author: IRVING, P.J., for the Court:

text:
    Joseph Robert REITH a/k/a Joseph R. Reith a/k/a Joseph Reith, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01591-COA.
    Court of Appeals of Mississippi.
    March 19, 2013.
    Rehearing Denied Sept. 17, 2013.

      George T. Holmes, Jackson, attorney for appellant.
    Office of the Attorney General by Laura H. Tedder, attorney for appellee.
   IRVING, P.J., for the Court:

¶ 1. On September 21, 2011, a jury convicted Joseph Robert Reith of murder. The Madison County Circuit Court sentenced him to life imprisonment in the custody of the Mississippi Department of Corrections. Feeling aggrieved, Reith appeals and argues that: (1) the circuit court erroneously gave jury instruction S-5; (2) the circuit court improperly limited his theory of the case; (B) there is insufficient evidence to support the jury’s verdict; and (4) he received ineffective assistance of counsel.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. Reith and his wife, Tammy, divorced in 2007. The couple shared custody of their only child, Dylan. Following the divorce, Tammy voiced her intent to move to Alaska and to take Dylan with her. On March 12, 2010, Reith petitioned the chancery court for a temporary restraining order and a permanent injunction to prevent Tammy from removing Dylan from the state.

¶ 4. On March 23, 2010, Tammy allegedly went to Reith’s apartment to visit with Dylan. However, Dylan was not home. While inside the apartment, Reith and Tammy began to argue about Tammy threatening to take Dylan to Alaska. Reith later killed Tammy as she attempted to leave his apartment. Reith admitted that he killed Tammy but insisted that he “blacked out” before killing her.

¶5. Officer Howard Young, with the Canton Police Department, testified that he went to Reith’s apartment on the day of the incident in response to a call from dispatch that there was a possible domestic-violence situation. When Officer Young arrived at Reith’s apartment, he knocked twice but received no answer. Officer Young entered the apartment and noticed Reith on his cellular phone. He approached Reith and asked if anything was going on. Reith responded by saying, ‘What have I done? What have I done? Is she dead?” Reith pointed to Tammy’s body lying on the floor. Officer Young testified that he had not seen Tammy’s body until Reith pointed toward her. He immediately took Reith’s cellular phone from him and took him into custody. Officer Young noted that Tammy was “pretty badly beaten up,” had a knife through her neck, and was covered slightly with a blanket. Officer Young found a twelve-inch, adjustable crescent wrench, wrapped with gray duct tape, lying near Tammy’s head.

¶ 6. Officer Young called Lieutenant Kelvin McKenzie, with the Canton Police Department, and requested that he come to the crime scene. Lieutenant McKenzie testified that when he arrived at the scene, he noticed that Tammy had been covered with a blanket and that a large kitchen knife was sticking through her neck. Lieutenant McKenzie noted that there was no blood on the knife or on the outside of the blanket. He believed that Reith used the crescent wrench to inflict the injuries to Tammy’s head and face.

¶ 7. Chief Investigator Keith Leavitt, with the Mississippi Attorney General’s Office, testified that he analyzed data from Reith’s and Tammy’s cellular phones. Investigator Leavitt extracted the text messages and the phone calls from both phones and generated a report listing the extracted data. The report showed the text messages exchanged between Reith and Tammy hours before her death. Through the text messages, Reith and Tammy agreed that she would come to Reith’s apartment that evening to visit with Dylan. None of the text messages discussed Dylan’s absence from Reith’s home or their ongoing custody issues.

¶ 8. Dr. Amy Gruszecki performed the autopsy on Tammy’s body. She testified that, during her external examination of Tammy’s body, she found lacerations and bruises to Tammy’s arms and hands. She classified these wounds as “defensive type injuries.” Additionally, Dr. Gruszecki noted that Tammy had been stabbed at least five times. She identified multiple lacerations and bruising around Tammy’s right eye, across the bridge of her nose, over the eyelid of her left eye, and along the side of her left cheek. Tammy’s upper and lower jaw and skull were fractured. Dr. Grusz-ecki identified the cause of death as blunt and sharp-force injuries.

¶ 9. Reith testified that on the day of the incident, he had requested that Tammy come over to play with Dylan. He stated that they agreed in a subsequent phone conversation that they would discuss their custody issues and that Dylan should not be at Reith’s apartment while they talked. Reith further testified that after they finished talking, they intended to pick Dylan up from Reith’s parents’ house. According to Reith, when Tammy arrived at his apartment, she made sure that Dylan was not there before she entered. After walking around the apartment, Tammy turned to Reith and “made a comment that she was going to be taking Dylan out of the state, that now there was nothing that [he] was going to be able to do about it, and that [he] would never, ever see [Dylan] again.” Reith stated that when Tammy turned to leave, he grabbed her to stop her from leaving. His hand brushed against an object as he turned her around to face him. He picked up the object and hit her. He could not remember what he hit her with, could not remember how many times he hit her, and did not remember stabbing her. Reith admitted that he killed Tammy but insisted that he blacked out during the process. He stated that he had never blacked out before the day that he killed Tammy and has not blacked out since.

¶ 10. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Jury Instruction S-5

¶ 11. Reith contends that the circuit court erroneously gave jury instruction S-5 because it incorrectly stated the law on deliberate design. Instruction S-5 states:

The Court instructs the Jury that deliberate design means intent to kill, without authority of law and not being legally justifiable, legally excusable[,] or under circumstances that would reduce the act to a lesser crime.
A deliberate design cannot be formed at the very moment of the fatal aet[;] however, the deliberate design need not exist in the mind of the [defendant for any definite time, not for hours, days or even minutes, but if there is deliberate design, and it exists in the mind of the defendant but for an instant before the fatal act, this is sufficient design to constitute the offense of murder.
Deliberate design may be presumed from the unlawful and deliberate use of a deadly weapon.
Malice aforethought and deliberate design mean the same thing.

¶ 12. Reith argues that the statement “[d]eliberate design may be presumed from the unlawful and deliberate use of a deadly weapon” is a prejudicial, incorrect statement of law. At the outset, we note that Reith’s trial counsel did not object to this part of the instruction at trial. At trial, Reith’s counsel objected to the instruction’s language concerning when deliberate design could be formed. It is well established that a party opposing an instruction must state a contemporaneous objection in specific terms in order to preserve that point for appeal. Boyd v. State, 47 So.3d 121, 124 (¶ 10) (Miss.2010). Further, on appeal a party may not argue that an instruction is erroneous for a reason other than the reason that was the basis for the objection at trial. See Woodham v. State, 779 So.2d 158, 161 (¶ 12) (Miss.2001). Reith’s objection at trial to instruction S-5 did not target the specific language targeted here on appeal. In fact, Reith’s trial counsel suggested an alternative jury instruction in place of S-5 and offered to add the very statement that Reith now seeks to have declared an incorrect statement of the law. Thus, we find Reith’s claim is proeedurally barred.

¶ 13. Procedural bar aside, we agree that the statement contained in jury instruction S-5 regarding the presumption of deliberate design was improper. However, we find that giving the instruction with the included language was harmless error. “Generally, jury instructions are to be read as a whole.” Boyd, 47 So.3d at 124 (¶ 11) (citations and internal quotations omitted). “[D]efects in specific instructions will not mandate reversal when all of the instructions, taken as a whole[,] fairly — although not perfectly — announce the applicable primary rules of law.” Id. (quoting Utz v. Running & Rolling Trucking, Inc., 32 So.3d 450, 474 (¶ 78) (Miss. 2010)). “If the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Id. (quoting Harris v. State, 861 So.2d 1003, 1014 (1121) (Miss.2003)).

¶ 14. The Mississippi Supreme Court has previously condemned the exact language that Reith challenges on appeal. See Tran v. State, 681 So.2d 514, 518 (Miss.1996). In Tran, the court noted that “malice aforethought, premeditated design, and deliberate design all mean the same thing.” Id. at 517 (quoting Windham v. State, 602 So.2d 798, 801 (Miss.1992)). Furthermore, even though deliberate design may be presumed from the unlawful and deliberate use of a deadly weapon, a jury instruction presenting that presumption “may only be used where the evidence has failed to establish the circumstances surrounding the use of the weapon.” Id. (citations and quotations omitted).

¶ 15. In Tran, the defendant, while riding in a car driven by his codefendant, shot and killed the victim with a shotgun. Id. at 515. The defendant testified that he shot the victim because the victim reached for a gun. Id. A -witness to the shooting testified that she saw the defendant in the car’s passenger seat and saw “the barrel of the gun come out of the passenger side.” Id. at 516. The witness did not see the shooting itself. Id. The codefendant testified that the victim only had his hand on the gun and was not drawing the gun to shoot. Id. at 520-21. The court determined that the facts of the shooting had been sufficiently established during trial through the defendant’s testimony and the testimony of two additional witnesses. Id. at 518. Therefore, the circuit court erred in giving the jury instruction regarding the presumption of malice or deliberate design. Id.

¶ 16. Just as in Tran, the circuit court erred in allowing the presumption language to remain in jury instruction S-5. Lieutenant McKenzie’s testimony concerning statements that Reith made to him during the booking process established the circumstances surrounding the use of the weapons to kill Tammy. Lieutenant McKenzie testified as follows:

He just asked me about does Mississippi still have the death penalty. I told him, “Yes.” And he said, “Good.”
* * *
I told him, “You’re not eligible for the death penalty.” He said, “Why not?” I asked, “Did you rob Tammy before you killed her?” And he replied, “No.” I asked him, “Did you rape Tammy before you killed her?” He replied, “No.” I replied, “So you didn’t rape or rob her before you killed her. You just beat her to death with a wrench and then stabbed her in the neck with a knife, right? He replied, “Right.”

¶ 17. In addition to this statement from Lieutenant McKenzie, the State presented evidence regarding the hectic relationship between Reith and Tammy before he killed her. Furthermore, even though Reith testified that he does not remember what weapons he used to kill Tammy, he does not deny that he killed her with the crescent wrench or the knife. Because the circumstances surrounding the use of the weapons were established, the jury should not have been instructed that deliberate design could be presumed from the use of the deadly weapon. However, in light of the overwhelming evidence against Reith and the other jury instructions, we find the circuit court’s error harmless. Errors in jury instructions are subject to a harmless-error analysis. See Neder v. United States, 527 U.S. 1, 8-10, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999); Kolberg v. State, 829 So.2d 29, 49-51 (¶¶ 39-40) (Miss.2002). “[E]ven where error has occurred, [an appellate court] will not reverse a conviction when the overwhelming weight of the evidence supports the guilty verdict,” and “the jury was fully and fairly instructed by other instructions.” Kolberg, 829 So.2d at 49 (¶¶ 37-38) (citations omitted).

¶ 18. Here, jury instruction S-1A presented the elements of murder and heat-of-passion manslaughter to the jury. The last paragraph of instruction S-1A informed the jury that the State must prove every element of either crime beyond a reasonable doubt before the jury could find Reith guilty. We find that, despite the language in instruction S-5, the jury was fully and fairly instructed of the State’s burden in proving Reith’s guilt. Additionally, the State presented overwhelming evidence from which the jury could infer that Reith lured Tammy to his apartment, under the guise of visiting with their son, with the intent to kill her. Although Reith insists that Tammy knew that Dylan would not be there, the evidence demonstrates otherwise. Furthermore, Reith never denied killing Tammy. He only stated that he “blacked out” before he killed her.' We cannot say that the jury would have found Reith innocent had the circuit court refused instruction S-5. Thus, any error in granting jury instruction S-5 was harmless. This issue is without merit.

2. Defense’s Theory of the Case

¶ 19. Reith argues that the circuit court improperly limited his theory of the case because it would not allow evidence of Reith’s mental state, or evidence of Tammy’s pending criminal charges. The circuit court’s admission or exclusion of testimony is reviewed for abuse of discretion. Gillett v. State, 56 So.3d 469, 494 (¶ 61) (Miss.2010). An appellate court will not reverse the circuit court’s decision unless “the decision was arbitrary and clearly erroneous, amounting to an abuse of discretion.” Id. Additionally, the trial court’s discretion “must be exercised within the scope of the Mississippi Rules of Evidence.” Rogers v. State, 95 So.3d 623, 627 (¶ 13) (Miss.2012) (citing Price v. State, 898 So.2d 641, 653 (¶ 29) (Miss.2005)).

a. Psychological Evaluation

¶ 20. Prior to Reith’s trial, the circuit court excluded a psychological evaluation from Dr. Trudi Zaplac, who characterized Reith as having a passive nature such that “one would expect him to be at high risk to explode with fear and rage.” Concerning Reith’s attachment to his son, Dr. Zaplac noted that Reith’s life

was much more child centered than is typical for a 32[-]year[-]old bachelor.... Thus, a credible threat to permanently take his child away from him would be, psychologically, tantamount to a threat to his own existence; one to which he would be expected to have an extreme emotional reaction.

Dr. Zaplac concluded that Reith “attacked [Tammy] in a fit of rage and [with a] loss of impulse control and that he did not plan her death in advance of the events that caused it.”

¶21. Reith characterizes Dr. Zaplac’s report as “expert psychological evidence of heat of passion.” However, our supreme court has previously stated that, unlike insanity, the issue of heat of passion is considered to be “within the scope of the average juror’s knowledge or experience.” Taylor v. State, 452 So.2d 441, 448 (Miss.1984). Therefore, “the distinction between murder and manslaughter [are] left to the jury for determination without evidence adduced by expert opinion.” Id. As Reith’s defense is that he acted in the heat of passion, the issue here is not his subjective state of mind. The question for the jury was whether Reith acted in the heat of passion and without malice. That question “is an objective one, being whether a reasonable man would have been so provoked. Such a standard presupposes an individual without serious mental and emotional defects.” Id. at 449 (citations and quotations omitted). Thus, where insanity is not the defense, “[t]o permit comment on the subjective intentions of an accused by a witness based on conclusions reached from his observation invades the province of the fact[-]finders. The issue of intent must be decided by the jury from the evidence in the case and not the conclusion of others.” Id. at 450 (quoting Newell v. State, 308 So.2d 71, 73 (Miss. 1975)). Reith did not assert insanity as his defense or any defense in which his state of mind would have been in issue. Therefore, whether he acted in the heat of passion was a consideration for the jury and was not open to expert testimony. This issue is without merit.

b. Tammy’s Pending Criminal Charges

¶ 22. Prior to trial, the circuit court also excluded evidence of Tammy’s pending solicitation charges. The court ruled that the evidence was inadmissible under Rule 609 of the Mississippi Rules of Evidence, as Tammy had not been convicted of solicitation before her death. Additionally, the court determined that, in relation to Rule 403 of the Mississippi Rules of Evidence, the danger of unfair prejudice from the evidence substantially outweighed the evidence’s probative value. Nevertheless, Reith maintains that evidence of Tammy’s pending criminal charges was admissible under Rule 404(a)(2) of the Mississippi Rules of Evidence. We disagree.

¶ 23. Rule 404(a)(2) provides that evidence of the victim’s character is inadmissible except where “[e]vidence of a pertinent trait of character of the victim of the crime [is] offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim [is] offered by the prosecution to rebut evidence that the victim was the first aggressor.” Evidence of the victim’s character is generally allowed when the accused claims that the victim was the initial aggressor and that his actions were in the nature of self-defense or defense of others. M.R.E. 404 cmt. Reith, however, has not claimed that Tammy was an aggressor and that he killed her in self-defense or in defense or another. Therefore, we see no basis for allowing Tammy’s pending criminal charges admitted into evidence, especially where the crimes do not reflect on Tammy’s character for truthfulness, dishonesty, violence, or peacefulness. Accordingly, the circuit court did not err in excluding this evidence. This issue is without merit.

3. Insufficient Evidence

¶ 24. Reith maintains that there is insufficient evidence to support his murder conviction. Particularly, he claims that he was entitled to an acquittal for murder under the principle announced in Weathersby v. State, 165 Miss. 207, 209, 147 So. 481, 482 (1933). Weathersby provides 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 [S]tate, or by the physical facts or by the facts of common knowledge.

Id. Reith did not raise the Weathersby-rule defense at trial or in a motion for a new trial. Consequently, his argument is procedurally barred. See Page v. State, 64 So.3d 482, 489 (¶ 29) (Miss.2011).

¶ 25. Procedural bar notwithstanding, Reith’s argument is without merit. When reviewing a challenge to the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Watts v. State, 78 So.3d 901, 903-04 (¶ 12) (Miss. 2012) (quoting Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005)). Appellate courts will not disturb the conviction if, “having in mind the beyond[-]a[-]reasonable[-]doubt[-]burden[-]of[-]proof standard, reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense[.]” Williams v. State, 35 So.3d 480, 485 (¶ 16) (Miss.2010) (quoting Bush, 895 So.2d at 843 (¶ 16)).

¶ 26. Reith’s own assertion that he “blacked out” during this incident prevents a Weathersby-rule application to this case. Even if the court were to accept as fact that he “blacked out,” he could not be considered an eyewitness to the crime, and, consequently, would be unable to provide a version of events for the circuit court to accept. Thus, Weathersby is inapplicable. Furthermore, there is sufficient evidence to support the jury’s verdict. The State presented evidence that showed that Reith and Tammy had an ongoing custody dispute. In fact, Reith had petitioned the chancery court two weeks prior to Tammy’s death to prevent her from seeing their son. Additionally, Reith invited Tammy to his apartment by telling her that she could spend time with their son. The testimony showed that their son was not home, and Reith knew that Dylan would not be there when Tammy arrived. Although Reith claims that Tammy knew that they were going to discuss their custody issues and that she requested that their son not be at home, there is no evidence to support his claim other than his bare testimony. The State also presented evidence that Reith beat Tammy using the adjustable crescent wrench wrapped in duct tape and that he stabbed her repeatedly using a kitchen knife. The proximity of the crescent wrench to Reith at the moment that he began to attack Tammy and the alteration of the wrench suggest that Reith planned, prior to Tammy’s arrival at his apartment, to kill her after she arrived.

¶ 27. Based on the above, we find that any rational trier of fact could have found, beyond a reasonable doubt, that Reith acted with deliberate design to kill Tammy. Accordingly, this issue is without merit.

U. Ineffective Assistance of Counsel

¶ 28. Reith contends that his trial counsel’s failure to “properly object” to jury instruction S-5 and his failure to file any post-trial motions constitute ineffective assistance of counsel. In Williams v. State, 73 So.3d 1125, 1128 (¶ 12) (Miss.2011), our supreme court noted that ineffective-assistance-of-counsel claims are analyzed under the two-prong test promulgated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 29. It is well established that: [i]n order to prevail on a claim of ineffective assistance of counsel, a defendant must prove that his attorney’s performance was deficient, and that the deficiency was so substantial as to deprive the defendant of a fair trial.... Judicial scrutiny of counsel’s performance is highly deferential. There is a strong but rebuttable presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Only where it is reasonably probable that but for the attorney’s errors, the outcome of the trial would have been different, will [appellate courts] find that counsel’s performance was deficient.

Williams, 73 So.3d. at 1129 (¶ 12) (citing Parker v. State, 30 So.3d 1222, 1233 (¶ 37) (Miss.2010)) (internal quotations omitted). Generally, we do not consider ineffective-assistance-of-counsel claims on direct appeal unless there is sufficient evidence within the record to evaluate the claim. Id. at (¶ 13). However, despite the State’s refusal to stipulate that the record is adequate to allow a review of the merits of Reith’s claims, we find that the record before us is sufficient to address the merits of Reith’s ineffective-assistance claim.

¶ 30. As discussed in Issue 1, jury instruction S-5 included an improper statement, based on the facts of this case, as to the presumption of deliberate design. Therefore, Reith’s trial counsel was deficient for failing to object to instruction S-5. However, as we have determined that inclusion of the language in the instruction was harmless error, Reith cannot meet his burden of proof with respect to the second element — that is, that but for his counsel’s deficient performance, the outcome at trial would have been different.

¶ 31. Reith also claims that his counsel’s failure to file post-trial motions amounted to ineffective assistance of counsel because that failure prevented him from challenging the weight of the evidence presented against him at trial. He relies on our supreme court’s ruling in Holland v. State, 656 So.2d 1192, 1197 (Miss.1995), for the proposition that counsel’s failure to file post-trial motions amounts to ineffective assistance of counsel. However, Holland is distinguishable from Reith’s case. In Holland, before reaching the defendant’s ineffective-assistance-of-counsel claim, the court concluded that there was insufficient evidence to support his conviction. Id. at 1196-97. This conclusion established the second prong of the Strickland test and supported Holland’s claim that but for his attorney’s deficient performance, there was a reasonable probability that the outcome of his trial would have been different. Id. at 1198. Therefore, Holland actually stands for the proposition that the failure to file post-trial motions amounts to ineffective assistance of counsel in cases where the evidence is insufficient to support the verdict.

¶ 82. Here, unlike the court in Holland, we have concluded that there is sufficient evidence to support the jury’s verdict. Furthermore, Reith has failed to point us to any evidence in the record, and we have found none, to suggest that had Reith’s attorney challenged the weight of the evidence against him, there is a reasonable probability that the circuit court would have granted him a new trial. Therefore, even assuming that his counsel’s failure to file a post-trial motion was deficient, Reith has not satisfied the second prong of Strickland. Accordingly, this issue is without merit.

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

LEE, C.J., ISHEE AND FAIR, JJ., CONCUR. GRIFFIS, P.J., BARNES, ROBERTS AND MAXWELL, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., NOT PARTICIPATING.

      . We note that the record does not indicate that Reith offered a proffer of Dr. Zaplac’s qualifications or that the State stipulated to Dr. Zaplac’s qualifications as an expert in this area. Additionally, the State has not raised an objection based on the scientific data, or the lack thereof, supporting Dr. Zaplac’s report. Although the State has not raised these issues, we pause to note that our ruling on this issue in no way implicates that Dr. Za-plac’s "expert testimony” would have been sound under a Daubert analysis. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589-95, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).


source: Caselaw Access Project

author: BARNES, J., for the Court:

license: Public Domain

text:
    ROD COOKE CONSTRUCTION COMPANY, INC., Appellant v. LAMAR COUNTY SCHOOL BOARD, Appellee.
    No. 2012-CA-00339-COA.
    Court of Appeals of Mississippi.
    Oct. 1, 2013.
    Rehearing Denied Jan. 28, 2014.
    Certiorari Denied April 10, 2014.

      Christopher Solop, attorney for appellant.
    David M. Ott, Hattiesburg, Joseph Ran-dle Tullos, Richard D. Norton, attorneys for appellee.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   BARNES, J., for the Court:

¶ 1. On July 8, 2011, the Lamar County School Board (Board) issued a solicitation for bids for the construction of a new elementary school. Rod Cooke Construction Company (Cooke), a nonresident contractor from Alabama, submitted the lowest bid of $9,232,000. The second lowest bid was submitted by Hanco Corporation (Hanco), a Mississippi resident contractor. Hanco’s bid was $9,321,000 ($89,000 more than Cooke’s bid).

¶ 2. At the September 28, 2011 Board meeting, the proposed bids for construction of the elementary school were discussed, and the three lowest bids were considered. The minutes from the meeting noted:

Board Counsel provided a narrative summary of the job performance of the two companies, Rod Cooke Construction and Hanco Corporation. Counsel reported that the information provided as a summary was obtained from various sources including contact with contractors, architects, subcontractors^] and property owners. There were positive comments for both bidders, and the summary of negative comments [is] as follows:
Rod Cooke Construction:
1. A lack of coordination of some projects between the general and subcontractors resulted in delay in completion.
2. Occasional delay in paying subcontractors timely has created negative attitudes and problems with subcontractors.
3. Dissatisfaction with the workmanship from the perspective of a few owners.
4. Delay in completing time sensitive projects.
Hanco:
1. Delay in completing a project-not a time sensitive project.
Upon hearing the information from [Board Counsel], Dr. Burnett recommended that the Board proceed with awarding the bid and that they accept the Hanco Corporation bid.
Buddy Morris then made a motion to award the bid to Hanco [Corporation] based on the preference to resident contractors and based on Hanco [Corporation] being the “lowest and best bid” as well as “substantially equal” in cost to Rod Cooke Construction.

Thus, the Board awarded the job to the second lowest bidder, Hanco.

¶ 3. On September 29, 2011, Cooke filed a protest; however, the Board did not reconsider its decision to reject Cooke’s bid. Board counsel sent a letter to Cooke on October 6, 2011, outlining the Board’s reasons for awarding the bid to Hanco. Cooke filed a notice of appeal with the Lamar County Circuit Court on October 10, 2011; Cooke’s bill of exceptions, signed by the Board president, was filed on October 11, 2011. A hearing was held on February 6, 2012, and the circuit court affirmed the Board’s decision to award the job to Hanco.

¶ 4. On appeal, we find that the Board’s award of the contract to Hanco was not arbitrary or capricious, and we uphold the circuit court’s judgment.

STANDARD OF REVIEW

¶ 5. Our review of a municipal board’s actions is limited. Precision Commc’ns, Inc. v. Hinds Cnty., 74 So.3d 366, 369 (¶ 9) (Miss.Ct.App.2011) (citing Nelson v. City of Horn Lake ex. rel. Bd. of Aldermen, 968 So.2d 938, 942 (¶ 10) (Miss. 2007)).

[W]e will not set aside the action of the governing body of a municipality unless such action is clearly shown to be arbitrary, capricious, or discriminatory or is illegal or without substantial evidentiary basis. An act is arbitrary and capricious when it is done at pleasure, without reasoned judgment or with disregard for the surrounding facts and circumstances. Substantial evidence is such relevant evidence as reasonable minds might accept as adequate to support a conclusion or more than a mere scintilla of evidence.

Id. (internal citations and quotation marks omitted). Questions of law and issues of statutory interpretation, however, are reviewed de novo. Id.

DISCUSSION

I. Whether the “Instructions to Bidders” required the Board to award the contract to Cooke as the low bidder and whether the Board’s investigation into Cooke’s past performance was arbitrary, capricious, and self-serving.

¶ 6. Cooke contends that language in the “Instructions to Bidders” required the Board to accept the lowest bid offer and that the bid documents should have reflected that past performance would be considered in awarding the bid. The “Instructions for Bidders” stated:

Award of Contract: Contract will be awarded on the basis of the low base bid or low combination of base bid and those alternates if any which produce a total within available funds. The Owner reserves the right to waive irregularities and to reject any and all bids.

However, the instructions also noted: “Disqualification of Bidder: ‘The Owner reserves the right to award to other than the low bidder when, in the Owner’s judgment, it is in his best interest to do so.’ ”

¶ 7. Mississippi Code Annotated section 31 — 7—13(d)(i) (Supp.2012), which governs the bidding process for awarding public contracts, states:

Purchases may be made from the lowest and best bidder.... If any governing authority accepts a bid other than the lowest bid actually submitted, it shall place on its minutes detailed calculations and narrative summary showing that the accepted bid was determined to be the lowest and best bid, including the dollar amount of the accepted bid and the dollar amount of the lowest bid.

(Emphasis added). “It is implicit in this language that a governing body cannot be compelled to accept a bid simply because it is the lowest, and that other factors must enter the analysis.” Billy E. Burnett, Inc. v. Pontotoc Cnty. Bd. of Supervisors, 940 So.2d 241, 243 (¶ 6) (Miss Ct.App.2006). Even prior to the enactment of section 31-7-13, the Mississippi Supreme Court held: “The ‘lowest’ bid may be determined by monetary standards with the dollar as the unit, but this is not so in determining the ‘best’ bid, or the ‘responsible’ bid; that question involves a number of other factors and elements.” Parker Bros. v. Crawford, 219 Miss. 199, 208, 68 So.2d 281, 284 (1953). Thus, an administrative agency is not required to accept the lowest bid, without any regard as to whether it is also the “best” bid.

¶ 8. The Board complied with the statutory requirements of section 31-7-13(d)(i). Included in the record is a “narrative summary” detailing the basis for the Board’s award of the contract to Hanco. Also included are the detailed calculations of the two bids. The bid documents clearly state that the Board could award a contract to a bidder that was not the lowest bidder if the Board determined that it was “best” to do so. Accordingly, we find Cooke’s claim that the bid documents required the Board to accept the lowest bid without merit.

¶ 9. Cooke also argues that past performance was not a criterion specified in the solicitation for bids and that the Board’s investigation into Cooke’s past performance with other entities was not “fair and objective” and was “the epitome of arbitrary and capricious conduct by a public body.”

¶ 10. Cooke maintains that prior payment disputes with suppliers should not have been taken into consideration, as its suppliers were protected by a payment bond. However, the supreme court rejected this argument in Nelson, 968 So.2d at 946 (¶ 33):

This Court has held that where bond is given under Mississippi Code Annotated Section 85-7-185 (Rev.1999), the bond serves in lieu of any equity or trust in favor of materialmen and laborers. See Dickson v. United States Fid. & Guar. Co., 150 Miss. 864, 117 So. 245, 248 (1928). Even though Section 85-7-185 affords protection for “persons furnishing labor or material,” neither this provision nor Mississippi case law prohibits a governing authority from considering a contractor’s prior disputes with creditors. Miss.Code Ann. § 85-7-185 (Rev. 1999). The aggregate of such disputes may bear upon the contractor’s honesty, integrity, business judgment, conduct under previous contracts, and pecuniary ability — all of which have been held to be appropriate considerations in awarding a public contract. See Parker Bros., [219 Miss, at 208-09,] 68 So.2d at 284-85.

Furthermore, not all of the complaints concerned payment issues; some alleged deficient workmanship and project-management problems. The project architect’s letter to the Board reveals that he investigated both Cooke and Hanco in an equal manner, contacting seven prior references for each. We note that there was also some positive feedback concerning Cooke’s performance included in the letter.

¶ 11. As we have already noted, Mississippi’s appellate courts have consistently stated that the law permits a governing authority to consider factors other than price in determining who is the lowest and best bidder. In Burnett, 940 So.2d at 243 (¶ 6), this Court stated:

The Mississippi Supreme Court has recognized that public authorities may, in making a determination of whether a bid is the lowest and best, take into consideration factors such as the bidder’s honesty and integrity, the bidder’s skill and business judgment, the bidder’s experience and facilities for carrying out the contract, the bidder’s conduct under previous contracts, and the quality of work previously done by the bidder.

(Emphasis added) (citing Parker Bros., 219 Miss, at 209, 68 So.2d at 285). One year later, the supreme court reiterated in Nelson:

All matters that relate to a bidder’s prompt and efficient performance of the contract are material to a bidder’s “responsibility,” including the bidder’s honesty and integrity, skill and business judgment, experience and facilities for performing the contract, conduct under previous contracts, and the quality of previous work.

Nelson, 968 So.2d at 943 (¶ 16) (citing Parker Bros., 219 Miss. at 208-09, 68 So.2d at 284-85).

¶ 12. In the present case, the Board reviewed the bids and asked the project architect and others to gather and provide information regarding previous work and experience of the two lowest bidders. As stated by the Board on appeal, “[t]here is no precedent for allowing the bidders to dictate to a public body the limits or methodology of the investigation the body should conduct[.]” Furthermore, Cooke has provided no case law to support its argument that a public entity must put prospective bidders on notice that past performance is a criterion for award of a contract. Accordingly, we agree with the circuit judge that the Board’s actions were “reasonable under the circumstances.”

II. Whether the circuit court erred in finding that Mississippi’s preference statutes, Mississippi Code Annotated section 31-3-21(3) (Rev.2010) and Mississippi Code Annotated section 31-7-47 (Rev. 2010), permitted the Board to award the contract to Hanco.

¶ 13. The Board minutes reflect that one of the reasons Hanco was awarded the contract, despite not being the lowest bidder, was the preference given to Mississippi resident contractors. In response to Cooke’s protest of the Board’s decision, counsel for the Board submitted a letter, stating:

The award to Hanco was based on a preference for resident contractors and based on lowest and best bid.... Neither the Board nor I have ever indicated that Cooke Construction is not a responsible contractor. The Board simply voted that Hanco ... was the lowest and best bid for this project.

¶ 14. Mississippi Code Annotated section 31-7-47 states:

In the letting of public contracts!,] preference shall be given to resident contractors, and a nonresident bidder domiciled in a state, city, county, parish, province, nation or political subdivision having laws granting preference to local contractors shall be awarded Mississippi public contracts only on the same basis as the nonresident bidder’s state, city, county, parish, province, nation or political subdivision awards contracts to Mississippi contractors bidding under similar circumstances. Resident contractors actually domiciled in Mississippi, be they corporate, individuals or partnerships, are to be granted preference over nonresidents in awarding of contracts in the same manner and to the same extent as provided by the laws of the state, city, county, parish, province, nation or political subdivision of domicile of the nonresident.

(Emphasis added). Mississippi Code Annotated section 31-3-21(3) also states, in pertinent part:

In the letting of public contracts, preference shall be given to resident contrac tors, and a nonresident bidder domiciled in a state having laws granting preference to local contractors shall be awarded Mississippi public contracts only on the same basis as the nonresident bidder’s state awards contracts to Mississippi contractors bidding under similar circumstances; and resident contractors actually domiciled in Mississippi, be they corporate, individuals, or partnerships, are to be granted preference over nonresidents in awarding of contracts in the same manner and to the same extent as provided by the laws of the state of domicile of the nonresident.

(Emphasis added).

¶ 15. Cooke argues that the Mississippi “preference” statutes “are only intended to protect Mississippi contractors from preference laws being used against them when bidding projects in other jurisdictions.” Cooke cites Refrigeration Sales Co., Inc. v. State of Mississippi, 645 So.2d 1851 (Miss. 1994), to support its argument. In that case, the Mississippi Supreme Court reversed the State of Mississippi’s award of a contract to a vendor, finding that since the State of New York did not have a preference statute, the “application of the bid preference is misguided because of the lack of similar circumstances and the lack of reciprocity in the process.” Id. at 1855.

¶ 16. The question is whether Alabama would grant its contractors preference over Mississippi contractors under the same circumstances. Alabama, Cooke’s resident state, has a preference statute for resident contractors that is similar to the Mississippi preference statutes. Alabama Code section 39-3-5(a) (1975) states:

In the letting of public contracts in which any state, county, or municipal funds are utilized, except those contracts funded in whole or in part with funds received from a federal agency, preference shall be given to resident contractors, and a nonresident bidder domiciled in a state having laws granting preference to local contractors shall be awarded Alabama public contracts only on the same basis as the nonresident bidder’s state awards contracts to Alabama contractors bidding under similar circumstances; and resident contractors in Alabama, as defined in Section 39-2-12, be they corporate, individuals, or partnerships, are to be granted preference over nonresidents in awarding of contracts in the same manner and to the same extent as provided by the laws of the state of domicile of the nonresident.

(Emphasis added).

¶ 17. This Court considered a similar situation in Burnett, 940 So.2d 241. Billy Burnett was a nonresident contractor from Alabama. Although Burnett submitted the lowest bid, Pontotoc County awarded the contract to the second lowest bidder, who was a Mississippi resident contractor. We recognized the supreme court’s holding in Refrigeration Sales, noting that “the legislative purpose of Section 31-7-47 is to give preference to contractors who are residents of the State of Mississippi.” Id. at 244-45 (¶ 11). However, we observed that “the extent of the preference is not clear from the text of the statute, and has not been clarified via case law.” Id. at 245 (¶ 11). We deferred ruling on the issue of statutory preference in Burnett, because the circuit court “found an independent basis for the award to Hooker, namely, that the board rightly considered the relative experience and reputation of the two firms, and made the award to Hooker after taking these factors into consideration.” Id. at (¶ 13).

¶ 18. As noted in the Burnett opinion, the circuit court’s ruling was based in part on the Mississippi Attorney General’s “approach to [the] issue.” Id. at (¶ 12). The Attorney General’s Office has issued several opinions interpreting the preference conferred by sections 31-3-21(3) and 31-7-47, in one instance noting that “[t]he intent of [section 31-7-47] was to afford Mississippi contractors the right to compete on a equal basis with nonresident vendors having preference laws in their respective state[s].” Miss. Att’y- Gen. Op., 1991 WL 577578, Segrest (Mar. 25, 1991) (emphasis added).

¶ 19. The Attorney General has also consistently opined that “[i]f the preference laws of the state of the nonresident contractor are the same as Mississippi’s, and if the bids are in all other respects equal, then Mississippi law would grant preference to the Mississippi bidder.” Miss. Att’y Gen. Op., 1991 WL 577847, Henley (July 31, 1991) (emphasis added); see also Miss. Att’y. Gen. Op., 2006-00148, 2006 WL 1966813, Dye (May 19, 2006) (“The purpose of bid preference statutes is to protect resident contractors and give preference to these contractors over nonresident contractors in situations in which the bids are equal or substantially equal.”);’ Miss. Att’y Gen. Op., 2001-00480, 2001 WL 1082606, Brown (Aug. 17, 2001) (“If the preference laws of the state of the nonresident contractor are the same as Mississippi’s, and if the bids are in all other respects equal or substantially equal, then Mississippi law would grant preference to the Mississippi bidder.”); Miss. Att’y Gen. Op., 93-0043, 1993 WL 669222, Cardin (March 17, 1993) (“[T]he preference granted by Section 31-3-21(3) would apply only when the public body is considering bids that are equal or substantially equal under the statutory standards which the body must use to make its determination as to the best bid.”). However, the Attorney General cites no statutory authority for the grant of preference for resident bidders when the bids are otherwise equal, and this Court been unable to find any.

¶ 20. The Mississippi and Alabama statutes are termed “reciprocal preference” statutes — Alabama treats nonresident contractors in the same manner that Mississippi treats nonresident contractors. These types of statutes are “designed to exact equal treatment in cross jurisdictional bidding” and “to ensure equity and fairness in interstate public procurement.” Kingsley S. Osei, The Best of Both Worlds: Reciprocal Preference and Punitive Retaliation in Public Contracts, 40 Pub. Cont. L.J. 715, 734-38 (2011).

¶21. To assist in our analysis, Cooke has provided this Court with the Alabama Attorney General’s interpretation of the effect of this language. In Ala. Att’y Gen. Op., 85-00354, Scoggins (May 15, 1985), the Alabama Attorney General considered the language of Alabama’s section 39-3-5, in relation to Mississippi’s section 31-3-21, and held that an Alabama public body was “not required to give preference to resident Alabama contractors over Mississippi contractors because the Mississippi law treats Alabama contractors in the same manner that Alabama treats Mississippi contractors.” (Emphasis added). Therefore, we find that when the two states’ reciprocal-preference language (“in the same manner and to the same extent”) are employed, they offset one another, creating a situation where no preference can be considered. Consequently, when we consider this specific portion of the statutes, Cooke’s claim that “no such ‘preference’ exists in this instance” is correct.

¶ 22. However, like Burnett, residence was not the sole reason for the award; other factors, such as past performance and vendor and client referrals, were considered. The Board stated in its final bill of exceptions that the preference given to a Mississippi contractor only played a “minor part” in the bid award and “was not an overriding eonsideration[.]” Rather, the Board awarded the bid to Hanco because it was the lowest and “best” bid. Accordingly, while we find merit to Cooke’s argument, it does not warrant a reversal of the Board’s decision to award the bid to Hanco.

III. Whether the Board acted arbitrarily and capriciously in awarding the contract on the basis that it was “equal or substantially equal” to the lowest bid.

¶ 28. As discussed, the Attorney General’s Office has issued opinions stating that preference may be given to a resident contractor under section 31-3-21 if “the public body is considering two apparent low bids that are ‘equal or substantially equal’ and involve the submission of at least one bid from a non-resident contractor.” Miss. Att’y. Gen. Op., 2007-00452, 2007 WL 3356834, Jones (Sept. 4, 2007). Cooke argues that Attorney General opinions are merely advisory and limited to specific factual situations. Thus, it claims that there is no statutory authority that permits a public body to award contracts based on these criteria and for the Board to do so was error. Cooke is correct in one respect. “Attorney General opinions are not binding upon our courts.” Burnett, 940 So.2d at 245 (¶ 13). However, “[a]n [Attorney [G]eneral’s opinion is entitled to careful consideration and regarded as persuasive[J” Blackwell v. Miss. Bd. of Animal Health, 784 So.2d 996, 1000 (¶ 9) (Miss.Ct.App.2001) (citing State ex rel. Holmes v. Griffin, 667 So.2d 1319, 1326 (Miss.1995)).

¶ 24. The Attorney General has advised:

Although it appears to us that a difference of 2% is substantial, whether bids are equal or substantially equal is a discretionary determination that the public body itself must initially make and that should be explained in the minutes. If [the public body] determines that bids are or are not equal or substantially equal, then the statutory preference provisions in favor of Mississippi bidders apply or do not apply, respectively.

Miss. Att’y Gen. Op., 2003-0501, 2004 WL 308541, Winfield (Jan. 29, 2004). There is no bright-line distinction as to what percentage variance constitutes an “equal or substantial bid”; this determination is left to the discretion of the public body.

¶ 25. We have already noted that the Attorney General’s emphasis on whether a bid is “equal or substantially equal” in relation to the preference statutes is not rooted in any statute or case law. Regardless, the Attorney General opinions have not eliminated the requirement that a public entity also determine whether a bid is the lowest and “best” bid. The Attorney General has noted that the mandate requiring submission of a foreign state’s bid preference law by the nonresident contractor is designed “to provide public agencies with a means of making any calculations that might be necessary in order to enforce Mississippi’s preference law and to enable the agencies to determine the lowest and best bid without performing additional research.” Miss. Att’y Gen. Op., 2009-00363, 2009 WL 2184252, Dulaney (June 26, 2009) (emphasis added and citation omitted). In a more recent opinion, Miss. Att’y Gen. Op., 2013-00089, 2013 WL 1720568, Price (March 22, 2013), the Attorney General stated:

Governing authorities are obligated to carefully scrutinize each bid for not only the amount of the bid, but also the quality of the bid. In the event that the school district determines, after careful scrutiny of the bids on both amount and quality, that there is still no “best bid,” it will be required to reject all bids and begin the process anew, until it can decide on a “lowest and best bidder.”

(Emphasis added and internal citation omitted).

¶ 26. In Burnett, we upheld an award of contract to the second lowest bidder, even though the price differential was 2.35%. Burnett, 940 So.2d at 243-44 (¶ 7). In the present case, the difference in cost was less than 1%. Upon review, we conclude that the Board’s finding — that a difference of 0.95% meant that the bids were “substantially equal” — was not arbitrary or capricious. More importantly, the Board was justified in finding that Hanco’s bid was the lowest and “best” bid.

IV. Whether the Board was without authority to determine whether Cooke was a “responsible” contractor.

¶ 27. Cooke argues that since it held a “Certificate of Responsibility” from the Mississippi State Board of Contractors (MSBOC), it should have been awarded the contract as the “lowest and best bidder.” In other words, Cooke claims that the MSBOC has the “sole discretion to decide whether a contractor is responsible and should be permitted to hold a certificate of responsibility.” Therefore, it contends that the Board “usurp[ed] the authority of the MSBOC and establish[ed] its own criteria for awarding this public contract to the second low bidder at an additional cost of $89,000[.]”

¶ 28. Section 31-7-18(d)(i) gives a public board the discretion to accept a bid that is not the lowest, as long as it provides detailed calculations and a narrative summary as to why it did so. This was done in the present case. Furthermore, as the Board noted on appeal, all vendors that submitted bids possessed a valid “Certificate of Responsibility.” Consequently, we find nothing arbitrary or capricious in the Board’s determination that Cooke’s bid was not the “best” bid.

V. Whether the circuit court erred in allowing the Board to amend its bill of exceptions.

¶ 29. The circuit court scheduled a hearing on February 6, 2012, to consider Cooke’s bill of exceptions and to review the Board’s decision. A few days prior to the hearing, on January 27, 2012, Cooke filed a motion to supplement the record. The Board responded to the motion on January 30, 2012, and requested that the hearing be rescheduled in light of this last-minute information submitted by Cooke. The Board also filed an amended “Final Bill of Exceptions” on February 2, 2012. Cooke responded with a motion to strike the Board’s final bill of exceptions on February 3, 2012.

¶ 30. Cooke contends there is no statutory or legal authority that permitted the Board to amend the bill of exceptions. Cooke cites Mississippi Code Annotated section 11-51-75 (Rev.2012) to support its claim that only a party “aggrieved by a judgment” may file a “bill of exceptions” with the circuit court. Thus, Cooke argues that the final bill of exceptions is an improper response to its motion to supplement the record. Cooke further claims that the amended bill of exceptions violated Mississippi Code Annotation section 11-7-211 (Rev.2004), which requires:

Bills of exception, with the approval of the trial judge, may be amended at any time before the hearing on appeal, for the purpose of curing omissions, defects, or inaccuracy; but no such amendment shall be made until the parties interested shall have been given five days’ notice of such proposed amendment.

(Emphasis added). Cooke argues that he had only three days’ notice; therefore, the circuit court should not have allowed the Board to amend its response.

¶ 31. This issue was thoroughly considered by the circuit court at the hearing. The Board noted Cooke’s objections and requested a continuance, expressing concern that this procedural issue would be brought on appeal. The circuit judge, responding to arguments by Cooke’s counsel, Christopher Solop, stated:

I have reviewed all of this information, even the information that came in late Friday. And as I told you both in a telephonic hearing, ... this Court doesn’t like to play games with form over substance. I have been pretty open and I’ve allowed you and Mr. [David] Ott [ (Board counsel) ] to present information to the Court. And I’ve been pretty open about allowing this, and I will continue that mode. I’m not going to exclude what you have given me, either one of you.

He concluded that neither party was adversely prejudiced by the failure, stating that “a couple of days in the heat of battle in this litigious process has not impaired either one of your clients.”

¶ 32. First, we agree with the circuit court’s observation that Cooke’s argument regarding the style of the Board’s pleading is one of form over substance. The comment to Rule 7 of the Mississippi Rules of Civil Procedure (“Pleadings Allowed: Form of Motions”) states: “The purpose of Rule 7 is to facilitate the court’s ability to reach a just decision on the merits of a case by providing for a simple and elastic pleading and motion procedure which emphasize substance rather than form.” Moreover, after the circuit court affirmed the Board’s decision at the hearing, Cooke acquiesced to the court’s findings and requested that the style of its own motion be amended:

Mr. Solop: May I, for the record, ask the Court to amend the style of our pleading to supplement the administrative record to a motion to amend the bill of exceptions[?] I think it’s, as you indicated, Your Honor, a matter of form over substance. It was, in fact, a motion that was intended to amend the bill of exceptions. So for the record, I would like it to reflect that.
The Court: I don’t really have a problem with that. Mr. Ott, what do you say?
Mr. Ott: Your Honor, I think that it might be cleaner and neater and in harmony with what your Honor has articulated if the Court ruled that the bill of exceptions and the record before the Court on appeal clearly consisted of both Mr. Solop’s supplement that was presented and filed on January 26 [,] as well as the final bill of exceptions presented on Thursday of last week.

(Emphasis added).

¶ 33. As to Cooke’s second point of contention, there is no question that the Board failed to meet the five-day notice requirement from section 11-7-211. However, Cooke’s motion to supplement the record was filed mere days before the hearing and contained letters intended to contradict any negative representation of Cooke’s reputation. The motion to supplement included a letter to the project architect, dated December 9, 2011, threatening that negative comments against Cooke could result in civil legal action for defamation. Cooke also sent a similar letter to a vendor who had claimed Cooke did not pay for supplies in a timely manner. Thus, the Board notes that its amended final bill of exceptions, filed three days before the hearing, was necessary to clarify and complete the record. It contained affidavits from the letter recipients (the project architect and vendor) affirming their prior statements regarding Cooke’s past performance.

¶ 34. “It is well settled that the bill of exceptions constitutes the record on appeal from a municipality’s decision, and the circuit court must not consider matters that are not a part of that record.” Brinsmade v. City of Biloxi, 70 So.3d 1159, 1165 (¶ 23) (Miss.Ct.App.2011) (citing Pruitt v. Zoning Bd. of City of Laurel, 5 So.3d 464, 469 (¶ 14) (Miss.Ct.App.2008)). In Stewart v. City of Pascagoula, 206 So.2d 325, 328 (Miss.1968), the supreme court held:

The circuit court can only consider the case as made by the bill of exceptions. This is the only record before the circuit court, as an appellate court. If the bill of exceptions is not complete and is fatally defective in that pertinent and important facts and documents are omitted therefrom, then the court does not have a record upon which it can intelligently act.

(Emphasis added). In McKee v. City of Starkville, 97 So.3d 97, 101 (¶ 11) (Miss.Ct. App.2012), this Court found that, although neither party “complied with the procedural requirements[,] ... the bills of exceptions filed with the circuit court contained the ‘pertinent and important facts and documents’ and constituted ‘a record upon which the court could intelligently act.’” (quoting Wilkinson Cnty. Bd. of Supervisors v. Quality Farms, Inc., 767 So.2d 1007, 1012 (¶ 14) (Miss.2000)). Therefore, we concluded that the circuit court had subject-matter jurisdiction over the merits of the appeal.

¶ 35. The issue before both the circuit court and this Court is whether the Board acted in an arbitrary, capricious, or discriminatory manner in rejecting Cooke’s bid. “[0]ur review is limited in scope and ... we may not stray from the record as was presented before the Board when [its] decision was reached.” Mayor & Bd. of Aldermen of Clinton v. Hudson, 774 So.2d 448, 453 (¶ 11) (Miss.Ct.App.2000) (citing Mathis v. City of Greenville, 724 So.2d 1109, 1115 (¶ 26) (Miss.Ct.App.1998)). Cooke’s motion to supplement was entered three months after the filing of its notice of appeal and the original bill of exceptions. The exhibits to the motion to supplement were produced as a result of the Board’s decision (i.e., the letters refuting the vendors’ negative comments and threatening legal action). Consequently, it was not part of the record before the Board when it rendered its decision to award the bid to Hanco. Thus, the original bill of exceptions provided the court with a complete record with which to make an informed decision, and neither Cooke’s motion to supplement nor the Board’s final bill of exceptions was proper to complete the record before the circuit court.

¶ 36. Regardless, the circuit judge concluded at the hearing:

I think to be perfectly clear, the Court is going to allow in everything that I have received to date, period. And then if you want to take that up all on appeal, take it up. But I think the record that I have read is reflective of what has happened.

The circuit judge also stated in the “Order Affirming School Board Decision” filed on February 13, 2012:

[T]he court accepted, reviewed, and placed in [the] record all materials submitted on [February 3, 2012], The parties have both taken advantage of this [,] and the Court has reviewed all information submitted and finds that all parties have had ample and sufficient time to review and to respond to everything that has been presented and is part of the record on this Appeal and the Bill of Exceptions and accepts them as complete and correct.

(Emphasis added). Similar to our holding in McKee, we acknowledge that the procedural requirement was not wholly adhered to in this instance. However, we agree with the circuit court’s finding that any deficiency in notice did not affect the substantial rights of either party, and find no merit to this assignment of error.

CONCLUSION

¶ 37. The Board determined that Hanco had the “lowest and best bid.” Factors affecting the Board’s decision to award the bid to Hanco were: (1) Hanco was a Mississippi resident contractor; (2) Hanco’s bid was only 0.95% higher than Cooke’s bid; and (3) Cooke had received some less-than-favorable reviews from suppliers concerning untimely payment and clients regarding delays in construction. As the Board noted in its response to Cooke’s appeal, timely completion of the school’s construction was “critical”; the school was scheduled for occupation “during Christmas break 2012.” It speculated that any delay would have resulted in additional costs far exceeding the 0.95% difference in bid prices. There is no statutory or case authority that required the Board to award the contract to the lowest bidder, without consideration of these other factors.

¶ 38. As a result, we find no error in the circuit court’s decision to affirm the Board’s award of the contract to Hanco. Cooke’s remaining issues on appeal-that Board members could be held personally liable and that Cooke was entitled to lost profits and attorneys’ fees-are rendered moot by this decision.

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

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

      . We also note that the bid proposals contained prices for excavation and soil removal that, if needed, would require a change order. Cooke’s price per cubic yard was $18; Han-co’s was only $15 per cubic yard for excavation and $10 for soil removal and replacement. Therefore, it is possible that the $89,000 price difference could be decreased if this work had been required.

      . Section 31-3-21(3) requires a nonresident contractor to include its state's preference law with the sealed bid. Failure to do so results in a rejection of the bid. Neither party has brought this as an issue in the present case.

      . See Miss.Code Ann. § 31 — 3—21(1)—(2)


author: CARLTON, J., for the Court:

text:
    Joshua BUCKNER a/k/a Joshua David Buckner, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CA-00868-COA.
    Court of Appeals of Mississippi.
    Oct. 15, 2013.
    Rehearing Denied Feb. 11, 2014.
    Certiorari Denied April 10, 2014.

      Jim Waide, Rachel Pierce Waide, Richard Shane McLaughlin, Tupelo, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   CARLTON, J., for the Court:

¶ 1. Joshua Buckner pled guilty to one count of leaving the scene of an accident and three counts of aggravated driving under the influence (DUI). Buckner subsequently filed a motion for post-conviction relief (PCR), which the trial court denied. Buckner now appeals. Finding no error, we affirm the trial court’s denial of Buckner’s PCR motion.

FACTS

¶ 2. An Oktibbeha County grand jury indicted Buckner on one count of leaving the scene of an accident in violation of Mississippi Code Annotated section 63-3-401 (Supp.2012) and three counts of aggravated DUI in violation of Mississippi Code Annotated section 63-11-30(5) (Supp.2012). These charges stemmed from a single-automobile crash that occurred on April 26, 2008. The automobile crash resulted in the death of one passenger and caused injuries to two other passengers. The State charged Buckner with a separate count of aggravated DUI for each victim, as set forth in Counts II-IV of the indictment. Buckner pled guilty to all four counts in the indictment. On January 28, 2009, the trial court accepted Buckner’s guilty plea. At the sentencing hearing held February 2, 2009, the trial court sentenced Buckner as follows: five years on Count I, leaving the scene of an accident; twenty years on Count II, aggravated DUI; ten years on Count III, aggravated DUI; and ten years on Count IV, aggravated DUI.

¶ 8. After his sentencing, Buckner filed a PCR motion arguing the unconstitutionality of section 63-11-30(5). The trial court denied his PCR motion, finding that the 2004 amendment to section 63-11-30(5) rectified the unconstitutionality of the statute as previously found by the Mississippi Supreme Court in Mayfield v. State, 612 So.2d 1120, 1128 (Miss.1992). Buckner now appeals, alleging that receiving multiple convictions for one act of drunk driving under section 63-11-30(5) violates the Double Jeopardy Clause of the United States Constitution. We affirm the trial court’s dismissal of Buckner’s PCR claim of double jeopardy.

STANDARD OF REVIEW

¶ 4. “When reviewing a [trial] court’s decision to deny a [motion] for post-conviction relief, this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised, the applicable standard of review is de novo.” Graves v. State, 822 So.2d 1089, 1090 (¶ 4) (Miss.Ct.App.2002) (citing Pickett v. State, 751 So.2d 1031, 1032 (¶8) (Miss.1999)).

DISCUSSION

¶ 5. Buckner argues that the trial court erred in denying his PCR motion, asserting that his multiple convictions under section 63-11-30(5) violate the Double Jeopardy Clause.

¶ 6. The United States Supreme Court has held that the Constitution’s Double Jeopardy Clause bars multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 801-03, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989)). The double-jeopardy test, established in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), “instructs courts to determine whether each offense contains an element not present in the other; if not, they are labeled the same offense, for double-jeopardy purposes.” Kelly v. State, 80 So.3d 802, 805 (¶ 11) (Miss.2012). Buckner asserts that pursuant to the applicable test, Counts II, III, and IV of his indictment required the State to prove identical elements.

¶ 7. In Mayfield, 612 So.2d at 1128, the Mississippi Supreme Court held that the language of section 63-11-30 proscribes the act of drinking and driving, not the act of homicide, and thus ruled the Double Jeopardy Clause prohibits multiple convictions under this statute for a single act of drunk driving causing multiple injuries.

¶ 8. In 2004, the Mississippi Legislature amended section 63-11-30(5), making explicit that the statute was intended to allow multiple convictions for each injury in a single accident. The statute now reads as follows:

Every person who operates any motor vehicle in violation of the provisions of subsection (1) of this section and who in a negligent manner causes the death of another or mutilates, disfigures, permanently disables or destroys the tongue, eye, lip, nose or any other limb, organ or member of another shall, upon conviction, be guilty of-a separate felony for each such death, mutilation, disfigurement or other injury and shall be committed to the custody of the State Department of Corrections for a period of time of not less than five (5) years and not to exceed twenty-five (25) years for each such death, mutilation, disfigurement or other injury, and the imprisonment for the second or each subsequent conviction, in the discretion of the court, shall commence either at the termination of the imprisonment for the preceding conviction or run concurrently with the preceding conviction.

Miss.Code Ann. § 63-11-30(5).

¶ 9. Buckner argues that the 2004 amendment failed to overrule Mayfield’s holding that the statute criminalizes DUI, not homicide. However, a review of May-field reflects that the supreme court held that the statute, prior to the amendment, was “ambiguous with regard to whether it proscribes the act of killing while driving drunk ... or whether it merely prescribes a penalty for the act of driving drunk where death results.” Mayfield, 612 So.2d at 1127. Buckner concedes in his brief that the 2004 amendment cured this ambiguity in the statute.

¶ 10. In examining the statute at issue, the language states in pertinent part that a person in violation of this statute “shall, upon conviction, be guilty of a separate felony for each such death, mutilation, disfigurement or other injury and shall be committed to the custody of the State Department of Corrections ... for each such death, mutilation, disfigurement or other injury.” In Moreno v. State, 967 So.2d 701, 703 (¶ 3) (Miss.Ct.App.2007), this Court held that pursuant to the 2004 amendment to section 63-11-30(5), a defendant may now be convicted of a separate count of aggravated DUI for each death or injury arising out of a single incident. See also Sills v. State, 105 So.3d 1189, 1191-92 (¶¶9, 11) (Miss.Ct.App. 2013). We find no ambiguity in the statute, and we will not engage in statutory interpretation if a statute is plain and unambiguous. See Tillis v. State, 43 So.3d 1127, 1131 (¶ 9) (Miss.2010); Sykes v. State, 757 So.2d 997,1000 (¶ 8) (Miss.2000). Section 63-11-30(5) in its current form expressly states that a person in violation of that statute shall be guilty of a separate felony for each such death or injury.

¶ 11. In its order denying Buckner’s PCR motion, the trial court acknowledged the amendment of section 63-11-30(5) and, citing Moreno, stated that “the Court of Appeals ... has interpreted this revision as creating separate felonies for each death or injury resulting from driving while intoxicated.” The trial court correctly concluded that section 63-11-30(5) establishes separate crimes for each of the victims identified. Additionally, the offense of leaving the scene of an accident, as defined by Mississippi Code Annotated section 63-3^101, contains different elements from the offenses established by section 63-11-30(5). See Kelly, 80 So.3d at 805 (¶ 11). Therefore, the offense of leaving the scene of an accident prohibits and punishes acts distinct from the criminal acts prohibited by section 63-11-30(5).

¶ 12. As previously stated, the plain language of the statute provides for a separate conviction “for each ... death, mutilation, disfigurement or other injury.” See Miss.Code Ann. § 63-11-30(5). We find that the facts of this case show that Buckner’s criminal act of drunk driving killed one victim and injured two others.

¶ 13. Accordingly, we find no violation of the Double Jeopardy Clause, and we therefore affirm the trial court’s dismissal of Buckner’s PCR motion.

¶ 14. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CIRCUIT COURT

DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . "The legislature, in 2004, amended and made clear that one may be charged under Mississippi Code Annotated section 63-11-30 for multiple felonies arising from the same act of driving under the influence." Moreno, 967 So.2d at 703 (¶ 3).


author: FAIR, J., for the Court:

text:
    Perry JACKSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00389-COA.
    Court of Appeals of Mississippi.
    Nov. 5, 2013.
    Rehearing Denied Jan. 14, 2014.
    Certiorari Denied April 10, 2014.

      Office of State Public Defender by Justin Taylor Cook, attorney for appellant.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before LEE, C.J., MAXWELL and FAIR, JJ.
   FAIR, J., for the Court:

¶ 1. Perry Jackson was found guilty by a Washington County jury of two counts of capital murder and one count of aggravated assault. Jackson was sentenced to life without parole on each capital-murder count. The trial judge also imposed a consecutive sentence of twenty years for the aggravated-assault count, which was increased by a firearms enhancement of five years.

1f 2. Jackson appeals, asserting error in (1) the trial court’s giving of a flight instruction, and (2) the trial court’s failure to suppress a statement he gave after invoking his right to counsel. Additionally, he urges that neither of the assigned errors can be considered harmless, which mandates reversal of his conviction. Finding no error, we affirm the decision of the trial court.

FACTS

¶ 3. Eugene Pearson was dating Jackson’s ex-wife, Florida. On the morning of April 13, 2010, Pearson awoke to find Jackson straddling him, armed with both a firearm and a knife. The two struggled, and Pearson was shot twice — once in the face and once in the arm. Pearson saw Jackson grab Florida’s daughter-in-law, Clarissa King, and put the firearm to her temple, forcing her and her husband, Kelly King, into the laundry room. During this time, Pearson had locked himself in the bedroom, eventually fleeing to a neighbor’s house for help. Pearson heard a single shot before he left the house. Florida called 911 after receiving a phone call from her neighbor, who had seen Jackson crawl out of Florida’s window after the shooting. When the police arrived, they found Kelly and Clarissa, both dead from gunshot wounds, in the laundry room.

¶ 4. Jackson shared an apartment with his cousin, Benny Frazier, at the time. Hours before the shooting, Jackson and his girlfriend, Vanessa Hall, had gone to the apartment. At Jackson’s request, Frazier dropped Jackson off near Florida’s home around 6:30 a.m. Jackson called his uncle, Charles Jackson, later that morning, asking for a ride to Arkansas. Charles then contacted his son, Joseph Sanders, and they rode together to pick up Jackson from his mother’s home. During the car ride, Jackson told Charles and Sanders he had shot three people. Jackson also stated that he fled the house after the shooting, hid in a swamp until the police left, and stole a truck to get away. After arriving in Arkansas, Charles and Sanders dropped off Jackson with Hall and went back to Mississippi.

¶ 5. Jackson was found and arrested by U.S. Marshals in Arkansas. After Jackson was transported from Arkansas to the Greenville Police Department, two officers read him his Miranda rights. Jackson then signed a waiver and admitted he shot Clarissa, Kelly, and Pearson. Jackson added that after he met up with Hall in Arkansas, she took him to Moscow, Arkansas, to wait for another ride. Later, Jackson recanted, alleging that two men forced him to the scene and committed the murder. Jackson told Chief Investigator De-jando Wilson that he thought the two men had taken $18,000 from the scene, further asserting Kenny King, Florida’s other son, had just been picked up by the U.S. Drug Enforcement Administration. Both Jackson’s confession and retraction of his confession were presented to the jury. At the close of trial, the jury returned a guilty verdict.

ISSUES

1. Flight Instruction

¶ 6. During trial, Jackson’s counsel objected to the following flight instruction:

The Court instructs the Jury that “flight” is a circumstance from which guilty knowledge and fear may be inferred. If you believe from the evidence in this case beyond a reasonable doubt that the Defendant, PERRY JACKSON, did flee or go into hiding, such flight or hiding is to be considered in connection with all the other events in this case. You will determine from all the facts whether such flight or hiding was from a conscious sense of guilt or whether it was caused by other things and give it such weight as you think it is entitled to in determining the guilt or innocence of the Defendant.

¶ 7. Our supreme court has consistently held “it is a well-established principle that flight is admissible as evidence of consciousness of guilt.” Fuselier v. State, 702 So.2d 388, 890 (¶ 4) (Miss.1997). However, a flight instruction “is appropriate only where that flight is unexplained and somehow probative of guilt or guilty knowledge.” Id. (quoting Reynolds v. State, 658 So.2d 852, 856 (Miss.1995)). “When determining whether a flight in-struetion is appropriate, ... two considerations are paramount: (1) only unexplained flight merits a flight instruction, and (2) flight instructions are to be given only in cases where that circumstance has considerable probative value.” Id. (citations omitted). If an independent reason exists for the flight, then the evidence of flight is inadmissable. Id.

¶ 8. Jackson claims that his reason for going to Arkansas, to see his girlfriend, created an independent reason for his flight. See States v. State, 88 So.3d 749, 758 (¶¶ 37-38) (Miss.2012) (finding harmless error in the trial court’s giving of flight instruction where defendant stated he went out of state to see his girlfriend). In Jackson’s confession, he stated that Hall took him from Pine Bluff, Arkansas, to Moscow, Arkansas, where he caught another ride. Also, it is uncontested that Hall was with Jackson in Mississippi the morning of the shooting. There was no evidence indicating that Jackson had any prior plans to travel to Arkansas to see Hall. Further, Jackson’s actions following the shooting — fleeing Florida’s home, hiding in a swamp, stealing a truck, catching a ride to Arkansas to meet Hall, and then going with Hall to catch another ride to Moscow — are undoubtedly probative of Jackson’s guilty knowledge. Therefore, we find that the flight instruction was properly given.

¶ 9. Jackson’s reason for going to Arkansas is contradicted by the evidence. Further, the circumstances surrounding Jackson’s flight have considerable probative value. Therefore, we find that the trial court did not err in giving a flight instruction. This issue is without merit.

2. Jackson’s Statement

¶ 10. Jackson also argues that the trial court erred in its denial of his motion to suppress his statement made to the Greenville Police Department following the shooting. Jackson claims he invoked his right to counsel in Arkansas and was later questioned by Mississippi officers. In support of his argument, Jackson cites to Minnick v. Mississippi, 498 U.S. 146, 156, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990), where the United States Supreme Court held that once the accused asks for counsel, all interrogation must cease and cannot begin again until counsel is present.

¶ 11. Minnick is readily distinguishable from this case. Both cases involve the suppression of a confession, but the circumstances leading up to Minnick’s confession were notably different. In Minnick, Minnick was arrested on a Mississippi warrant for capital murder. Id. at 146, 111 S.Ct. 486. An interrogation by federal law enforcement officials ended when he requested a lawyer. Id. The FBI report indicated that the agents read Minnick his Miranda warnings, and that he acknowledged that he understood his rights. Id. at 148, 111 S.Ct. 486. Minnick spoke with his counsel several times after his meeting with the FBI. Id. Sometime after Minnick met with his counsel, a county deputy sheriff came to the jail to question him. Id. The deputy advised Minnick of his rights, reinitiated interrogation, and obtained a confession. Id. The Court ultimately found that Minnick’s confession should have been suppressed by the trial court, stating that, “[sjince [Minnick] made a specific request for counsel before the interview, the police-initiated interrogation was impermissible.” Id. at 156, 111 S.Ct. 486.

¶ 12. Here, the only evidence to support that Jackson requested counsel is Jackson’s own statement. There is no report or any other evidence indicating that Jackson asked for counsel at any time, as was the case in Minnick. At the suppression hearing, Jackson stated that he told two female officers at the police station in Pine Bluff, Arkansas, that he wanted a lawyer. When asked to describe the women, Jackson responded he was only with them for a couple of hours and therefore could not describe them. Based on the scant evidence regarding Jackson’s alleged invocation of counsel, we find this argument to be without merit.

¶ 13. This court cannot reverse a trial court’s denial of a motion to suppress unless: the incorrect legal principle was applied; there was no substantial evidence to support a voluntary, knowing, and intelligent waiver of Miranda rights; and the denial was a result of manifest error. Chim v. State, 972 So.2d 601, 604-05 (¶¶ 11-13) (Miss.2008). The standard of manifest error is high, and this court must affirm unless the trial judge’s ruling is against the substantial evidence. Id. at 605 (¶ 13).

¶ 14. In order for a confession to be determined knowing and voluntary, the trial judge must find beyond a reasonable doubt that the defendant was given his Miranda rights prior to any custodial interrogation. Armstead v. State, 978 So.2d 642, 645-646 (¶ 11) (Miss.2008). Our supreme court has held that the State’s “burden [of proving a voluntary confession] is met by the testimony of an officer, or other person having knowledge of the facts, that the confession was voluntarily made without any threats, coercion, or offer of reward.” Bell v. State, 963 So.2d 1124, 1134 (¶ 26) (Miss.2007). Such testimony “creates a prima facie case for the State on the question of voluntariness.” Id.

¶ 15. The defendant is entitled to offer testimony to the contrary, at which point the State must offer the testimony of the officers who witnessed the confession. See id. We also have held that “the resolution of conflicting testimony regarding volun-tariness is a question of fact to be resolved by the trial judge at the suppression hearing.” Chase v. State, 645 So.2d 829, 841 (Miss.1994). In determining voluntariness, the court must look at the “totality of the circumstances” surrounding the statement. Davis v. State, 551 So.2d 165, 169 (Miss. 1989).

¶ 16. At Jackson’s trial, a signed Miranda waiver, a signed and initialed confession, and a recording of the confession were admitted into evidence. Additionally, the officers who read Jackson his Miranda rights and took his confession testified at trial. Jackson rebutted the officers’ testimonies, claiming that, in Arkansas, he told Investigator Wilson of the Greenville Police Department that he wanted an attorney. Jackson also stated that he asked Investigator Wilson for an attorney after he was booked in Greenville.

¶ 17. Investigator Wilson testified that Jackson did not ask him for an attorney, nor did any of the officers in Arkansas notify him that Jackson made a request. Investigator Wilson stated that he picked up Jackson from Arkansas and that he did not question Jackson at any time during the drive from Arkansas to Greenville, Mississippi. Investigator Wilson further explained that he, along with Sergeant Michael Merchant, did not question Jackson until after he was booked at the Greenville Police Department and was read his Miranda rights. Investigator Wilson and Sergeant Merchant both testified that Jackson was not coerced or threatened in any way.

¶ 18. We find that there was credible evidence to allow Jackson’s confession into evidence. Further, the judge properly considered the totality of the circumstances to determine if Jackson intelligently, knowingly, and voluntarily waived his Miranda rights. See Martin v. State, 854 So.2d 1004, 1007 (¶ 4) (Miss.2003). Jackson’s signed Miranda waiver, along with his confession and the officers’ testimonies, is evidence of a knowing and voluntary confession. See id. at (¶¶ 5-6).

¶ 19. In order for this court to reverse the trial court’s denial of the motion to suppress, there must be a lack of credible or substantial evidence to support the denial. Armstead, 978 So.2d at 646 (¶ 11). We find that the judge’s decision was substantiated by sufficient evidence in the record. Therefore, we must affirm the denial of Jackson’s motion.

3. Cumulative Error

¶ 20. Jackson finally argues that because the flight instruction was erroneously given and because his confession should have been suppressed, the cumulative effect of those two errors requires setting aside his conviction and sentence and giving him a new trial — even though the record is replete with other independent evidence of his guilt.

¶ 21. Jackson’s argument, however, must fail, since, in addition to the overwhelming evidence of his guilt apart from his confession, his confession was properly before the jury and the flight instruction was not given erroneously. “Where there is no reversible error in any part, there is no reversible error to the whole.” Williford v. State, 820 So.2d 13, 23 (¶ 39) (Miss. Ct.App.2002) (internal quotation marks omitted). Jackson’s cumulative-error argument is, therefore, without merit.

¶ 22. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT OF CONVICTION OF TWO COUNTS OF CAPITAL MURDER AND SENTENCE ON EACH COUNT OF LIFE WITHOUT ELIGIBILITY FOR PAROLE, AND CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS PLUS A FIVE-YEAR SENTENCE ENHANCEMENT, WITH ALL SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

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

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: ISHEE, J., for the Court:

text:
    Tracy VANCE, Appellant v. TOWN OF LULA, Appellee.
    No. 2012-CA-01776-COA.
    Court of Appeals of Mississippi.
    Dec. 3, 2013.

      Robert G. Johnston, Cheryl Ann Webster, attorneys for appellant.
    Stephanie Nicole Morris, Thomas Morris, attorneys for appellee.
    Before IRVING, P.J., ISHEE and FAIR, JJ.
   ISHEE, J., for the Court:

¶ 1. This appeal stems from the suit filed by Tracy Vance in the County Court of Coahoma County against the town of Lula, Mississippi (the Town), seeking compensation for unpaid holidays, vacation days, and sick days accrued during his employment as the Town’s marshal. On May 12, 2011, the county court dismissed the case after granting a motion for a directed verdict in favor of the Town. Following dismissal, Vance filed an appeal in the circuit court. On September 26, 2012, the circuit court affirmed the decision of the county court. Aggrieved by the judgments of the circuit and county courts, Vance appeals. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. In a special meeting held July 27, 2004, the Town dismissed Thomas Ore as town marshal. On August 3, 2004, the Town held a regularly scheduled meeting with the Board of Aldermen and Mayor Alice Middleton. At that meeting, the possibility of hiring a new town marshal was set to be discussed. Vance, who had submitted an application for the position, was present at the meeting. The Board and Mayor Middleton entered into an executive session regarding the possibility of hiring Vance. Upon their return, they interviewed Vance and subsequently hired him at the close of the meeting. Vance served as the Town’s marshal from August 2004 to July 2009.

¶ 3. In 2009, Patricia Furdge was acting mayor of the Town. On July 28, 2009, Mayor Furdge sent a letter to Vance regarding a suggestion by Vance that he was owed additional salary. Mayor Furdge asked that Vance provide an amount and reason for the additional salary owed. On August 31, 2009, Vance responded to May- or Furdge, stating the Town owed him $16,400 for unpaid holidays, sick or leave days, and vacation days, dating back to June 2004. On October 22, 2009, Vance submitted another letter clarifying his claims and correcting the amount owed to $14,300.

¶ 4. On September 21, 2010, Vance filed a complaint in the county court against the Town seeking unpaid salary compensation. The Town filed a motion to dismiss, a motion for sanctions, and an answer to the complaint on October 15, 2010. On May 12, 2011, a trial on the merits was held in the county court. The county court granted a motion for a directed verdict in favor of the Town, finding that Vance’s employment contract was oral, and, thus, the action was barred by the applicable one-year statute of limitations.

¶ 5. Vance filed a motion for reconsideration, which was denied on October 14, 2011. Subsequently, Vance appealed to the circuit court. After considering the briefs, the oral arguments of both parties, and the county court’s judgment, the circuit court affirmed the decision of the county court. Vance now appeals arguing that a written agreement with the Town existed and the case should be removed from the province of legal authority governing unwritten employment contracts. Vance alleges, therefore, the circuit court erred in affirming the county court’s judgment.

DISCUSSION

¶ 6. “A motion for reconsideration is treated as a motion to amend the judgment pursuant to Rule 59(e) of the Mississippi Rules of Civil Procedure[.]” Lampkin v. Thrash, 81 So.3d 1193, 1199 (¶ 21) (Miss.Ct.App.2012). In order “[t]o succeed on a Rule 59(e) motion, ‘the mov-ant must show: (i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law or to prevent manifest injustice.’ ” /¿.(quoting Brooks v. Roberts, 882 So.2d 229, 233 (¶ 15) (Miss.2004)). This Court reviews the “denial of a Rule 59(e) motion under an abuse-of-discretion standard.” Id.

¶ 7. Vance appeals the circuit court’s decision to affirm the county court’s denial of his motion for reconsideration. The motion for reconsideration stems from the county court’s grant of a motion for a directed verdict in favor of the Town. A motion for a directed verdict challenges the sufficiency of the evidence. McGee v. River Region Med. Ctr., 59 So.3d 575, 577 (118) (Miss.2011) (citation omitted). In reviewing a motion for directed verdict, this Court will consider “whether the evidence, as applied to the elements of a party’s ease, is either so indisputable, or so deficient, that the necessity of a trier of fact has been obviated.” Id. (citation omitted). The evidence -will be viewed in the “light most favorable to the non-moving party and ... that party [will be given] the benefit of all favorable inferences that may be reasonably drawn from the evidence presented at trial.” Griffin v. N. Miss. Med. Ctr., 66 So.3d 670, 672 (¶ 5) (Miss.Ct. App.2011) (citing Munford, Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss.1992)). If a question of fact arises “from which reasonable minds could differ,” the motion for a directed verdict should not be granted. Id.

¶ 8. The county court granted the Town’s motion for a directed verdict because the statute of limitations for Vance’s unwritten-contract claims had run. Vance asserts that a written employment contract existed between himself and the Town, and, thus, the one-year statute of limitations for unwritten contracts is inapplicable. Mississippi Code Annotated section 15-1-29 (Rev.2012) provides in pertinent part: “[A]n action based on an unwritten contract of employment shall be commenced within one (1) year next after the cause of such action accrued, and not after.” For written contracts, the statute of limitations is a three-year period. See Miss.Code Ann. § 15-1-49 (Rev.2012). It is clear that Vance was employed by the Town as the marshal.

¶ 9. A general employment contract exists where there is “(1) consent of the parties, (2) consideration for the service rendered, (3) and control by the employer over the employee.” Levens v. Campbell, 733 So.2d 753, 758 (¶ 15) (Miss.1999) (citation omitted). It is clear that Vance was employed by the Town as the marshal. The dispute lies in whether or not a written employment contract existed between the Town and Vance. In support of his argument, Vance cites to Levens, which states that, “[i]f the written agreement furnishes some objective standard by which its terms may be made definite and the contract complete, the contract is written.” Id. (citation omitted). Vance asserts that the minutes of the Town’s meeting on August 3, 2004, were sufficient to constitute a written employment contract.

¶ 10. The Mississippi Supreme Court has previously held “that boards of supervisors and other public boards speak only through their minutes and their actions are evidenced solely by entries on the minutes.” Thompson v. Jones Cnty. Cmty. Hosp., 352 So.2d 795, 796 (Miss. 1977) (citations omitted). “[A] contract with a public board may be enforced if enough of the terms and conditions of the contract are contained in the minutes for determination of the liabilities and obligations of the contracting parties without the necessity of resorting to other evidence.” Id. at 797.

¶ 11. In the instant case, the minutes do not fully address the terms of an employment contract. Vance was questioned by the Board about his availability, his access to transportation, and his credentials. As stated in the record, the “[mjinutes, at the most, ‘established the basic existence of an obligation to pay and perform.’ ” However, the duties, the obligations, and the rate of pay for the position were never addressed in the minutes by the Town or Vance. The minutes alone do not constitute a written agreement for purposes of an employment contract.

¶ 12. Vance contends that the minutes, when coupled with the Town’s admissions during discovery, the Town’s budget, and various documents relating to the Town’s employment policies, constitute a written employment contract. However, the supreme court has stated “that where the written agreement is so indefinite that parol evidence is necessary to show a contractual relationship, the contract is unwritten and the limitations statute [for] written contracts is not applicable.” Le-vens, 733 So.2d at 758 (¶ 15) (citation omitted). It is evident that the documents Vance purports to be a part of the written contract are parol evidence and, thus, the employment contract must be deemed as unwritten.

¶ 13. The minutes reflect that the Board and the Mayor essentially interviewed Vance during the meeting. However, the actual terms of his employment as the Town’s marshal were not sufficiently included in the minutes. It is well settled that “each person, firm[,] or corporation contracting with a board of supervisors is responsible to see that the contract is legal and properly recorded on the minutes of the board.” Thompson, 352 So.2d at 797. As such, the contract falls squarely within the confines of an unwritten employment contract. After a thorough review of the record, we do not find that the circuit court abused its discretion in affirming the judgment of the county court. Accordingly, we find this issue is without merit.

¶ 14. THE JUDGMENT OF THE COA-HOMA COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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