunition, or crime-scene investigation.


author: WALLER, Chief Justice,

text:
    Dwayne BOYD v. STATE of Mississippi.
    No. 2010-CT-01816-SCT.
    Supreme Court of Mississippi.
    May 30, 2013.

      Ali Muhammad Shamsiddeen, Jackson, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   WALLER, Chief Justice,

for the Court:

¶ 1. Dwayne Boyd was convicted of the sale of marijuana, greater than thirty grams but less than one kilogram, within 1,500 feet of a school or within 1,000 feet of the real property of a school. Boyd was sentenced, as a subsequent drug offender, to 120 years in the custody of the Mississippi Department of Corrections (MDOC), with sixty years to serve and five years of supervised post-release supervision. The Court of Appeals affirmed his conviction and sentence. We agree that the trial court did not abuse its discretion in dény-ing Boyd’s motion for continuance to secure new counsel on the day of trial. But we find that Boyd did not receive timely notice that the State would seek a post-conviction amendment to the indictment and such action constituted unfair surprise. Therefore, we affirm Boyd’s conviction, but we vacate his sentence and remand the case to the Madison County Circuit Court for resentencing.

FACTS

¶ 2. During pretrial matters on the morning of trial, Dwayne Boyd released his privately retained attorney, Wesley T. Evans, and requested a continuance. The trial court allowed Boyd to release Evans but denied Boyd’s ore temis motion for a continuance. Also during pretrial matters, the State announced that it would seek to amend the indictment if it obtained a conviction. Once trial began, the trial court offered the services of Bentley Conner, the chief public defender in Madison County, who was physically present inside the courtroom at the time. Boyd refused Conner’s services. The trial court next conducted an examination of the defendant pursuant to Rule 8.05 of the Uniform Rules of Circuit and County Court. Boyd was deemed by the trial court to have elected to represent himself.

¶ 3. At trial, the State put on five witnesses, including Lieutenant Tommy Jones of the Madison County Sheriffs Department’s Narcotics Division, a confidential informant, and a lab technician with the Mississippi Crime Laboratory. Boyd continued to trial without an attorney, without calling any witnesses or presenting any evidence. The jury found Boyd guilty of selling greater than thirty grams but less than one kilogram of marijuana, a Schedule I controlled substance, within 1,500 feet of a building or outbuilding of Canton Alternative School in Madison, Mississippi, or within 1,000 feet of the real property of Canton Alternative School. The trial court deferred sentencing until the following morning. On the morning of sentencing, the State filed a motion to amend the indictment to charge Boyd as a subsequent drug offender under Mississippi Code Section 41-29-147, which was granted. The trial court then sentenced Boyd to 120 years in the custody of the MDOC. That sentence was enhanced by Mississippi Code Section 41-29-142 (within 1,500 feet of a school) and enhanced again by Mississippi Code Section 41-29-147 (second offense).

¶4. Boyd appealed, and the case was assigned to the Court of Appeals. On appeal, Boyd asserted that the denial of his motion for a continuance deprived him of a fair trial and that his sentence violates the Eighth Amendment to the United States Constitution. The Court of Appeals affirmed the conviction and sentence. Boyd v. State, 114 So.3d 1, 2012 WL 1847978 (Miss.Ct.App.2012). It found that the trial judge did not abuse his discretion in denying Boyd’s motion for continuance because Boyd had “ample time” to obtain other counsel. Id. at *4. The COA also found that, although his indictment was amended after he was convicted, he received notice during pretrial proceedings and, therefore, he was not unfairly surprised. Id.

¶ 5. Although we agree that the trial court did not abuse its discretion when it denied Boyd’s motion for continuance, we granted certiorari to discuss what constitutes sufficient notice of the State’s intent to amend an indictment to reflect subsequent-offender status in order to provide the defendant “a fair opportunity to present a defense” and protection from being “unfairly surprised.” See URGGC 7.09.

DISCUSSION

¶ 6. Rule 7.09 provides that amendments to indictments are permissible as long as the defendant is not unfairly surprised and has reasonable notice for preparation of a defense. Rule 7.09 states: URCCC 7.09. While Rule 7.09 “does not speak to the timing of the amendment,” it instructs that “the defendant must be ‘afforded a fair opportunity to present a defense’ and ‘not be unfairly surprised.’” Gowdy v. State, 56 So.3d 540, 545 (Miss.2010) (quoting URCCC 7.09). In Gowdy, this Court held that it was an unfair surprise to amend an indictment to allege habitual-offender status after a conviction. Gowdy, 56 So.3d 540, 545.

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

¶ 7. In Gowdy, the parties had an on-the-record discussion regarding plea negotiations on the morning of trial. Gowdy, 56 So.3d at 544. The State expressed that it was willing to recommend a sentence of one year if Gowdy would plead guilty. Id. Although Gowdy’s attorney stated that he thought it would be in his best interest to accept the offer, Gowdy rejected the deal and invoked his right to a jury trial. Id. The day after Gowdy’s conviction, the State informed the court that it had “just received” information regarding Gowdy’s prior out-of-state convictions and would seek to amend the indictment to reflect Gowdy’s habitual-offender status. Id. Nearly two months after Gowdy’s conviction, the State filed its motion to amend the indictment on the day on which the sentencing hearing was scheduled. Id. The trial court allowed the amendment over Gowdy’s objection and sentenced him to life imprisonment. Id. at 545.

¶ 8. This Court found that the post-conviction amendment to the indictment was error and remanded the case for resentencing. Gowdy, 56 So.3d at 546. In its discussion, this Court relied on its prior ruling in Akins v. State, 493 So.2d 1321, 1322 (Miss.1986), to find that a post-conviction amendment to an indictment to allege habitual-offender status is an unfair surprise. Gowdy, 56 So.3d at 545. The Court noted that, if the State were allowed to amend indictments post-conviction to allege habitual-offender status, there would be no incentive for the State to be diligent in procuring criminal records in advance of presenting charges before the grand jury. Id. at 546.

¶ 9. This Court has said that it is permissible to amend the indictment on the date of trial to reflect a defendant’s habitual-offender status, when defense counsel is aware of the State’s intentions and the defendant is fully aware of the State’s intentions during plea negotiations. Ellis v. State, 469 So.2d 1256, 1257 (Miss.1985).

¶ 10. During pretrial proceedings on the morning of trial, the State explained:

... Right now Mr. Boyd is facing 40 years on the sale case because it’s enhanced because it’s within 1,500 feet of a school.
But we want Mr. Boyd to know on the record that he’s also a subsequent drug offender for an out-of-state conviction. And should we go to trial on this, the State at sentencing, if we obtain a conviction, we’ll be seeking to double up to 80 years based on he’s a subsequent drug offender.
But if he wants to take advantage and watch the video and do the plea, the State, obviously, has no objection to an open plea as .to the indictment as it reads right now.

¶ 11. The Court of Appeals found that this statement constituted sufficient notice that the State would seek to sentence Boyd as a habitual offender. We disagree. The issue of proper notice was addressed by this Court in Smith v. State, 477 So.2d 191, 196 (Miss.1985). The Court found that, where the defendant did not have notice that the State was seeking a sentence of life imprisonment, such a sentence was plain error and unconstitutional. Id. The defendant was indicted as a habitual offender; however, the quantity of time sought was unclear. Although the defendant did not raise the issue of his wrongful sentence on direct appeal, the Court determined that where, under the two habitual-offender statutes, the sentence would be either seven years (under Section 99-19-81) or life in prison (under Section 99-19-83), the comparison of the sentences was “too significant a deprivation of liberty” to enforce the procedural bar. Id. at 195. The Court found that, because the indictment clearly gave the defendant notice that the State was seeking a seven-year term, and not a life sentence, he was wrongfully sentenced to life imprisonment. Id. at 196.

¶ 12. In the instant case, Boyd was not informed through his indictment that the State intended to seek to sentence him as a subsequent offender. The State asserts that Boyd was given notice because he was told during pretrial proceedings on the morning of trial that, if a conviction was obtained, the State would seek to sentence him as a subsequent offender. Such “notice” is not sufficient. The verbal notice that was given by the State did not sufficiently inform Boyd what his sentence might be if he were found to be a subsequent offender. Although the State told the trial court that it would seek “to double up to 80 years” because he was a subsequent offender, Boyd actually was sentenced to a total of 120 years. This disparity supports our finding that Boyd did not receive adequate notice of the State’s intention to seek a sentence enhancement. We find that adequate notice is achieved through formal pleadings which include the specific amendment to be offered and which are filed sufficiently in advance of trial to ensure that a defendant will have a “fair opportunity to present a defense” and will not be “unfairly surprised.” URCCC 7.09.

CONCLUSION

¶ 13. We find no error that would warrant reversal of Boyd’s conviction. Therefore, we affirm in part the judgments of the Court of Appeals and the trial court. However, we find that Boyd did not receive timely or sufficient notice of the State’s intent to amend his indictment. Therefore, this amendment resulted in unfair surprise. For this reason, we reverse in part the judgments of the Court of Appeals and trial court, vacate Boyd’s sentence, and remand the case to the Madison County Circuit Court for resentencing consistent with this opinion.

¶ 14. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT IS AFFIRMED IN PART, VACATED IN PART AND REMANDED. CONVICTION OF THE SALE OF MARIJUANA, A SCHEDULE I CONTROLLED SUBSTANCE, WITHIN ONE THOUSAND FIVE HUNDRED FEET OF A BUILDING OR OUTBUILDING OF CANTON ALTERNATIVE SCHOOL IN MADISON COUNTY, MISSISSIPPI, OR WITHIN ONE THOUSAND FEET OF THE REAL PROPERTY OF CANTON ALTERNATIVE SCHOOL, AFFIRMED. THE SENTENCE IS VACATED. THIS CASE IS REMANDED TO THE MADISON COUNTY CIRCUIT COURT FOR RESENTENCING.

LAMAR, KITCHENS, CHANDLER, KING AND COLEMAN, JJ., CONCUR. RANDOLPH, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. DICKINSON, P.J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. PIERCE, J„ CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . On May 20, 2010, the case was set to be tried on October 5, 2010, and the trial was actually conducted on October 6, 2010. Boyd’s retained attorney entered his appearance on September 20, 2010.