text:
    Vernell Daven MISKELL a/k/a Vernell Miskell, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01306-COA
    Court of Appeals of Mississippi.
    11/07/2017

      ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: MOLLIÉ MARIE MCMILLIN
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: KATY TAYLOR GERBER
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
   CARLTON, J.,

FOR THE COURT:

¶ 1. .Vernell Miskell appeals his conviction for aggravated assault .and his sentence of twenty years in the custody of the Mississippi Department of Corrections (MDOC). Miskell filed a motion for a judgment notwithstanding the verdict (JNOV), or, in tlie alternative, a motion for a new trial. The trial court denied Miskell’s post-trial motion. Miskell now appeals to this Court. Finding no error, we affirm.

FACTS

¶ 2. A Forrest County grand jury indicted Marquis Harris and Vernell Miskell for aggravated., assault in violation of Mississippi Code Annotated section 97-3-7(2)(a)(ii) (Supp. 2016) stemming from a shooting on the evening of December 21, 2004. Harris pleaded guilty to aggravated assault and then testified against Miskell at trial.

¶3, On , December 21, 2014, Albert Pollard attended a house party -in Hatties-burg, Mississippi. During the party, Pollard went outside to purchase marijuana from Harris. As Pollard pulled money out of his pocket to pay for the drugs, he heard someone say, “Freeze, don’t move.” Pollard testified that a man who he later identified as Miskell ran towards Pollard with a gun pointed at him. Pollard ran off, and he heard six shots fired from behind him. Pollard fell to the ground on the last shot, and then he felt someone going through his pockets. Pollard testified that he suffered three gunshot wounds, and he was in the hospital for two weeks. Pollard admitted at trial that he had been smoking marijuana and spice on the night of December 21, 2014, and he “was probably a little high,” but he insisted that he “had clear vision” and could “still remember” the incidents that occurred.

¶ 4. Harris also testified against Miskell at trial. Harris stated that on December 21, 2014, he and Miskell walked to the house party. He testified that Miskell “disappeared,” but then later returned to the party in a vehicle. Harris stated that while at the party, he and Pollard went outside to the vehicle Miskell returned in so Harris could sell Pollard spice and marijuana. Harris testified that he entered the vehicle to retrieve the drugs for Pollard, and when he looked up, Miskell had a gun in Pollard’s face. Harris observed that Pollard tried to run away, but Miskell shot him. Harris said that after Miskell shot Pollard, Harris and Miskell “got in the car and '... left.” The record reflects that prior to Mis-kell’s trial, Harris pleaded guilty to the aggravated assault of Pollard.

¶ 5. The’jury also heard testimony from Dreylen Hurd, the DJ for the party on the night of December 21, 2014. Hurd testified that someone at the party informed him that a person had been shot in the street. Hurd said that he went outside and approached Pollard, who was lying on the ground. Hurd rolled Pollard over and asked who shot him, and Pollard replied that “N.O.” shot him. Hurd explained that “N.O.” is Miskell’s nickname.

¶ 6. Deandre Williams testified for the defense. Williams testified that at the party, he observed Harris with a gun in the pocket of his sweatshirt, and he saw Harris waving the gun around. Williams stated that he saw Harris leave the party, and Harris seemed angry that someone had taken his money. Williams testified that he believed Harris was mad at Pollard because he had lost money to Pollard in a dice game earlier in the night.

¶ 7. Miskell also testified in his own defense. According to Miskell’s testimony, he and Harris walked to the party together. Miskell walked outside of the party to smoke.and saw a friend, Decario Smith, outside by his car. Miskell went to Smith’s car to talk to him when Miskell saw Harris come out of the party. Miskell stated that Harris seemed irritated 'or agitated. Mis-kell called his friend Derrick to come get him, and when Derrick arrived, Miskell told Harris he was ready to go. Miskell testified that Harris went back inside the party before returning back outside with Pollard. Miskell testified that as he was walking to Derrick’s car, he saw Pollard run away, and then he observed Harris shoot Pollard four times. Harris and Mis-kell then jumped in Derrick’s car and drove off. Miskell claimed that he did not know that Harris brought a gun to the party, and he testified that Harris seemed normal that night.

¶ 8. At the close of the State’s case, the defense counsel made a. motion for a directed verdict, which the trial court denied. The jury ultimately found Miskell guilty of aggravated assault. The trial court sentenced Miskell to twenty years in MDOC custody.

¶ 9. Miskell’s trial counsel filed a motion for a JNOV or, in the alternative, a new trial. Miskell then filed a pro se motion for a new trial as well as a pro se notice of appeal.

¶ 10. After the trial court denied Mis-kell’s posttrial motions, Miskell’s appellate counsel submitted a brief on his behalf, claiming: (1) the prosecutor improperly commented on Miskell’s failure to call witnesses, and (2) the prosecutor made “send a message” comments during closing arguments. Miskell then submitted a pro se supplemental brief, claiming: (1) the trial court erred in determining that the State’s reasons for striking five African American jurors were race neutral; (2) the trial court erred in denying his motion for a directed verdict; (3) the State failed to prove the elements of the crime beyond a reasonable doubt; (4) the verdict -was against the overwhelming weight of the evidence; (5) the trial court erred in granting Jury Instruction S-5; (6) the trial court erred in refusing proposed Jury Instruction D-7; (7) the prosecutor misstated the law during closing arguments; (8) the cumulative effect of all errors resulted in an unfair trial; and (9) the cumulative effect of all errors resulted in plain error. For the purposes of clarity in discussion, we will combine several of Miskell’s assignments of error.

DISCUSSION

I. Batson Challenges

¶ 11. Miskell asserts that the trial court erred in determining that the State’s reasons for striking African American jurors were race neutral. “Peremptory strikes alleged to be racially discriminatory are analyzed under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 ... (1986).” Corrothers v. State, 148 So.3d 278, 304 (¶ 61) (Miss. 2014).

¶ 12. When reviewing Batson determinations, this Court will only reverse if the trial court’s factual findings “appear to be clearly erroneous or against the overwhelming weight of the evidence.” Cox v. State, 183 So.3d 36, 52 (¶ 54) (Miss. 2015). Upon review of a trial court’s determinations under Batson, appellate courts grant “great deference” to a trial court “because [the determinations] are based, in a large part, on credibility.” Id. We additionally recognize that “[o]n appeal, a trial court’s ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous.” Id.

¶ 13. Our supreme court has explained that when objecting to a peremptory challenge, the.. defendant must first “make a prima facie showing that race was the criteria for the exercise of the peremptory challenge^]” Id. at 54 (¶ 64). A defendant can establish a prima facie case of discrimination by showing the following:

(1) that he is a member of cognizable racial group; (2) that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race; (3) and the facts and circumstances raised an inference that the prosecutor used his peremptory challenges for the purpose of‘striking minorities. -

Corrothers, 148 So.3d at 305 (¶ 62).

¶ 14. Once the defendant has established a prima facie case of discrimination, the prosecution “has the burden to offer a race-neutral explanation for striking the potential juror[.]” Cox, 183 So.3d at 54 (¶ 64). The explanation provided by the prosecution for striking the potential juror “need not be persuasive, or even plausible; so long as the reasons are not inherently discriminatory, they will be deemed race-neutral.” Corrothers, 148 So.3d at 305 (¶ 62). After the prosecution provides its race-neutral explanation, “the trial court must then determine whether the objecting party has met [its] burden to prove there has been purposeful discrimination in the exercise of peremptory challenges.” Cox, 183 So.3d at 54-55 (¶ 64) (internal quotation marks omitted).

¶ 15. The record herein reflects that following voir dire, the State challenged prospective jurors 6, 21, 25, and 32 for cause. The record reflects that prospective juror 6 was an African American man who informed the court during voir dire, that he suffered from narcolepsy.

¶ 16. After the State made its challenges for cause, defense counsel commented that hé was concerned about a low percentage of African American prospective jurors, observing that twelve out of thirty-nine prospective jurors were African American. However, defense counsel never actually objected to the prosecutor’s challenges for cause as to these jurors, thus waiving this issue on appeal. See Easter v. State, 878 So.2d 10, 24-25 (¶¶ 42-43) (Miss. 2004).

¶ 17. The record reflects the trial court then asked the State to tender the first twelve jurors, and the State struck prospective jurors 5,' 6, and’ 10. (As stated, the State previously challenged prospective juror 6, an African American man, for cause.) The transcript reflects.' that prospective juror 5 was African American, but the transcript does not reflect the race of prospective juror 10.

¶ 18. During the State’s peremptory strikes, defense counsel only objected to the State- striking prospective juror 5, an African American woman, based on the belief that a peremptory strike was being used as a result of discrimination. After defense • counsel requested a race-neutral reason for striking prospective jurors, the trial court determined that defense counsel had not established a prima facie case, of discrimination. However, the State still provided race-neutral reasons for striking the prospective juror. The transcript reflects the following exchange during the jury-selection conference:

MR. THORNTON: .Judge, I think we have to—the State’s reasoning ... for Number 5, Ms. Council. She is a black female. I would ask for a race[-]neutral reason for striking Ms. Council.
MR. HOOD: You haven’t made the—
THE COURT: You haven’t—you haven’t[.]
MR. HOOD: —Batson challenge yet, but just for the record purpose, I’ll give a race[-]neutral reason. She was fidgety when she was doing the panel. She was [in]attentive. She seemed like she didn’t want to be here. She was angry. Wouldn’t make eye contact. Wouldn’t sit still. I think she—I forgot her ’ work history. Number 5. But that’s the race[-]neutral reasons. But, again, a Batson procedure hasn’t been met.
THE COURT: Well, the Court’s opinion, the Defense has not established the prima facie showing that the State is exercising its peremptory challenges on the basis of discrimination. The Court will accept the State’s race[-] neutral reasons for eliminating or using the peremptory challenge on - Erica Council. Ms. Council is the individual [who] just happened to be on my right just to the right of the podium, so if Tm looking at the podium, I’m looking at her. -And the notes that I wrote down—she wasn’t paying attention and that she worked the late shift and got off late. She was one of the ones, I think, that raised their hand in response to the defense question. So I think, that’s sufficient race[-]neutral reason to exercise a challenge. So let’s move along.

¶ 19. The trial court also addressed defense counsel’s concern regarding the number of African American jurors on the panel, opining:

All right. The Defense initiated our voir dire proceeding about challenging a use of a peremptory instruction by the State and asserted—-well, desired a race[-]neutral reason. And it’s my understanding and I stated on the record that although I did not think a prima facie case had been laid out for the use of peremptory instructions by the State in a rationally discriminatory matter, Mr. Hood volunteered race[-]neutral reasons for the exclusion of Juror Number 5, which I believe is Erica M. Council. The Court had made notes that agreed with what Mr. Hood was saying and for the reasons previously stated on the record, I felt like he gave a race neutral reason. We’re now through Juror Number 12, and by my count, there are one, two, three African Americans on the jury.
And since the African American population is 37 percent of the population, total population of Forrest County, that is— that’s very close to the actual pereent-age of the population.

¶20. The trial court additionally informed Miskell:

I can assure you that this Court is not going to allow the State of Mississippi to use its peremptory challenges ... in a racially discriminatory manner. [A]nd I don’t think-they’ve done that. I didn’t think they were doing that to start with. And as it turns out, ... we have a number of African Americans on your jury that come pretty close to the racial makeup of the county[.]

¶ 21. Our review of the record reflects that the trial court’s determination that no Batson violation occurred herein was not clearly erroneous or against the overwhelming weight of the evidence. This issue lacks merit. See Cox, 183 So.3d at 52 (¶ 54).

II. Sufficiency of the Evidence

122. Miskell claims that the trial court erred in denying his ‘motion for JNOV. Miskell specifically asserts that the State failed to prove the elements of the crime of aggravated assault beyond a reasonable doubt.

¶ 23. A motion for a JNOV challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss. 1993). The supreme court has held that appellate courts must review a challenge to the sufficiency of the evidence as follows:

in theTight most favorable to the State, giving the State the benefit of all favorable inferences reasonably drawn from the evidence. If the facts and inferences so considered point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty, [we] must reverse,- and render.

Henley v. State, 136 So.3d 413, 415-16 (¶ 8) (Miss. 2014) (internal citations and quotation marks omitted). The supreme court has also instructed that when “reviewing whether a verdict is supported by the evidence, [appellate courts] are required to look at the totality of the circurastances[.]” Downs v. State, 962 So.2d 1255, 1259 (¶ 14) (Miss. 2007). As stated, Miskell was charged with aggravated assault pursuant to section 97—3—7(2) (a) (ii), which states that a person is guilty of aggravated assault if he “attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon[.]” We now turn to review the sufficiency of the evidence in this record supporting Miskell’s conviction of aggravated assault..

¶ 24. As set forth in this opinion’s statement of facts, Pollard and Harris provided testimony at trial supporting Miskell’s conviction. The record reflects that Pollard testified that he left the party to go outside and meet Harris. Pollard stated that while Harris was inside of a car .searching for marijuana to sell to Pollard, Pollard pulled out his money and began to count it. He testified that he heard Miskell say, “Freeze; don’t move.” Pollard explained that “when he said ‘freeze; don’t move,’ I looked, you know, to see who it was, and I looked there. You know, it was dark, but I still seen [sic] him.” Pollard testified that Miskell was standing about ten or fifteen feet away from him and “had the gun up pointed at me.” Pollard testified that, he then ran off, but he heard six shots fired from behind him. Pollard fell to the ground on the last shot, and then he felt someone going through his pockets. Pollard testified that he suffered three gunshot wounds, and he was in the hospital for two weeks.

¶ 25. As stated, Harris, Miskell’s alleged accomplice, also testified that while he'was in the car retrieving marijuana to sell to Pollard, he looked up. and saw- that Miskell “had a gun in [Pollard’s] face, and [Pollard] tr[ied] to run. Shot him.” Harris explained that at this point, Miskell and Pollard were standing right in front of the car, and he observed Miskell fire shots at Pollard. Hurd, the DJ at the party, also testified that immediately after the shooting, Pollard stated that “N.O.” shot him. Hurd testified that “N.O.” is Miskell’s nickname.

¶ 26. In applying the standard applicable to reviewing the sufficiency of the evidence and “giving the State the benefit of all favorable inferences reasonably drawn from the evidence^]” we find no merit to this claim of error. See Henley, 136 So.3d at 415-16 (¶ 8).

III. Weight of the Evidence

¶ 27. Miskell also claims the verdict was against the overwhelming weight of the evidence, and, as a result, the trial court erred by denying his motion for a new trial. When reviewing a trial court’s denial of a motion for a new trial, this Court will not reverse “unless the verdict is so- contrary to the overwhelming weight of the evidence that an unconscionable injustice would occur by allowing the verdict to stand.” Rollings v. State, 192 So.3d 1133, 1136 (¶ 14) (Miss. Ct. App. 2016) (citation omitted).

¶28. Miskell specifically argues that because Pollard suffered gunshot wounds while attempting to run away, Pollard could not have known who shot him. Mis-kell also asserts that because Pollard admitted to using drugs prior to being shot, his identification of the shooter was unreliable, Miskell’s argument fails to address Pollard’s testimony that he saw Miskell pointing a gun at him, and that Harris also testified that he witnessed Miskell shoot Pollard. Thus, Harris’s testimony corroborated the testimony of Pollard, and Hurd’s testimony was consistent with that of both Pollard and Harris.

¶ 29. In turning to the specific testimony in the record relevant to Miskell’s argument, the record shows that Pollard testified that when he heard someone say, “Freeze; don’t move,” he looked to see who was speaking. Pollard testified that he then observed Miskell pointing a gun at him. Pollard also admitted he had been smoking marijuana and spice on the night of December 21, 2014, and “was probably a little high,” but Pollard also testified that he “had clear vision” and could “still remember” the incidents that occurred.

¶30. Regarding Harris’s testimony, Miskell argues that Harris, his alleged accomplice, never admitted to any role in the incident, and his testimony was self-serving. As stated, the record reflects that prior to Miskell’s trial, Harris pleaded guilty to the aggravated assault of Pollard. However, the record reflects that the trial court provided the jury with the following instruction regarding Harris’s testimony: “Harris is [Miskell’s] alleged accomplice in this case. If you find that [Harris’s] testimony is not supported by other evidence in this case, then you should consider his testimony cautiously and with great suspicion and determine whether it is reasonable, inconsistent, or has been impeached.” The evidence in the record reflects that Harris’s testimony was indeed consistent with and supported by the testimony of other witnesses. We recognize that “the jury is the sole judge of the credibility of witnesses and the weight and worth of their testimony.” Lenoir v. State, 222 So.3d 273, 279 (¶ 29) (Miss. 2017).

¶31. Miskell also takes issue with the fact that Hurd, the DJ at the party, previously told police that Harris shot Pollard. At trial, Hurd acknowledged that his statement to the police was inconsistent with his trial testimony. Hurd explained that his statement to the police was based on what he was told by other people, and not what Pollard told him immediately after being shot. Hurd testified that immediately after the shooting, Pollard stated that Miskell shot him. The record shows that Hurd was subject to cross-examination. Again, “the jury is the sole judge of the credibility of witnesses and the weight and worth of their testimony.” Id.

.¶32. Finally, Miskell argues that Sergeant Robert Sybert of the Hattiesburg Police Department asked the victim, through hospital staff, if he knew who shot him, and that the victim’s response was, “No.” However, the record fails to establish what question was actually posed to the victim. Our review of the transcript shows the following exchange between the defense counsel and Sergeant Sybert during cross-examination:

Q. So, Sergeant Sybert, you went to Forrest General to see who shot the victim, correct?
A. That was one of the reasons I went there, sir.
Q. ... Okay. So once you made it to the hospital, ER staff directed you to a room where the victim was lying, right?
A. Yes, sir.
Q. And was a question asked, and did the victim respond[ ]?
A. Yes, sir.
Q. Did you hear what the victim response was?
A. Yes, sir, I did.
Q. Can you tell me what it was?
A. The victim’s response was no.

¶ 33. The State argues that Pollard could have responded “no” to any number of. questions. The record also reflects that later in the trial, Detective Tyson Fairley of the Hattiesburg Police Department testified that when he interviewed Pollard at the hospital after his surgery, Pollard provided “a description and a street name of the person who shot [him].” Detective Fairley testified that through his investigation, he determined Miskell to be the shooter. •:

¶ 34. The record shows that both Pollard and Detective Fairley testified at trial and were subject to cross-examination by the defense counsel, As stated, “the jury is the sole’judge of the credibility of witnesses and the weight and worth' of their testimony.” Lenoir, 222 So.3d at 279 (¶ 29). Furthermore, “|j]urors .., have the duty[ ] to resolve the conflicts in the testimony- they hear.” Turner v. State, 818 So.2d 1181, 1185 (¶ 10) (Miss. 2002).

¶ 35. After reviewing the-record, we cannot say that “the verdict is so contrary to the overwhelming weight of the evidence that an unconscionable injustice would occur by allowing the verdict to stand.” Rollings, 192 So.3d at 1136 (¶ 14). Accordingly, we find no merit to Miskell’s claim of error.

IV. Jury Instructions

¶36, Miskell asserts that the trial court erred in granting jury instruction S-5. Miskell also asserts .that the trial court erred in denying proposed jury instruction D-7. When reviewing a trial court’s ruling on jury instructions, we recognize:

Jury instructions are generally within the discretion of the trial court, and the settled standard of review is abuse of discretion. The instructions are to be read together as a whole, with no one instruction to be read alone or taken out of context. When read together, if the jury instructions fairly state the law of the case and create no injustice, then no reversible error will be found[.] A defendant is entitled to have jury instructions given which present his theory' of the case; however, this entitlement is limited in that the trial court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the évidence.

Phillips v. State, 179 So.3d 1218, 1220 (¶ 7) (Miss. Ct. App. 2015) (quoting Bailey v. State, 78 So.3d 308, 315-16 (¶ 20) (Miss. 2012)).

¶ 37. Miskell argues that the trial court erred in granting Jury Instruction S-5 because the .instruction set forth an element outside of that required for proving aggravated assault. Jury Instruction S-5 stated:

A person charged with aggravated assault does not have to possess ill-will toward his victim(s), A person charged with aggravated assault does not even have to'know the identity of a specific individual to commit an aggravated assault upon that person.
In this trial]),] this [r]ule of [l]aw means that [Miskell] did not have to possess ill-will toward [Pollard]. It also means that [Miskell] did not even have to know or recognize [Pollard] in order to commit an aggravated assault upon him. .

,¶ 38. In Mack v. State, No. 2016-KA-00035-COA, — So.3d -, -, 2017 WL 2452014, at *11 (¶53) (Miss. Ct. App. June 6, 2017), this Court discussed an identical jury instruction and found that the instruction provided a correct statement of the law. The Mack court cited to’ Blanks v. State, 642 So.2d 222, 226 (Miss. 1989), for the proposition that “a person ‘does not have to possess ill-will toward or even know the identity of a specific individual to commit an aggravated assault on that person.’ ” Id.

¶ 39. Miskell also claims that the trial court erred in refusing to. grant proposed jury instruction D-7, which provided:

[Miskell] is charged with aggravated assault.
If the State failed to prove that:
1. On or about December 21, 2014, in Forrest County;
2. [Miskell] caused serious bodily injury to [Pollard],' by unlawfully shooting [Pollard] with a handgun, beyond a reasonable doubt,
then you shall And [Miskell] “Not Guilty.”

¶ 40. This Court has held that the trial court “may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Dear v. State, 966 So.2d 218, 219-20 (¶ 5) (Miss. Ct. App. 2007) (citation omitted). In refusing proposed Jury Instruction D-7, the trial court herein found that the instruction was covered by Jury Instruction S-l, which provided as follows:

The [c]ourt instructs the [j]ury that [Miskell] has been charged with the crime of Aggravated [a]ssault.
If you find from the evidence beyond a reasonable doubt that:
1. [Miskell],' on or about December 21, 2014, in Forrest County, Mississippi; ■
2. knowingly caused bodily injury to [Pollard], with a deadly weapon, to wit: gun, by shooting [Pollard] with a gun; and
3. that such behavior was not done in necessary self defense, accident, or misfortune; then you shall find [Miskell], guilty of Aggravated Assault.
If the State has failed to prove any one or more of the above listed elements beyond a reasonable doubt, then you shall find [Miskell], not guilty of Aggravated Assault.

¶41. Upon review, the record reflects that proposed Jury Instruction D-7 was “covered fairly” by Jury Instruction S-l. See id, Furthermore, precedent reflects that Jury Instruction S-5 constituted a correct statement of law. See Blanks, 542 So.2d at 226. We thus find this’ issue lacks merit.

V. Prosecutorial Misconduct

¶ 42. Miskell argues that the prosecutor made inappropriate comments during closing argument. Miskell specifically takes'issue with the prosecutor’s suggestion that Miskell possessed a duty to present witnesses in his defense and the prosecutor’s statement that the jury should convict Miskell in order to take a stand against gangs.

¶ 43. “The standard of review that appellate courts must apply to lawyer misconduct during ... closing arguments is whether the natural and probable effect of .the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.” Jackson v. State, 174 So.3d 232, 236 (¶ 9) (Miss. 2015). “Prosecutors are not allowed to employ tactics which are inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury.” Wilson v. State, 194 So.3d 855, 864 (¶ 30) (Miss. 2016) (internal quotation marks omitted); However, “[t]he prosecutor may comment upon any facts introduced into evidence, and he may draw' whatever deductions and inferences that seem proper to him from the facts.” Id. (quoting Galloway v. State, 122 So.3d 614, 643 (¶ 72) (Miss. 2013)). Additionally, this Court, citing Dora v. State, 986 So.2d 917, 923-24 (¶¶ 13-14) (Miss. 2008), has recognized that during closing argument, the State is allowed to comment “on the credibility and veracity of the testimony provided by ... [a] witness.” Lathan v. State, 164 So.3d 484, 489 (¶ 21) (Miss. Ct. App. 2014); see also Pitchford v. State, 45 So.3d 216, 234 (¶ 67) (Miss. 2010).

¶ 44. The record reflects that during his closing argument, the prosecutor claimed that Miskell was at a gang-related party, stating:

This defendant was hanging out with those people that you saw coming and testifying, and look. They’re all rough around the edges. They’re all doing stuff they wouldn’t have to do. That is what it is. But we have to take a stand on it. We have to say you have to be held accountable for what you do. If you fire bullets out in the street, you’re going to be held accountable for it. If you shoot a gang member, if the [six] bullets go and shoot a little kid in the house, you’ve got to be held accountable for it.
The gang stuff here is a problem. It’s not as bad as places like Chicago, but it’s a problem. It’s simply an issue of can’t control what parents let their young adults do. Can’t control what a young adult try to do. You can’t tell a parent to teach their kid to be responsible and not to go to places where you see that kind of activity.... But what’s our obligation? It’s to say we will not allow shootouts in Hattiesburg. We will not allow people to be shot. We will not allow crooked people to point fingers at each other.

¶ 45. The prosecutor also stated:

Kids have a right to have a party. Kids don’t have a right to go sell drugs. Kids have a right to go gather and get together with each other. They don’t have a right to have shootouts. Communities don’t have a right to live in fear because we have shootouts and guns firing out in some neighborhoods. And in my mind and this jurisdiction and this office, the line will be drawn.... If you draw a line, if you draw a line, and hold him accountable, this defendant will be sentenced by that [j]udge. He will make the final determination. Right there. You can’t point fingers at each other and have one of you walking away. You can’t. The line has to be drawn. You can’t be Chicago. We can’t be other places. The line has to be drawn. Fairness, responsibility, accountable for your actions. It’s a simple principle. It’s been around since the ages. If it goes well, everybody lives a wonderful life, and everybody is happy. If you lose that—if you lose that basic foundation, there’s your problem. This case was built on I.D. of the victim supported by the co-defendant, supported by both of them having been seen with the gun. Whatever his defense is, he’s lying. You’re not getting arrested and not say I saw him do it. You’re not giving the names of your witnesses. You’re not mentioning it. You don’t just forget about it in opening statement. For two years you don’t tell anybody. You’re lying because you both have to be held responsible, and let him sentence him. I’m going to ask you to go back there and find this defendant, seek out the form of the verdict form, write on a sheet of paper we find the defendant guilty. Draw your line.

¶ 46. We recognize that our supreme court has held that prosecutors may not “encourage juries to use their verdict to ‘send-a-message’ to the public or to other potential criminals.” Brown v. State, 986 So.2d 270, 275 (¶ 11) (Miss. 2008). “This is because the issue which each juror must resolve is not whether or not he or she wishes to send a message but whether or not he or she believes that the evidence showed the defendant to be guilty of the crime charged.” Grindle v. State, 134 So.3d 330, 347 (¶ 71) (Miss. Ct. App. 2013) (citation omitted). When reviewing a send-the-message claim, this Court considers two threshold questions, followed by a two-prong test. Id. at 348 (¶ 72). The threshold questions are: “(1) did defense counsel object, and (2) was the comment uninvited by the defense.” Id. (citation omitted).

¶ 47. The record before us reflects that the defense counsel failed to object to comments now raised on appeal. “However, even in the absence of a contemporaneous objection, we will review on appeal a claim that a prosecutor made an improper send-a-message argument if the argument is so inflammatory that the trial judge should have objected on his own motion.” O’Connor v. State, 120 So.3d 390, 399 (¶ 23) (Miss. 2013) (internal quotation marks omitted).

¶ 48. In addressing whether the prosecutor’s statements constituted a send-a-message argument, we find that the record reflects that the statements were invited by the defense counsel and that the prosecutor commented on the actual evidence offered at trial. The prosecutor’s statements conveyed that even bad people, including gang members, can be victims, and that shooting a gang member is a crime that should be accounted for under the law. The record also reflects that the prosecutor commented on the actual testimony provided at trial by Miskell and other defense witnesses. The prosecutor argued that Miskell’s testimony was not truthful, and that Miskell was lying in his trial testimony wherein he claimed that he saw Harris shoot Pollard. The prosecutor was allowed to comment on the credibility of the testimony and evidence presented at trial. See Lathan, 164 So.3d at 489 (¶ 21).

¶ 49. Regarding Miskell’s argument that the prosecutor improperly commented on Miskell’s failure to call witnesses, our review of Miskell’s appellate brief reveals that Miskell failed to present any argument or authority in support of his claim. This Court has held that “issues unsupported and not argued are abandoned and need not be considered” on appeal. Thibodeaux v. State, 652 So.2d 153, 155 (Miss. 1995) (citation omitted).

¶ 50. Miskell also takes issue with the prosecutor’s statement that “if one of you are guilty, you’re both guilty.” During his closing argument, the prosecutor stated:

If [Harris] is guilty of aggravated assault, so is [Miskell].... And that’s what this comes down to. If we’re going to hold one of them accountable for setting that guy up out there and ending up shooting him, you’ve got to hold them both accountable.... We will not allow you to point fingers and walk away because if one of you are guilty, you’re both guilty.

¶ 51. The record reflects that the defense counsel objected, arguing, “If one is guilty; therefore, both are guilty. That’s an inaccurate and improper statement of the law.” The prosecutor responded and explained: “It’s an argument. It’s not a law. It’s an argument.” The trial court overruled the defense counsel’s objection, finding that the prosecutor was “simply making an argument.” The record additionally reflects that the trial court instructed the jury through Jury Instruction C-l that “[arguments, statements and remarks of counsel are intended to help you understand the evidence and apply the law, but are not evidence. If any argument, statement or remark has no basis in the evidence, then you should disregard that argument, statement or remark.” The trial court also instructed the jury through Jury Instruction D-5: “You may consider [Harris’s] previous-conviction [for the aggravated assault of Pollard] for the limited purpose of determining [Harris’s] truthfulness.” Additionally, a review of the prosecutor’s entire closing argument reflects that when taken in context of all of the evidence, including defense evidence, the prosecutor only commented .on actual evidence in the case and the credibility thereof. See Wilson, 194 So.3d at 864 (¶ 30).

-¶52. As stated, we review claims of prosecutorial misconduct during closing arguments for the determination of “whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.” Jackson, 174 So.3d at 236 (¶ 9). We find that the prosecutor’s comments during closing argument failed to cause unjust prejudice to Miskell; accordingly, we find this issue lacks merit.

VI. Cumulative Error

¶53. Finally, Miskell claims that the cumulative effect of all errors resulted in an unfair trial and plain error. Under the cumulative-error doctrine, “individual errors, which are not reversible in themselves, may combine with other errors to make up reversible error, where the cumulative effect of all errors deprives the defendant' of a fundamentally fair trial.” Rogers v. State, 205 So.3d 660, 665 (¶ 17) (Miss. Ct. App. 2015) (citation omitted). “However, reversal based upon cumulative error requires a finding or findings of error.” Id. (citation omitted).

¶ 54. Since we find no error on any of Miskell’s claims, we accordingly find that “no cumulative or plain error results to warrant a reversal.” Id. at 666 (¶ 25); see also Harris v. State, 970 So.2d 151, 157 (¶ 24) (Miss. 2007). We therefore affirm the circuit court’s judgment.

¶ 55. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR,-WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. TINDELL, J., NOT PARTICIPATING.

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      . In Miskell’s motion for a JNOV or, in the alternative, a new trial, he alleges that prospective jurors 5, 6, 10, 21, and 24 were African American.

      . The transcript does not reflect which of Miskell’s jurors were African-American,

      , At the time of this writing, no mandate has ■issued in Mack due to a pending motion for. rehearing, M.R.A.P. 41(b). Therefore, the opinion is not final. > „■


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Raheem BERRY, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00970-COA
    Court of Appeals of Mississippi.
    11/14/2017

      ATTORNEY FOR APPELLANT: RA-HEEM BERRY (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ, .
   CARLTON, J.,

FOR THE COURT:

¶ 1. Raheem Berry appeals the Grenada County Circuit Court’s denial of his motion for postconviction relief (PCR). On appeal, Berry argues (1) the circuit court abused its discretion by denying his PCR motion without holding a hearing; and (2) his trial attorney'failed to inform him of his right to appeal his sentence, and his right to an attorney on appeal. Finding no error, we affirm the circuit court’s denial of Berry’s PCR motion.

FACTS

¶2. On January 27, 2014, Berry pled guilty to second-degree murder. See Miss. Code Ann. § 97-8-19(l)(b) (Rev. 2014). Following a plea colloquy, the circuit court accepted Berry’s guilty plea and sentenced him to twenty years in the custody of the Mississippi Department of Corrections. Berry raised no direct appeal of his conviction and sentence. However, on December 21, 2015, Berry filed a motion to vacate his conviction and sentence, which the circuit court treated as a PCR motion under Mississippi Code Annotated section 99-39-5 (Rev. 2015). On May 24, 2016, the circuit court entered both an opinion discussing the merits of Berry’s PCR claims and an order summarily denying his PCR motion. Aggrieved, Berry appeals.

STANDARD OF REVIEW

¶ 3. “When reviewing a circuit court’s denial or dismissal of a PCR motion, we will reverse the judgment of the circuit court only if its factual findings are ‘clearly erroneous’; however, we review the circuit court’s legal conclusions under a de novo standard of review.” Boyd v. State, 65 So.3d 358, 360 (¶ 10) (Miss. Ct. App. 2011).

DISCUSSION

¶4. Berry alleges “the circuit court abuse[d] its discretion [by] denying [his PCR] claim without a hearing[.]” Without providing any supporting affidavits, Berry argued in his PCR motion that his guilty plea was not voluntarily, knowingly, and intelligently entered because (1) he “was misled to believe he did not have a right to a direct appeal of his sentence”; (2) the circuit court failed to inquire whether he acted in self-defense; and (3) the circuit court failed to determine whether he was competent to plead guilty.

¶ 5. In addressing a PCR movant’s entitlement to an evidentiary hearing, this Court has stated:

The circuit court may dismiss a PCR motion, without having held an eviden-tiary hearing, when it is .clear that the movant is not entitled to relief under the Uniform Post[c]onviction Collateral Relief Act (UPCCRA). A circuit court enjoys wide discretion in determining whether to grant an evidentiary hearing. A post[ ]conviction claim for relief is properly dismissed without the benefit of an evidentiary hearing where it is manifestly without merit.
To be entitled to an evidentiary hearing, a movant must demonstrate, by affidavit or otherwise, that there are unresolved issues of fact that, if concluded favorably to the [movant], would warrant relief. Mere allegations in the pleadings themselves, otherwise unsupported, are not sufficient to require a hearing. Claims by the movant, even if supported by affidavit, that are contradicted by the record of the plea acceptance hearing may be disregarded by the circuit court.

Smith v. State, 196 So.3d 986, 992 (¶¶ 13-14) (Miss. Ct. App. 2015) (internal citations and quotation marks omitted).

a. Right to Appeal

¶ 6. Berry contended in his PCR motion, and he now contends before this Court, that his trial attorney failed to inform him of his right to appeal his sentence and his right to an attorney on appeal. Berry argues that, had his trial attorney properly advised him, he would have exercised his right .to appeal his sentence with the assistance of counsel. Berry further asserts that this alleged error entitles him to “resentencing and a timely appeal of the sentence, if not aggrieved, and ... to counsel on the appeal of his sentence.”

¶ 7. Despite Berry’s contentions, Mississippi statutory law and caselaw establish that no direct appeal was available to him because he pled guilty. Mississippi Code Annotated section 99-35-101 (Rev. 2015) states, “Any person convicted of an offense in a circuit court may appeal to the [Mississippi] Supreme Court. However, where the defendant enters a plea of guilty and is sentenced, then no appeal from the circuit court to the [s]upreme [c]ourt shall be allowed.”

¶8. As we have previously explained, “This was not always the ease. Prior to the 2008 amendment of section 99-35-101, ‘a defendant who entered a guilty plea and was sentenced could challenge the validity of his sentence on direct appeal.’ ” Joseph v. State, 111 So.3d 697, 698 (¶ 5) (Miss. Ct. App. 2013) (quoting Fair v. State, 102 So.3d 1165, 1170 (¶ 16) (Miss. Ct. App. 2012)). However, the amended version of section 99-35-101 “ ‘prohibits any direct appeal upon entry of a guilty plea.’” Id. (quoting Fair, 102 So.3d at 1170 (¶ 16)). Thus, a defendant who now pleads guilty must file a PCR motion under section 99-39-5 rather than a direct appeal. Id.

¶ 9. As already acknowledged, Berry provided no affidavits to support his claim regarding his right to appeal. In addition, the transcript of Berry’s plea hearing reveals the circuit judge informed Berry of the consequences of pleading guilty. Specifically, the circuit judge explained as follows:

Also, if you. were tried by a jury and convicted, you could appeal the conviction to the Supreme Court or Court of Appeals of this state; and an attorney would be appointed to represent you on appeal if you couldn’t afford one. But by entering a plea of guilty to the charge today, there cannot be any appeal from these proceedings.

When the circuit judge asked whether Berry understood,. Berry answered affirmatively while under oath.

¶ 10. Based on a review of the record and relevant caselaw and statutory law, we find no merit to Berry’s claim that he is entitled to relief because his trial attorney failed to advise him regarding his right to directly appeal his sentence. We therefore find no error in 'the circuit court’s denial of Berry’s PCR motion without granting an evidentiary hearing on this issue. See Smith, 196 So.3d at 992 (¶¶ 13-14).

b. Self-defense

¶ 11. Also in his PCR motion, Berry argued his guilty plea was. involuntary due to the circuit court’s failure to ask whether he acted in necessary self-defense. Berry asserted he would not have pled guilty had he known necessary self-defense constituted a defense to murder. However, the “[sjupreme [c]ourt has held that ‘a valid guilty plea admits all elements of a formal criminal charge and operates as a waiver of all non-jurisdictional defects contained-in an indictment against a defendant.’ ” Cross v. State, 954 So.2d 497, 499-500 (¶ 7) (Miss. Ct. App. 2007) (quoting Brooks v. State, 573 So.2d 1350, 1352 (Miss. 1990)). “Moreover, a ‘guilty plea operates as a waiver to all defenses that could have been presented except for those defenses going to the jurisdiction of the sentencing court.’ ” Chandler v. State, 196 So.3d 1067, 1072 (¶ 24) (Miss. Ct. App. 2016) (quoting Kelley v. State, 913 So.2d 379, 383 (¶ 7) (Miss. Ct. App. 2005)).

¶ 12. “To determine whether the plea is voluntarily and intelligently given, the trial court must advise the defendant of,his rights, the nature.of the charge against him, as well as the consequences of the plea.” McNutt v. State, 71 So.3d 1263, 1267 (¶ 13) (Miss. Ct. App. 2011) (citation omitted). The plea-hearing transcript reflects that the circuit judge advised Berry of his constitutional rights, the elements of the charge against him, the effect of his guilty plea, and the minimum and maximum sentences available. The circuit judge also ascertained that Berry was satisfied with his attorney’s representation and that no one threatened or induced Berry to plead guilty. After hearing the State’s proffer of the factual basis for the charge, Berry agreed with the facts and stated, under oath, that he was guilty of second-degree murder.

¶ 13. “Great weight. is given to statements made under oath and in open court during sentencing.” Cross, 954 So.2d at 500 (¶ 11). (citation omitted). ■ Furthermore, the record reflects that Berry failed to offer any proof to the circuit court, or to attach any affidavits to his PCR motion,-to support his self-defense claim. Based on our -review of the record, we find the circuit court properly accepted Berry’s guilty plea after finding Berry voluntarily, knowingly, and intelligently pled guilty. As a result, we find no error in the circuit court’s denial of Berry’s PCR motion without granting an evidentiary hearing on this issue. See Smith, 196 So.3d at 992 (¶¶ 13-14).

c. Competency

¶ 14. Berry’s- final assignment of. error in his PCR motion focused on his competency to plead guilty. However, Berry never asserted in- his PCR motion that he was actually incompetent. Berry instead claims that the circuit court erred by failing to determine his competency. Despite Berry’s assertions, the record demonstrates • that, prior to accepting, the guilty plea, the circuit judge questioned Berry about his competency. In response to the circuit judge’s questions, Berry swore under oath that he was not under the influence of any drugs or alcohol and that he had no mental disabilities or other issues that would impede his understanding of the plea proceedings. Berry also reaffirmed these statements in his signed plea petition.

¶ 15. As'previously recognized, we -give great weight to a defendant’s statements made under oath and in open court. See Cross, 954 So.2d at 500 (¶ 11). Nothing in the record indicates the circuit court ha'd reason to doubt Berry’s competency to plead guilty. Furthermore, Berry failed to raise the issue before the circuit court during the plea hearing, and he later failed to support his assertion through his PCR motion. Berry, the movant here, bore the burden to prove his incompetency. See Vanwey v. State, 55 So.3d 1133, 1136 (¶ 6) (Miss. Ct. App. 2011). Because he failed to do so, we find no error in the circuit court’s denial of Berry’s PCR motion without granting an evidentiary hearing on this issue. See Smith, 196 So.3d at 992 (¶¶ 13-14).

¶ 16. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. TINDELL, J., NOT PARTICIPATING.


text:
    Spencer PRESLEY, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01535-COA
    Court of Appeals of Mississippi.
    11/14/2017

      ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LISA L. BLOUNT
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
   CARLTON, J.,

FOR THE COURT:

¶ 1. Spencer Presley was convicted of burglary of an automobile in the Tunica County Circuit Court and sentenced, as a nonviolent habitual offender, to seven years in the custody of the Mississippi Department of Corrections (MDOC), without eligibility for parole. The trial court also ordered Spencer to pay a $5,000 fine. Spencer now appeals his conviction and sentence. Finding no arguable appellate issues in this case, and finding that the trial court’s judgment of conviction is supported by the record, we affirm Spencer’s conviction and sentence. See Lindsey v. State, 939 So.2d 743, 748 (¶ 18) (Miss. 2005).

FACTS

¶ 2. Spencer and Patricia Presley married in 1998 and later separated in 2010. The record reflects that on the morning of May 1, 2016, Patricia awakened to a banging sound outside of her house. Patricia testified that she looked out of a window and saw Spencer standing beside her 2011 Dodge Caliber “knocking” at the driver’s side backseat window with a tire iron. After Patricia called the police, she looked out of the window and saw Spencer driving off in his vehicle. When the police arrived, Patricia went outside and observed a broken driver’s side backseat window and the driver’s door left open. Patricia testified that the glove compartment was open, and the owner’s manual and registration documents were missing, along with several CDs and a cup containing loose change. Patricia also testified that she purchased the car in 2011, after she and Spencer separated, and the title to the car is in her name only.

¶ 3. At trial, Spencer admitted being in Tunica on May 1, 2016. He also admitted to driving by Patricia’s home early that morning. Spencer stated that he was going by Patricia’s house to see her. Spencer testified that as he drove by Patricia’s house, he saw the car door open and the car window broken. Spencer stated that he kept driving and called Patricia on his cell phone, but she did not answer. Spencer testified that he called Patricia “because I figured that they probably would accuse me of doing this. So ... I kept going.” Spencer asserted that he never got out of the car. He also testified that he did not break the windows out of Patricia’s vehicle or take anything from the vehicle.

¶4. During cross-examination, Spencer claimed that Patricia lied about seeing him hit her car with a tire iron. Spencer explained “at the time [she called the police], she felt that I had did it, and then she had a change of heart, as far as me doing it.” He also claimed that Patricia was made “by force” to testify against him, and that “she wanted to drop the charges.”

¶ 5. After a trial held on October 17, 2016, the jury found Spencer guilty of burglary of an automobile and the trial court sentenced him, as a nonviolent habitual offender; to seven years in the custody of the MDOC, without eligibility for parole. The trial court also ordered Spencer to pay a $5,000 fine.

¶ 6. Spencer now appeals his conviction and sentence. The Office of State Public Defender, Indigent Appeals Division, represents Spencer, and his attorney filed a Lindsey brief asserting that he found no error in the trial-court proceedings. See Lindsey, 939 So.2d at 748 (¶ 18).

DISCUSSION

¶7. In Lindsey, the Mississippi Supreme Court set forth the procedure for appellate courts to utilize when reviewing cases in which counsel for indigent defendants find no arguable issues in the record to present on appeal:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(l)-[ (5), (8) ]; see also Smith v. Robbins, 528 U.S. 259, 280-81, 120 S.Ct. 746, 145 L.Ed.2d 756 ... (2000) (stating that “counsel’s summary of the case’s procedural and factual history, with citations of the record, both ensures that a trained legal eye has searched the record for arguable issues and assists the reviewing court in its own evaluation of the case.”).
(2) As a part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client’s appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding arrest; (b) any possible violations' of the client’s right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing,
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief. ■
(4) Should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant’s success on appeal,
(5) Once briefing is complete, the appellate court must consider the case on its merits and render a decision.

Stewart v. State, 130 So.3d 559, 561-62 (¶ 13) (Miss. Ct. App. 2014).

¶ 8. In examining the record before us, we acknowledge that Spencer’s appellate defense counsel complied with the procedures implemented in Lindsey. We additionally find that appellate defense counsel’s brief complied with Rule 28(a)(1)-(5) and (8), including a statement of the case and a statement of the facts with record citations. Appellate defense counsel provided his assertion that

pursuant to Lindsey ..., he has diligently searched the procedural and factual history of this criminal action and scoured the record searching for any arguable issues which could be presented to the Court on [Spencer’s] behalf in good faith for appellate review, and upon conclusion, found no errors which were ultimately prejudicial to [Spencer],

if 9. Appellate defense counsel also maintained the following:

The entire record and transcript were scrupulously reviewed and matters considered in counsel’s search for error included: (a) the reason' for the arrest and the circumstances surrounding arrest; (b) any possible violations of the defendant’s right to counsel; (c) the sufficiency of the indictment; (d) the weight and sufficiency of the evidence; (e) speedy trial issues; (f) all rulings of the trial court; (g) possible issues of ineffective counsel; (h) all jury instructions; (i) the admission or exclusion of all exhibits; (j) possible prosecutorial misconduct; and (k) possible misapplication of the law in sentencing.

' ¶ 10. -Appellate 'defense counsel stated that he “is unable to argue, in good faith, any prejudicial error.” Appellate defense counsel- also confirmed that he advised Spencer that although he found no arguable issues in the record, Spencer possessed the right to file a pro se brief.-On April 5, 2017, on the Court’s own motion, this Court entered an order providing Presley with forty-five days to file a, pro se supplemental brief, if he chose to do so. The record shows, that Spencer failed to file a prose brief.

•¶ 11. Upon our review, we find that the record contains sufficient evidence to support the jury’s finding that Spencer was guilty of the charged offense of auto burglary. Cf. Allred v. State, 130 So.3d 504, 507 (¶ 8) (Miss. 2014). We also recognize that “the jury is the sole judge of the credibility of witnesses and the weight and worth of their testimony.” Lenoir v. State, 222 So.3d 273, 279 (¶ 29) (Miss. 2017). Furthermore, after reviewing the record, we find no arguable ■ appellate issues in' this case, and in so'doing, we find that Spencer’s appellate counsel complied with the supreme court’s holding.,in Lindsey. We therefore affirm the trial court’s judgment.

¶ 12. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. TINDELL, J., NOT PARTICIPATING.


author: BARNES, J., . CARLTON, J.,

text:
    Jamie Lynn ORR, Appellant v. Mallory MORGAN, the Buckle, Inc. and Nason Stephens, Appellees
    NO. 2016-CA-01279-COA
    Court of Appeals of Mississippi.
    11/14/2017

      ATTORNEYS FOR APPELLANT: JOHN W. CHRISTOPHER, GREGORY JOHN FARIES, ERIK GREGORY FAR-IES
    ATTORNEYS FOR APPELLEES: MARK D. MORRISON, WILLIAM CHRISTOPHER IVISON
   BARNES, J.,

FOR THE COURT:

¶ 1. Retail-store employee Jamie Lynn Orr was charged with petit larceny for stealing her employer’s iPad. After she was acquitted of the charge, Orr filed a malicious-prosecution claim against her former employer, The Buckle Inc., and the store’s managers, Mallory Morgan and Nason Stephens (the Appellees). The Ap-pellees filed a motion for summary judgment, which the Madison County Circuit Court granted. On appeal, we find there were genuine issues of material fact whether the Appellees had probable cause to institute the criminal proceedings against Orr and whether they acted with malice. Accordingly, we reverse and remand for further proceedings,

FACTS AND PROCEDURAL HISTORY

¶ 2. On the evening of July 4, 2014, Orr was working at The Buckle, along with Stephens and two other employees, Thomas Manchester and Lauren Miller. She had been employed since May 2014, and had only worked approximately eight shifts. Security footage reveals that, prior to closing, Orr was using the store’s iPad at the register counter. Stephens was also present, closing out the registers, as it was closing time. Orr took the iPad to the storeroom (out of view of the security camera) and returned to the front of the store with a large purse. No iPad was visible. She talked with Stephens for several minutes about her schedule, with Orr expressing she wanted more hours. After some discussion, Orr verbally gave Stephens her two-week notice, and she walked out to the parking lot with Manchester and Stephens. Miller had already left, carrying just her keys and cell phone.

¶ 3. The following day, Morgan was unable to locate the store’s iPad. After other employees searched the store and were questioned about the missing iPad, Morgan contacted the corporate office. Viewing the store’s security footage, The Buckle’s corporate office told Morgan to file a report with the local police. Morgan contacted Ridgeland Police Department to reported that a black iPad mini, valued at $350, was presumed stolen, along with a case, valued at $150. Morgan told police that Orr was the last person seen with the iPad and that Orr had taken the iPad into the storeroom. On July 16, 2014, Stephens signed an affidavit against Orr for petit larceny, after being requested by police to do so. Orr was arrested and charged with petit larceny. On December 16, 2014, Orr was found “not guilty” of the charge.

¶4. Orr filed a complaint against the Appellees on January 19, 2015, alleging malicious prosecution, false arrest, false imprisonment, civil conspiracy, negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress. Orr said that Morgan and Stephens acted maliciously by filing a false statement with police and an affidavit for a warrant, respectively, and Morgan’s conclusion that Orr stole the iPad “was based on nothing more than unfounded suspicions and conjecture.” She said that she went to the back storeroom to plug in the iPad. She also noted that her purse was open in front of Stephens during their discussion.

.¶ 5. After discovery, the Appellees filed a motion for summary judgment on March 17, 2016, and the circuit court granted the motion. Aggrieved, Orr argues on appeal that there were no genuine issues of material fact as to two elements of her claim for malicious prosecution: (1) want of probable cause; and (2) malice in instituting the proceedings. She also contends that since her remaining- claims were dependent on the- same -set of- operative facts, her other claims should survive summary judgment. Therefore,- she-argues the court’s grant of summary judgment should be reversed and the case remanded for further proceedings.

STANDARD OF REVIEW

¶ 6. We employ a de novo standard of review to a circuit court’s grant or denial of a summary-judgment motion. Franklin Collection Serv. Inc., v. Collins, 206 So.3d 1282, 1288 (¶ 25) (Miss. Ct. App. 2016) (citing Ferguson v. Miss. Farm Bureau Cas. Ins., 147 So.3d 374, 377 (¶ 12) (Miss. Ct. App. 2014)). “Summary judgment ‘shall’ be granted ‘if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Id. (quoting M.R.C.P. 56). Initially, the moving party has the burden of proof “to demonstrate that there is no genuine issue as to any material fact.” Id. (citing Ferguson, 147 So.3d at 377 (¶ 12)). Then, the burden of proof shifts to the nonmovant, “who must produce specific facts that there is a genuine material issue for trial.” Id. “In reviewing a summary-judgment motion, the evidence will be considered ‘in the light most favorable to the nonmoving party.’ ” Id.

DISCUSSION '

I. Malicious Prosecution

¶ 7, Orr' claims the Appellees never had a “honest belief’ in her guilt or possessed reasonable grounds to accuse her of petit larceny. For Orr to maintain a suit for malicious prosecution, she is required to prove the following elements by a preponderance of the evidence:

(1) The institution or continuation of original judicial proceedings, either criminal or civil; (2) [b]y, or at the insistence of the defendants; (3) [t]he termination of such proceedings in [the] plaintiffs favor; (4) [mjalice in instituting the proceedings; (5) [w]ant of probable cause for the proceedings; arid (6) [t]he suffering of damages as a result of the action or prosecution complained of.

Moon v. Condere Corp., 690 So.2d 1191, 1194 (Miss. 1997) (citations omitted). Orr’s appeal focuses on two elements: want of probable- cause and malice in instituting the proceedings.

4. Probable Cause

¶8. In Hudson v. Palmer, 977 So.2d 369, 381 (¶ 33) (Miss. Ct. App. 2007), this Court held:

In the context of a malicious[-]prosecution claim, probable cause consists of a reasonable and honest belief in the guilt of the accused. Coleman [v. Smith ], 914 So. 2d [807, 813 (¶ 12) (Miss. Ct. App. 2005)]. Also, “probable cause is determined from the facts apparent to the observer when the prosecution is initiated.” Id. If probable cause existed for the initiation of criminal proceedings, a claim for malicious prosecution must fail. Id.

“Unfounded suspicion or conjecture are not proper bases for finding probable cause.” Perkins v. Wal-Mart Stores Inc., 46 So.3d 839, 845 (¶ 13) (Miss. Ct. App. 2010).

¶ 9. There is no factual dispute that Orr possessed the store’s iPad on the night of July 4, 2014, No one saw Orr take the iPad from the store, but Orr was the last person seen with it. Orr left the front of the store with the iPad, and she came out of storeroom area a few minutes later with a large purse. According to Orr, she took the iPad to the storeroom to charge the battery. She put her purse on the counter in front of Stephens and, after some discussion about her work schedule, told Stephens she was quitting and gave her two-week notice. When she and Stephens left the store, Orr was carrying her purse. Regarding the other two employees present at closing, Manchester left with Stephens and Orr that night. He returned to work the next week and assisted Morgan in searching for the , iPad. Miller never returned to work after the alleged theft either, but she left that night in view of others without a purse—only keys and a phone.

¶ 10. Orr stated in her deposition that she had only used the iPad a couple of times to enter in a referral for work. When asked whether it was customary to plug in the iPad, she said she only plugged it in that one time. But she claimed that, prior to using it, “Krista, who was assistant manager at the time, said that if I was using it and if it was ever low, to plug it up.” Morgan acknowledged in her deposition that'all employees had access to the iPad, and the charger for the iPad was in the back room. If an employee noted the battery was low, he or she had the authority to go the back room and charge it.

¶ 11. In Perkins, this court found that probable cause existed because an employee said the plaintiff, Perkins, knew he did not pay for an ink cartridge, and video showed him looking at his change from the transaction. Unlike Perkins, no one saw Orr take the iPad. Furthermore, management did .not contact Orr until days after the iPad was discovered missing. Rather, store management continued to search the store, unsure of what happened to it, which a jury could reasonably find indicates conjecture as to what happened to it or who may have taken it. In her statement to police, Morgan said that “it seemed, to [her] that [Orr] took the iPad into the back to conceal it in her purse.” (Emphasis added). She testified: “We had searched the entire store. We were hoping that it might turn back up. And I had attempted to reach out to everyone who was there that night, and to every teammate who worked there ... So after no conclusion, then that’s when we filed the report.” (Emphasis added). Morgan did not contact the corporate office until July 7. In her email, she noted that the iPad was “MIA” when she came to work Saturday, and “no one seems to remember who had it last or where it was.”

¶ 12. But Orr said Morgan called her on July 12 (a week later), accused her of stealing the iPad, and told Orr that she did not need to talk to anyone else because she knew Orr stole the iPad. Stephens testified that he watched the security video before signing an affidavit for an arrest warrant and talked to employees “that were working with me at the time,” including Manchester and Miller. However, Stephens did not “look into [Orr’s] purse.” He said that he, Morgan, and’ coiporate “came to our conclusion based on the information through the video and narrowing down where it was last seen.” With regard to the other employees working that evening, Morgan assumed Miller did not take the iPad because security footage showed Miller carrying keys and a phone. Miller acknowledged in her deposition that the Ap-pellees never contacted her regarding the missing iPad. And Morgan eliminated Manchester simply because he walked out with Orr and Stephens. Morgan said:

Well, we had looked at [Miller], I mean, just kind of the power of elimination, we looked at [Miller]. And you can see her leaving on camera that night with her keys and her phone when she leaves. [Manchester] left that night with [Stephens], and you can also see him leaving on camera. And [Stephens] actually [gave] him a ride home that night, because he didn’t have a car. And so, just by [Stephens] and him they were both eliminated.... [Orr] was the only one out of everyone who never connected with me after I tried calling her to ask about the iPad.... So just based off of that information, I assume, that’s why the police and our home office decided to move forward.

(Emphasis added). Morgan admitted in her testimony that she “assume[d]” Orr took it based on the circumstances. Stephens said it was not his decision to file the affidavit; he signed the affidavit because his employer instructed him to do so. The only investigation he conducted was to watch the security video and search the store in an attempt to locate the missing iPad. We also note that video footage reveals that Orr put her open purse on the counter and rummaged around in it looking for her phone right in front of Stephens.

¶ 13. Therefore, the only basis for the charge of petit larceny is that Orr was the last person to be seen using the iPad. “[P]robable cause must not be based upon an inadequate and unreasonable investigation of the circumstances concerning the alleged criminal conduct.” Benjamin v. Hooper Elec. Supply Co., 568 So.2d 1182, 1191 (Miss. 1990) (citing Wainauskis v. Howard Johnson Co., 339 Pa.Super. 266, 488 A.2d 1117, 1123 (1985)). In Junior Food Stores Inc. v. Rice, 671 So.2d 67, 74-75 (Miss. 1996), the Mississippi Supreme Court found a lack of probable cause after the store brought grand-larceny charges against one of its employees when money was discovered missing, as the employee was one of three people with keys to the store, worked the last shift, and failed a polygraph test. The court noted:

Other employees and possibly past employees had keys to the store. Apparently, not all employees who had keys to the store or had access to the keys were subjected to polygraph examinations. It is possible that the other two employees who took polygraph examinations and passed did so after [Ralph] Rice’s arrest and not before. No evidence indicates that Super Stop sought the advice of an attorney before instituting criminal proceedings. Not one witness was found that could implicate Rice in the theft. None of the missing money was found in Rice’s possession. In fact, the only evidence unique to implicating Rice as the thief as opposed to any other employee' was the results of a polygraph examination conducted by [Daniel] West, whom Super Stop had employed on a regular basis since 1981. At trial, West admitted 'that polygraph examinations can result in erroneous conclusions and are not 100% accurate. Thus, from the foregoing facts, the jury could reasonably have believed that Rice had done no wrong and that there was no reasonable basis for a belief of the contrary.

(Emphasis added).

¶ 14. As already noted, all store employees had access to the iPad, and it was not out of the ordinary for an employee to take the iPad to the back room to charge the device. We also observe that Orr talked with Stephens for several minutes after going to the back, putting her purse on the counter right in front of him. Viewing the evidence in the light most favorable to the nonmovant, we find a genuine issue of material fact exists as to whether The Buckle’s management team had a reasonable belief that Orr took the iPad and, therefore, whether probable cause existed to bring charges against Orr. Accordingly, we find the circuit court erred in granting summary judgment as to the claim of malicious prosecution.

B. Malice

¶ 15. In regard to a malicious-prosecution claim, “[mjalice does not denote ‘mean or evil intent’ to perform an action.” Robinson v. Hill City Oil Co., 2 So.3d 661, 666 (¶ 18) (Miss. Ct. App. 2008) (quoting Strong v. Nicholson, 580 So.2d 1288, 1293 (Miss. 1991)). It simply means that the “prosecution was instituted primarily for a purpose other than that of bringing an offender to justice.” Id. (quoting McClinton v. Delta Pride Catfish Inc., 792 So.2d 968, 974 (¶ 15) (Miss. 2001)). In analyzing a claim of malice, we must examine “the objective of the defendant who instituted the criminal proceedings.” Perkins, 46 So.3d at 845 (¶ 11) (quoting McClinton, 792 So.2d at 974 (¶ 16)). Based on this criteria, we find nothing in the record to support a finding of malice on the part of the Appellees.

¶ 16. However, the “absence of probable cause for the prosecution is circumstantial evidence of malice.” Benjamin, 568 So.2d at 1191 (citing Royal Oil Co. Inc. v. Wells, 500 So.2d 439, 444 (Miss. 1986)). As we have found that there was a genuine issue of material fact as to the absence of probable cause, we find there is a genuine dispute as to the Appellees’ state of mind when • filing the affidavit against Orr. Moreover, summary judgment was improper, as this-element of Orr’s malicious-prosecution claim is generally a question for the jury. See C & C Trucking Co. v. Smith, 612 So.2d 1092, 1100 (Miss. 1992) (“[Sjince the question of malice is a question of fact, it is to be determined by the jury unless- only one conclusion may reasonably be drawn from the evidence).

II. Civil Conspiracy

¶ 17. Orr contends the Appel-lees provided false information to police and committed perjury at her criminal trial. In doing so, she suggests the Appellees formed a civil conspiracy. “To establish a civil conspiracy, the plaintiff must prove (1) an agreement between two or more persons, (2) to accomplish an unlawful purpose or a lawful purpose unlawfully, (3) an overt act in furtherance of the conspiracy, [and] (4) ... damages to the plaintiff as a proximate result.” Bradley v. Kelley Bros. Contractors, 117 So.3d 331, 339 (¶ 32) (Miss. Ct. App. 2013) (citations omitted). However, because the first element requires an agreement between two persons, and Morgan and Stephens were agents of The Buckle, Orr’s claim must fail. “A corporation cannot conspire with itself any more than a private individual can, and it is the general rule that the acts of the agent are the acts of the corporation.” Nelson Radio & Supply Co. v. Motorola Inc., 200 F.2d 911, 914 (5th Cir. 1952). Therefore, we find no genuine issue of material fact exists to support Orr’s claim for civil conspiracy.

III. Intentional Infliction of Emotional Distress

¶ 18. A claim for'intentional infliction of emotional distress requires:

(1) The defendant acted willfully or wantonly toward the plaintiff by committing certain described actions; (2) [t]he defendant’s acts are ones, “which evoke outrage or revulsion in civilized society”; (3) [t]he acts were directed at, or intended to cause harm to, the plaintiff; (4) [t]he plaintiff “suffered severe emotional distress as a direct result of the acts of the defendant”; and (5) “[s]uch resulting emotional distress was foreseeable from the intentional acts of the defendant.”

Rainer v. Wal-Mart Assocs. Inc., 119 So.3d 398, 403-04 (¶ 19) (Miss. Ct. App. 2013) (quoting J.R. ex rel. R.R. v. Malley, 62 So.3d 902, 906-07 (¶ 15) (Miss. 2011)). But Mississippi’s standard for a claim of intentional infliction of emotional distress is very high, “focusing specifically on the defendant’s conduct and not the plaintiffs emotional condition.” Robinson, 2 So.3d at 668 (¶ 26) (citing Funderburk v. Johnson, 935 So.2d 1084, 1099 (¶ 40) (Miss. Ct. App. 2006)). While the Appellees .may have lacked, probable cause and, thus, possibly acted with malice in charging Orr with petit larceny, the record does not support a finding that their actions would “evoke outrage or revulsion in civilized society.” Therefore, we find this claim does not survive summary judgment.

IV. Punitive Damages

¶ 19. As to Orr’s claim for punitive damages, the Mississippi Supreme Court has held that “the malice necessary to undergird the;malicious[-]prosecution tort is close enough to the malice' prerequisite to an assessment of punitive damages to warrant at the very least submission of the issue to the jury[.]” Royal, 500 So.2d at 441. As we have determined that the issue of malice for Orr’s malicious-prosecution claim survives summary judgment and warrants consideration by a jury, we similarly hold the court erred in granting summary judgment as to the issue of punitive damages:

V. False Arrest, False Imprisonment, Negligence, and Negligent Infliction of Emotional Distress

¶20. Orr combines these claims together on appeal, arguing:

As to these four causes of action, [T]he Buckle, without a factual basis, repeatedly argues that probable cause existed to initiate petit larceny, and therefore, [T]he Buckle is entitled to a judgment as a matter of law as to these causes of action. Probable cause never existed,'.and the [c]ircuit [e]ourt committed reversible error in granting .the summary[-]judgment motion.

As she only addresses the existence of probable cause, we will restrict our discussion of these claims to that singular element.

¶ 21. This -Court has held: “As with a claim for malicious prosecution, a claim of false arrest must fail where there was probable cause to make thé arrest.” Richard v. Supervalu, Inc., 974 So.2d 944, 949 (¶ 19) (Miss. Ct. App. 2008) (citations omitted). Conversely, it stands to reason that if probable cause is found lacking, this could support a claim for false arrest. As we have found there is a genuine.issue of material fact regarding probable cause, we find that Orr’s claim for false arrest may be considered on remand. Furthermore, while probable cause is not an element of a claim for false imprisonment, as false imprisonment may arise from a false arrest, that too may be considered, on remand.

¶ 22. As to the remaining claims, we also find the court 'did not err in granting summary judgment as to Orr’s claims of negligence and negligent infliction of emotional distress. As to- Orr’s claim for negligence, this Court held in McGuffie v. Herrington, 966 So.2d 1274, 1278 (¶ 10) (Miss. Ct. App. 2007), that because the argument for the plaintiffs “simple negligence claim [was] indistinguishable from her malicious[-]prosecution claim,” that claim “survives only in the forip of [the plaintiffs] malicious[-]prosecution claim.” As noted above, Orr’s claim for negligence simply repeats her argument for malicious prosecution.

¶23. Orr also failed to produce any genuine issue of material fact for'the claim of negligent infliction of emotional distress. The tort of negligent infliction of emotional distress requires a plaintiff to “plead and prove ‘some sort of injury or demonstrable harm, whether it be physical or mental, and that harm- must have been reasonably foreseeable to the defendant.’ ” Breeden v. Buchanan, 164 So.3d 1057, 1069 (¶ 60) (Miss. Ct. App. 2015) (quoting Am. Bankers’ Ins. Co. of Fla. v. Wells, 819 So.2d 1196, 1208 (¶ 40) (Miss. 2001)). The existence of probable cause is not relevant to this claim; thus, Orr makes no argument to substantiate this claim.

CONCLUSION

¶ 24. We affirm the circuit court’s granting of summary judgment as it relates to Orr’s claims for civil conspiracy, intentional infliction of emotional distress, negligence, and negligent infliction of emotional distress. ■ With regard to the claims of malicious prosecution, false arrest, false imprisonment, and punitive damages, we reverse the circuit court’s judgment and remand for further proceedings.

¶ 25. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

LEE, C.J., IRVING AND GRIFFIS, - P.JJ., FAIR AND WESTBROOKS, JJ., CONCUR. CARLTON, J.; DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY GREENLEE, J.; WILSON, J., JOINS IN PART. ■ - TINDELL, J., NOT PARTICIPATING.

. CARLTON, J.,

DISSENTING IN PART:

¶ 26. Because I would affirm the circuit court’s grant of summary judgment to the Appellees on Orr’s malicious-prosecution claim, I respectfully dissent in part from the majority’s opinion.

¶ 27. In McClinton v. Delta Pride Catfish Inc., 792 So.2d 968, 973 (¶ 9) (Miss. 2001), the Mississippi Supreme Court explained:

When a party opposing summary-judgment on- a claim or defense as to which the party will bear the burden of proof at trial, fails to make a showing suffi-dent to establish an essential element of the claim or defense, then all other facts are immaterial and the moving party-is entitled to judgment as a matter of law.

(Quoting Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1214 (Miss. 1996)).

¶ 28. In the present case, Orr bore the burden of proving by a preponderance of the evidence each of the following ele-merits of malicious prosecution: “(1) The institution of a proceeding^] (2) by, or at the insistence of the defendant!;] (3) the termination of such proceedings in the plaintiffs favor[;] (4) malice in instituting the proceedings!];] (5) want of probable cause for the proceedings!]; and] (6) the suffering of injury or damage as a result of the prosecution.” McClinton, 792 So.2d at 973 (¶ 8) (citation omitted). Upon review, I find that Orr failed to meet her burden of proof on two of the required elements— malice and want of probable cause.

¶ 29. “Probable cause is determined from the facts apparent to the observer when the prosecution is initiated. Probable cause requires both (1) a subjective element—an honest belief in the guilt of the person accused, and (2) an objective element—reasonable grounds for such belief.” Id. at (¶ 11) (internal citation omitted). “If probable cause existed for the initiation of criminal proceedings, a claim for malicious prosecution must fail.” Hudson v. Palmer, 977 So.2d 369, 381 (¶ 33) (Miss. Ct. App. 2007) (citation omitted).

¶ 30. The undisputed record evidence shows the following: (1) The Buckle possessed only one iPad during the time in question; (2) the store’s video surveillance showed this single iPad was last in Orr’s possession; (3) Orr took the iPad to the storeroom area (out of view of the security camera) and returned to the front of the store carrying a large purse; (4) the iPad disappeared after last being seen in Orr’s possession; and (5) The Buckle conducted a diligent investigation and inquiry into the incident but failed to locate the iPad. Based on this evidence, Orr is unable to refute these facts, and she is unable to refute “that a reasonable employer under the same circumstances would have had an honest belief in [her] guilt.” McClinton, 792 So.2d at 973 (¶ 11). Furthermore, the record reflects that, at each level of prosecution, agreement existed between the local police and prosecutor that the case against Orr should progress. Compare id. Because I find Orr failed to meet her burden to prove the Appellees lacked probable cause at the time they initiated the prosecution, I would affirm the circuit court’s grant of summary judgment to the Appellees on Orr’s malicious-prosecution claim.

¶ 31. In addition, I find that Orr failed to prove by a preponderance of the evidence that the Appellees maliciously initiated the proceedings against her. See id. at (¶8). As this Court has previously explained:

In our analysis of a claim of malice, we must focus on the objective of the defendant who instituted the criminal proceedings. The, malice required for malicious prosecution occurs when the primary purpose of prosecuting is one other than bringing an offender to justice. A citizen may file a criminal complaint as long as he acts either in good faith, i.e., for a legitimate purpose or with reasonable grounds to believe that the person against whom proceedings are initiated may be guilty of the offense of which he is charged. For liability to be imposed, there must be an affirmative action that would advise, encourage, or pressure the institution of criminal proceedings.

Perkins v. Wal-Mart Stores Inc., 46 So.3d 839, 845 (¶ 11) (Miss. Ct. App. 2010) (internal citations and quotation marks omitted).

¶ 32. I agree with the majority’s finding that, based on the criteria established by Mississippi caselaw, “nothing in the record [exists] to support a finding of malice on the part of the Appellees.” Maj. Op. at (¶15). As previously discussed, Orr bore the burden to provide competent evidence to demonstrate the Appellees acted unreasonably and in bad faith when they initiated the petit-larceny proceedings against her. See Perkins, 46 So.3d at 845 (¶ 13). However, Orr failed to refute the Appel-lees’ undisputed evidence showing they possessed reasonable grounds to believe she stole the iPad and, therefore, to report her to the police.

¶ 33. For the foregoing reasons, I would affirm the circuit court’s grant of summary judgment to the Appellees on Orr’s malicious-prosecution claim. I therefore dissent fi’om that part of the majority’s opinion that would reverse the circuit court’s grant of summary judgment and remand the case for further proceedings.

GREENLEE, J., JOINS THIS OPINION. WILSON, J., JOINS THIS OPINION IN PART.

      . There is much discussion in the appellant’s brief about the discrepancy in the record as to whether the iPad in question was a regular iPad or an iPad mini. Morgan's statement to police was a black ''mini” iPad was stolen. There was confusion among the deposed employees about whether the iPad in question was a mini or regular iPad, and Morgan did email the corporate office, stating the “mini iPad is missing.” However, nothing indicates that the store had two iPads. In fact, when Orr was asked whether she had "use[d] any of the iPads” at the store, Orr testified: "There was one iPad, and I used it a couple of times.” She reiterated throughout her deposition that she had only ever seen the one iPad, the one she had used.

      . Orr’s mother was also an original complainant, but she was later dismissed from the case by agreement of both parties.

      . For obvious reasons, Orr never returned to work.

      . Miller explained in her deposition that she had another job, and her shifts at The Buckle were interfering with her work schedule there.

      .There is no other mention of anyone named Krista in the record; so we are unsure to whom Orr is referring, .

      . Orr cites no authority on this issue, which would generally preclude the issue from appellate review. ‘‘The failure to cite authority in support of an issue precludes this Court from considering the issue on appeal.” Welch v. Bank One Nat'l Ass'n, 6 So.3d 435, 439 (¶ 14) (Miss. Ct. App. 2009) (quoting Kirkley v. Forrest Cty. Gen. Hosp., 991 So.2d 652, 662 (¶ 35) (Miss. Ct. App. 2008)). However, as Orr has thoroughly discussed and argued the existence of probable cause throughout her brief, we will address this issue on the merits..

      . "To prove false imprisonment a plaintiff must show (1) detention of the plaintiff and (2) the unlawfulness of the detention/.’ Hudson v. Palmer, 977 So.2d 369, 383 (¶ 39) (Miss. Ct. App. 2007) (citing Alpha Gulf Coast Inc. v. Jackson, 801 So.2d 709, 720 (¶ 28) (Miss. 2001)).