author: KING, JUSTICE, MAXWELL, JUSTICE, COLEMAN, JUSTICE,

text:
    CLARKSDALE MUNICIPAL SCHOOL DISTRICT, Clay County School District, Greene County School District, Greenville Public School District, Hattiesburg Public School District, Humphreys County School District, Jackson Public School District, Leake County School District, Leland School District, North Bolivar Consolidated School District, Okolona Municipal Separate School District, Prentiss County School District, Richton School District, Simpson County School District, Smith County School District, Sunflower County Consolidated School District, Tate County School District, Wayne County School District, West Tallahatchie School District, West Bolivar Consolidated District and Wilkinson County School District v. STATE of Mississippi
    NO. 2015-CA-01227-SCT
    Supreme Court of Mississippi.
    10/19/2017

      ATTORNEYS FOR APPELLANTS: D. RONALD MUSGROVE, MICHAEL SHELTON SMITH, II, MICHAEL V. RATLIFF, DORIAN E. TURNER, CASEY LANGSTON LOTT, DUSTIN COLT CHILDERS, JOE-COLBY RAY LANG-STON, JESSE MITCHELL, III, JEFFREY MATTHEW GRAVES, BLAKE DAMON SMITH
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JUSTIN L. MATHENY, HAROLD EDWARD PIZZETTA, III
   KING, JUSTICE,

FOR THE COURT:

¶ 1. The appellants in this case are twenty-one public school districts. They claim the Legislature’s appropriations for public education during fiscal years 2010-2015 were statutorily inadequate. According to them, Mississippi Code Section 37-151-6 mandated the Legislature fully fund the Mississippi Adequate Education Program (MAEP), but the Legislature failed to follow this mandate. They sought judicial enforcement of this statute in Hinds County Chancery Court, requesting more than $235 million in State funds—the difference between what they received and what they claim they should have received had the Legislature fully funded MAEP.

¶ 2. The chancellor found the school districts were not entitled to relief because he determined that Section 37-151-6 is not a binding mandate. The chancellor therefore dismissed the school districts’ claim. Because we find that Section 37-151-6 is not mandatory, we affirm.

FACTS AND PROCEDURAL HISTORY

¶3. Mississippi Code Section 37-151-6 provides that “[ejffective with fiscal year 2007, the Legislature shall fully fund the Mississippi Adequate Education Program.” Miss. Code Ann. § 37-151-6 (Rev. 2014). The Mississippi Adequate Education Program is the statutory scheme that the Legislature uses to distribute funding to public schools.

¶4. During fiscal years 2010-2015, the Legislature did not fully fund the MAEP in its annual appropriations. Consequently, on August 24, 2014, fourteen public school districts filed suit against the State of Mississippi in the Chancery Court of Hinds County, First District. The complaint was later amended to add seven more school districts, for a total of twenty-one plaintiffs, plus “XYZ School Districts 1-17” (collectively, “the Districts”). The Districts’ complaint alleged that the State failed to fully fund MAEP for the fiscal years 2010-2015 as required by Section 37-151-6. It alleged that the Districts had been injured by this failure because it deprived the Districts of the resources necessary to educate the children of Mississippi.

¶ 5. The Districts requested declaratory, monetary, and injunctive relief. First, the Districts requested a declaratory judgment that the State is obligated -to fully fund the public schools according to the MAEP, Second, the Districts asked the court to enter a money judgment in their favor “[i]n accordance with the State’s legal duty and obligation to fund Plaintiffs for fiscal years 2010, 2011, 20Í2, 2013, 2014, and 2015[.]” Each district requested a money judgment in a specific amount, for a total request of $235,979,247.49. Third, the Districts sought a permanent injunction enjoining the State from further violating the MAEP.

¶ 6. The State answered, asserting that the amended complaint failed to ■ state a claim .upon which relief could be granted and should therefore be dismissed. See M.R.C.P. 12(b)(6). The State subsequently filed a motion for judgment on the pleadings. See M.R.C.P. 12(c). In this motion, the State asserted the Districts’ amended complaint failed on its face for four reasons: (1) Section 37-151-6 “did not, and does not, require future Legislatures to áppropriate and allocate the school districts any specific amount of state funds for any future fiscal years[;]” (2) the “2006 Legislature could not override the discretionary appropriations decision of future Legislatures[;]” (3) the Districts’ “requested multi-million dollar money damages award is barred by sovereign immunity!;]” and (4) the relief sought “is barred by the Mississippi Constitution!,] which mandates a separation of powers between Mississippi’s three branches of government.”

¶ 7. While the State’s Rulé 12(c) motion was pending, the Districts filed a Rule 56(a) motion for summary judgment on December 19, 2014. See M.R.C.P. 56(a). The Districts argued that no material facts were in dispute, because during the fiscal years 2010-2015, the State did not fully fund- MAEP. And the Districts maintained that, as a matter of law, the State was required to fully fund MAEP, based on the “shall” language in Section 37-151-6.

¶ 8. On January 14, 2015, the chancéllor heard both the State’s motion for judgment on the pleadings and the Districts’ motion for summary judgment. On July 15, 2015, the chancellor entered an order granting the State’s motion for judgment on the pleadings and denying the Districts’ motion for summary judgment.

¶9. In interpreting Section 37-151-6, the chancellor found “the entirety of the Mississippi Accountability and Adequate Education Program Act of 1997 must be considered to determine the legislative intent thereof.” And “[w]hile §.37-151-6 provides the general provision that the MAEP shall be fully funded beginning fiscal year 2007, § 37-15-7 describes the specific annual allocation of funds for MAEP, including an alternative for years in which MAEP is not fully funded.” (Emphasis in original.) Thus, the chancellor concluded the Districts’ interpretation of Section 37-15-6 as “a mandatory annual .duty upon the Legislature to automatically vote to appropriate and ■ allocate to each Mississippi public school district 100% of the funds calculated under MAEP’s budget estimation formula for every fiscal year after 2009” was too “limited,” because it “fail[ed] to take into consideration the later provision of [Section] 37—151—7(l)(f) providing for alternative procedures to ‘fully funding’ the MAEP.” Instead, the chancellor found he “must interpret the statutes in total as'instructing the Legislature to fund the MAEP as fully as possible and providing an alternative when full funding is not had.”

¶ 10. The Districts appeal the final judgment dismissing their complaint. The Districts have raised four issues on. appeal: 1) whether the chancellor erred by failing to convert the State’s Motion for Judgment on the Pleadings to one for summary judgment; 2) whether the chancellor erred by failing to find that Section 37-151-1, et seq., is-the general law mandate of Mississippi Constitution, • Article 8, Section 201, and not an alternative form of funding; 3) whether the chancellor erred by not first making a determination that Section 37-151-6 was unambiguous and, in turn, giving the statute its plain meaning and, alternatively, whether the chancellor erred in his ultimate interpretation of Section 37-151-6; and 4) whether the chancellor erred by denying the School Districts’ Motion for Summary Judgment.

ANALYSIS

1. Standard of Review

¶ 11. The Districts appeal both the grant of the State’s motion for judgment on the pleadings and the denial of the Districts’ motion for summary judgment. Both require de novo review. Booneville Collision Repair, Inc. v. City of Booneville, 152 So.3d 265, 269 (Miss. 2014) (motion to dismiss); Copiah Cty. v. Oliver, 51 So.3d 205, 207 (Miss. 2011) (motion for summary judgment). In reviewing a motion to dismiss, this Court “take[s] the allegations in the plaintiffs complaint as true, and the motion should be denied ‘unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim.’ ” Booneville Collision Repair, 142 So.3d at 269 (quoting Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1275 (Miss. 2006)). Por a motion for summary judgment, this Court “examines all the evidentiary matters before it—admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.”—“in the light most favorable to-the [nonmoving] party[.]” Stewart ex rel. Womack v. City of Jackson, 804 So.2d 1041, 1046 (Miss. 2002). If the moving party is then entitled to judgment as a matter of law, summary judgment should be entered in the moving party’s favor. Id.

¶ 12. The only relevant factual allegation in this case is uncontested:' During the fiscal years '2010-2015, the Legislature did not fully fund MAEP. 'Thus, the primary issue before this Court is whether the Legislature’s' failure to fully'fund MAEP entitles the Districts to relief.

2. Motion to Dismiss on the Pleadings versus Motion for Summary Judgment

¶ 13. The Districts argue that the chancellor committed a reversible procedural error. According to the Districts, because the State attached exhibits to its motion for judgment on the pleadings, the chancellor should have converted the motion to one for summary judgment. Because he did not, the Districts argue that the judgment must be reversed.

' ¶ 14( This argument fails because the chancellor did not rely on matters oütside the pleadings. Under Rule 12(c):

If, on, a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided, in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56[.]

M.R.C.P. 12(c). While the State did attach exhibits to its motion, those exhibits did not present “matters outside the pleadings.” Rather, the exhibits consisted merely of copies of the law. Thus, it was not necessary for the chancery court to convert the motion to a motion for summary judgment.

¶ 15. Furthermore, in disposing of the Districts’ complaint, the chancellor actually did follow the requirements of Rule 56. See M.R.C.P. 56(c). The purpose of requiring a Rule 12(c) motion to be converted to a Rule 56 motion is to give the other side at least ten days’ notice that the court'is going to consider matters outside the pleadings and an opportunity to present evidence in response. See Palmer v. Biloxi Reg’l Med. Ctr., 649 So.2d 179, 182-83 (Miss. 1994) (“It is important that the court give the parties notice of the changed status of the motion and a reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”). Here, the Districts clearly had both.

¶ 16. In fact, it was the Districts that asked the chancellor to consider matters outside the pleadings by filing their motion for summary judgment more than ten days before the January 14, 2015, hearing. The Districts attached multiple exhibits to their motion and presented these exhibits at the hearing. The Districts cannot now complain that they lacked the required ten days’ notice and the opportunity to present all materials relevant to defend the State’s motion. See id.

3. Statutory Interpretation

a. Whether Section 37-151-6 is the “general law mandate” of Section 201.

¶ 17. The Districts contend that Section 37-151-6 is the “general law mandate” to carry out Section 201 of the Mississippi Constitution, and that it thus prevails over appropriations bills. They argue that the chancellor’s interpretation created an unnecessary conflict between Section 37-151-6, Section 37-151-7, and Section 201 of the Mississippi Constitution. We need not address the argument that the chancery court improperly elevated Section 37-151-7 over Section 37-151-fl, because our analysis of Section 37-151-6 does not rely on Section 37-151-7. To the extent the Districts argue or imply that the Legislature cannot fulfill its Section 201 mandate without fully funding MAEP, because that is the only statutory scheme the Legislature has provided to fulfill Section 201’s mandate, that argument is without merit.

18. Section 201 provides that “[t]he Legislature shall, by general law, provide for the establishment, maintenance and support of free public schools upon such conditions and limitations as the Leg-Legmay prescribe.” Miss. Const, art. 8, § 201. The Constitution does not require a specific dollar amount, nor does it man-mana specific formula be used. While the Constitution does require that the Legisla-Legislapass general laws to provide for the establishment, maintenance, and support of free public schools, it also gives the Legislature significant discretion in shap-shapsuch laws, permitting the Legislature to prescribe the “limitations and condi-condiof support. Miss. Const, art. 8, § 201.

¶ 19. For fully funding MAEP to be an enforceable constitutional right, such duty would have to arise from the language of the Constitution itself, which it does not, or be the only way for the Legislature to satisfy its constitutional obligation. But MAEP is not the only general law the Legislature could pass to fulfill its duty under Section 201. In other words, the Districts have not argued the Legislature cannot, as a constitutional matter, provide an alternative to fully funding MAEP. Instead, the Districts simply argue the Legislature did not provide a statutory alternative procedure to fully funding MAEP in the fiscal years 2010 and beyond. Thus, any rights the Districts seek to enforce are purely statutory, and to the extent they argue this is a constitutional matter, that argument is without merit.

b. Whether Section 37-151-6 is mandatory.

¶ 20. “The function of the Court is not to decide what a statute should provide, but to determine what it does provide.” Lawson v. Honeywell Int’l, Inc., 75 So.3d 1024, 1027 (Miss. 2011). “The Court must not broaden or restrict a legislative act.” Id. Whether a “statute is ambiguous, or not, the ultimate goal of this Court in interpreting a statute is to discern and give effect to the legislative intent.” City of Natchez, Miss. v. Sullivan, 612 So.2d 1087, 1089 (Miss. 1992). In determining legislative intent, this Court must first look to the language of the statute at issue. Lawson, 75 So.3d at 1027.

¶21. Section 37-151-6 in its entirety provides that “[ejffective with fiscal year 2007, the Legislature shall fully fund the Mississippi Adequate Education Program.” Miss. Code Ann. § 37-151-6 (Rev. 2014). The language missing from this provision is particularly illuminating. Section 37-151-6 places no obligation or responsibility on the Governor to approve any bill fully funding MAEP.

¶ 22. The Governor must approve and/or sign a bill for it to become law, unless the Legislature overrules his veto. Miss. Const, art. 4, § 72. The Legislature obviously knows of this constitutionally mandated procedure. Yet, with full knowledge of the constitutional legislative process, it failed in Section 37-151-6 to address the Governor’s role. Given the constitutional steps required for a bill to become law, and the failure of Section 37-151-6 to address them, we simply cannot find that the directive in the statute is mandatory.

¶ 23. Consequently, the Districts cannot show any direct entitlement to the funds they request, because they have not shown that the Governor would have signed a bill fully funding MAEP. Thus, the Districts have shown no injury.

CONCLUSION

¶ 24. Because Section 37-151-6 does not obligate the Governor to sign a bill fully funding MAEP, the statute cannot be construed as mandatory. Additionally, because the Governor is not obligated to sign any bill fully funding MAEP, the Districts have not shown any injury, as they cannot show that, even had the Legislature passed a bill fully funding MAEP, that bill would have become law. For these reasons, we affirm the judgment of the chancery court granting the State’s motion for judgment on the pleadings and denying the Districts’ motion for summary judgment.

¶ 25. AFFIRMED.

WALLER, C.J., KITCHENS, P.J., BEAM AND ISHEE, JJ., CONCUR. MAXWELL, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY COLEMAN, CHAMBERLIN AND ISHEE, JJ.;' RANDOLPH, P.J., JOINS IN PART. COLEMAN, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED IN PART BY RANDOLPH, P.J., MAXWELL AND CHAMBERLIN, JJ. RANDOLPH, P.J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION.

MAXWELL, JUSTICE,

SPECIALLY CONCURRING:

IT 26. The majority is correct. The language of Section 37-151-6 did not obligate the Governor to refrain from vetoing any potential bill that fully funded MAEP. But a simpler and more fundamental truth is that the judiciary lacks constitutional authority to hand over $235 million in State funds that the Districts concede the Legislature never appropriated.

.¶ 27. Our Constitution separates the powers of each branch of government. The very first provision of Mississippi’s Constitution decrees:

The powers of the government of the State of Mississippi shall be divided into three distinct departments, and each of them confined to a separate magistracy, to-wit: those which are legislative to one, those which are judicial to another, and those which are executive to. another.

Miss. Const, art. 1, § 1. And “[n]o person or collection of persons, being one, or belonging to one of these departments, shall exercise any power properly belonging to either of these others.” Miss. Const, art 1, § 2. '

¶28. The power to appropriate the State’s financial resources belongs exclusively to the Legislature—not the judiciary. Miss. Const, art. 4, § 33 (vesting the “legislative power of this state” with the Legislature). Indeed, “the Constitution regards the Legislature as the sole repository of power to make appropriations of moneys to be paid out of the state treasury.” Colbert v. State, 86 Miss. 769, 778, 39 So. 65, 67 (1905). Here, we are not faced with .an allegation that the Legislature refused to exercise this power to fulfill its constitutional duty to appropriate funds for public education. See Miss. Const, art. 8, § 201. Instead, the complaint is that the amount of money the Legislature appropriated was not enough.

¶ 29. By requesting monetary relief in an amount to achieve full funding of MAEP for fiscal years 2010-2015, the Districts are essentially asking the judiciary to appropriate unappropriated money. But for us to do so would require we cross the constitutional divide and untie the State’s purse strings. This we are constitutionally restrained from doing because the judicial branch “has no influence over ... the purse[.]” The Federalist No. 78 (A. Hamilton). That power lies instead with the representatives of the people, who during the years in question, through wisdom or folly, opted against appropriating money necessary to fully fund MAEP.

¶ 30. We have long held “[tjhere cannot be a right without a remedy.” Smith v. Williams-Brooke Co., 111 Miss. 393, 401, 71 So. 648, 650 (1916). And here, the judiciary can provide no remedy to the Districts without overstepping our constitutional bounds. Therefore, I specially concur.

COLEMAN, CHAMBERLIN AND ISHEE, JJ„ JOIN THIS OPINION. RANDOLPH, P.J., JOINS THIS OPINION IN PART.

COLEMAN, JUSTICE,

CONCURRING IN RESULT ONLY:

¶ 31. While I agree with the .result reached by the majority, I cannot agree fully with its reasoning. The majority contends that, because Mississippi Code Section 37-151-6 does not speak to the governor’s prerogative to sign, veto, or ignore a bill passed by the Legislature, the Legislature does not intend for it to mandate Legislative ■ action notwithstanding the choice of the word “shall.’? The majority’s argument holds some attraction, especially as that which “shall” be done pursuant to the statute is the full-funding of the Mississippi Adequate Education Program .and, as—as the majority points out—the Legislature cannot turn bills intended to do so into law by itself. However, the issue in today’s case does not include the actions of the Governor but the Legislature alone, and the logic of the majority does not, in my view, address the also-pertinent question of whether the Legislature must, pass laws to fully fund the Program and send them to the Governor, however the Governor may then treat them. After all, by its terms, Section 37-151-6 applies only to the Legislature. Perhaps the Legislature intended to require itself to act and leave the Governor’s decision to the Governor.

¶ 32. However, the Legislature certainly has the authority to amend existing statutes. See Barbour v. Hood, 974 So.2d 232, 241 (¶ 18) (Miss. 2008); Miss. Ethics Comm’n. v. Grisham, 957 So.2d 997, 1003 (¶ 14) (Miss. 2007). Whether the language of the general law is mandatory or not, when the ’ Legislature passes a one-year appropriations law that differs from the general law it does nothing more than temporarily amend or suspend the general law. See Burgos v. State, 222 N.J. 175, 207, 118 A.2d 270, 289, 118 A.3d 270 (2015). Although at least one state court has held that appropriations subserve general laws and cannot conflict with and amend them, see, e.g., Flanders v. Morris, 88 Wash.2d 183, 190, 558 P.2d 769, 774 (1977), because of the legislative power to appropriate money discussed by Justice Maxwell in his opinion, which I join, the reasoning of the Burgos Court is more persuasive. Indeed, the Burgos Court grounded its holding in a similar treatment of the separation of powers within the New Jersey government and the New Jersey Legislature’s power of the purse.

¶ 33. For the foregoing reasons, I would hold that in the instant ease the Legislature acted within its constitutional authority to amend Section 37-151-6 with the underlying appropriations bills.

RANDOLPH, P.J., MAXWELL AND CHAMBERLIN, JJ., JOIN THIS OPINION IN PART.

      . "The Legislature shall, by general law, provide for the establishment, maintenance and support of free public schools upon such conditions and limitations as the Legislature may prescribe.” Miss. Const, art. 8, § 201.

      . The complaint also asked for an additional unspecified amount -for any school districts that may later join the suit.

      . Four amici curiae filed briefs in this appeal—the Mississippi ■ Center for Justice, the Governor, the Speaker of the House, and the State Auditor.

      . The State presumably attached the laws at issue for the chancellor’s convenience.

      . We do not address the potential separation of powers issues inherent in the Legislature attempting to mandate the Governor sign a bill. We simply note that in failing to even attempt to do so, the Legislature made clear its intent that this provision is not mandatory.

      . Legislators all swear an oath to uphold the Mississippi Constitution, to read the Mississippi Constitution, and to execute the requirements imposed by the Mississippi Constitution on the Legislature. Miss. Const, art. 4, § 40.

      .We also note that constitutional problems may exist with one Legislature binding future Legislatures to appropriations. See Miss. Const, art. 4, § 64.

      . See also Miss. Const, art. 4, § 64 (requiring a majority of all members of both houses of the Legislature to "make appropriations of money out of the State Treasury”); Hood ex rel. State Tobacco Litig., 958 So.2d 790, 813 (Miss. 2007) ("Before money can come out of the state treasury, such money must be appropriated by tire Legislature.”); State v. Cole, 81 Miss. 174, 193, 32 So. 314, 315 (1902) ("No money can come into the treasury or go out of it lawfully except as directed by legislative act. Collection and disbursement of public money belong to the legislature, and must be done as it directs.”); cf. also Walker v. U.S. Dep't of Housing & Urban Dev., 912 F.2d 819, 830 (5th Cir. 1990) ("Courts of equity are no exception to the rule that disbursements from the United States Treasury first must be authorized by a congressional appropriation.”).

      . Nor does this case involve what recourse we would have should the Legislature abuse its power of the purse and completely defund a coequal branch of government. See Hosford v. State, 525 So.2d 789, 797 (Miss. 1988).

      . I note the situation would be different if the Legislature had appropriated money to the Mississippi Department of Education, which in turn failed to distribute it to the Districts as directed. If such was the case, we . would be empowered to order the money distributed according to the Legislature's appropriation, See Miller v. State, 130 Miss. 564, 94 So. 706 (1923).


source: Caselaw Access Project

author: MAXWELL, JUSTICE,

license: Public Domain

text:
    Ralph Arnold SMITH, Jr. v. MISSISSIPPI DEPARTMENT OF MENTAL HEALTH and James G. Chastain, Director of the Mississippi State Hospital
    NO. 2016-SA-00987-SCT
    Supreme Court of Mississippi.
    11/09/2017
    ATTORNEY FOR APPELLANT: WILLIAM CHARLES BELL
    ATTORNEYS FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL BY: BENNY McCALIP “MAC” MAY HAROLD EDWARD PIZZETTA, III
    BEFORE RANDOLPH, P.J., MAXWELL AND BEAM, JJ.
   MAXWELL, JUSTICE,

FOR THE COURT:

¶1. Dr. Ralph A. Smith Jr. was arrested and indicted in a murder-for-hire plot in 2012. He was eventually committed to the Mississippi State Hospital at Whitfield, where he has been treated for mental illness. Soon after his arrival at Whitfield, the facility’s director recommended Dr. Smith’s illness required continual, involuntary treatment and that he should remain committed at the facility. Dr. Smith disagreed with the recommendation and has contested his commitment to Whitfield at every step. Most recently, Dr. Smith filed in Hinds County Chancery Court a habeas petition and motion for relief from the chancellor’s ruling that ordered his continued inpatient treatment. Dr. Smith argues he has been improperly confined to Whitfield and should be released immediately or discharged to an outpatient facility.

¶2. The chancellor' denied his petition and motion for relief. And on appeal, Smith argues his habeas petition was wrongly denied and the Mississippi Department of Mental Health lacked standing to oppose his requests. But during the pendency of this appeal, Dr. Smith was discharged from Whitfield to an outpatient facility. So the relief he requests in this appeal can no longer be granted by this Court. We thus dismiss his appeal as moot.

Background Facts and Procedural History

¶3. In 2012, Dr. Smith was arrested and indicted for capital murder, conspiracy, and burglary. In October 2014, a Leflore County Circuit Court judge declared Dr. Smith incompetent to stand trial. Based on this ruling, the Leflore County District Attorney’s Office filed an affidavit in chancery court to begin civil-commitment proceedings. After examinations by a court-appointed physician and psychologist and two hearings, on January 16, 2015, Special Chancellor Hollis McGehee ordered Dr. Smith to be committed to the Mississippi State Hospital at Whitfield.

-¶4. Soon after his arrival at Whitfield, Dr. Smith requested a hearing in Hinds County Chancery Court. The purpose of the hearing was to determine if continued commitment was. necessary. Chancellor Denise Owens appointed counsel for Dr. Smith. She also assigned the hearing to a special master. The hearing took place at Whitfield on March 10, 2015. The special master heard testimony from a physician and psychologist, both employed at Whitfield, that Dr. Smith needed continued “forced treatment” for “a persistent mental disorder.” The special master agreed that Dr. Smith’s continued treatment at Whitfield was necessary and was the least restrictive alternative. Based on the special master’s findings, Judge Owens entered an order on March 10, 2015, continuing Dr. Smith’s commitment at Whitfield.

¶5. On October 13, 2015, Dr. Smith filed a motion requesting a hearing before Judge Owens. He argued that Whitfield’s director had not completed the six-month examination required under Mississippi Code Section 41-21-99. And he insisted he should be released from Whitfield or discharged to an outpatient facility. The Mississippi Department of Mental Health (the Department), through the Attorney General’s Office, responded that Dr. Smith had received his six-month examination on May 8, 2015. They asserted the examination was part of his clinical record. And the next examination was scheduled for November 7,2015.

¶6. Judge Owens held hearings on December 4 and 18, 2015, and heard extensive 'testimony about Dr. Smith’s- mental condition. Dr. Smith called his wife, a counselor from Hinds Behavioral Health Services, and a forensic psychologist from Whitfield as witnesses. The gist of their testimony was that outpatient treatment was sufficient both to treat Dr. Smith and to protect the community. The Department disagreed, Whitfield’s chief forensic psychiatrist testified that outpatient treatment was not sufficient for Dr. Smith’s condition,

¶7, After the December 18, 2015, hearing, both Dr. Smith and the Department submitted proposed findings of fact and conclusions of law. But on January 18, 2016, before Judge Owens issued her final decision, Dr. Smith filed a habeas petition in her court. The petition named the Department and the director of Whitfield as defendants. Dr. Smith argued he was being unlawfully detained at Whitfield. He sought immediate release or discharge to an outpatient facility.

¶8. By February 1, 2016, Judge Owens entered her opinion and order on Dr. Smith’s six-month hearing motion. After weighing the evidence, she was unconvinced outpatient treatment was, at that time, sufficient to treat Dr. Smith. So she ordered he remain committed to Whitfield.

¶9. Dr. Smith responded by filing an amended habeas petition and motion for relief from the chancellor’s order. One of his arguments was that the Department lacked-standing to oppose his release or request for ' outpatient treatment. The chancellor heard arguments on Dr. Smith’s habeas petition and motion for relief. And the parties submitted proposed findings- of fact and conclusions of law.

¶10. After considering each party’s testimony and filings, Judge Owens issued an opinion and order on July 11, 2016. She rejected Dr. Smith’s arguments that (1) the Department lacked standing to participate in the proceedings, (2) the court had no authority to civilly commit Dr. Smith, and (3) he was receiving improper or unlicensed treatment at Whitfield. She found Dr. Smith had waived any objection to the Department’s participation by waiting to challenge standing “until after significant proceedings” had taken place. And even absent waiver, Mississippi’s liberal standing requirements allowed the Department to participate in the proceedings. Further, Judge Owens found the Department had standing because Dr. Smith chose to name it as a defendant.

¶11. Dr. Smith now appeals to this Court. He claims Judge Owens erred by (1) finding the Department had standing to participate in commitment proceedings and (2) wrongly denying his habeas petition. Dr-.- Smith -filed a related appeal, Smith v. State, 2015-CA-1163-SCT, in which this Court affirmed in a per-curiam opinion dated August 24, 2017. The parties supplemented the record and provided supplemental briefs in that appeal.

¶12. It was established in Smith v. State, 2015-CA-1163-SCT, that Dr. Smith is no longer in Whitfield. Judge Owens ordered Dr. Smith to' be discharged to Pine Grove Behavioral Health and Addiction Services (Pine Grove) for a “step-down” program where Dr, Smith would first be confined to involuntary inpatient treatment at Pine Grove and eventually transition to treatment as an outpatient. She based her decision on a July 31, 2016, “Forensic -Risk Evaluation” conducted on Dr. Smith by D. Clay Kelly Jr. and Gina Manguno-Mire of the. Tulane University School of Medicine, Department of Psychiatry and Behavioral Sciences. Citing this evaluation, the chancellor found treatment at Pine Grove.was a “suitable, less restrictive alternative” to Whitfield. Dr. Smith acknowledged his discharge from 'Whitfield in his supplemental brief in Smith v. State, 2015-CA-1163-SCT.. Since Dr. Smith is now in.a treatment program at Pine Grove, his requests to be released from Whitfield or be discharged to another treatment facility are now moot.

Conclusion

1113. Because the relief Dr. Smith requests is now moot, no relief can be granted by this Court.

¶14. DISMISSED AS MOOT.

WALLER, C.J., RANDOLPH AND KITCHENS, P JJ., KING, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. COLEMAN, J., NOT PARTICIPATING.

      . In a related appeal, the Court of Appeals held that Mississippi Code Section 41-21-83 plainly states that when a patient is committed to Whitfield, any hearings under Section 41-21-74(4) shall be held in chancery court for the First Judicial District of Hinds County. See Smith v. State, 2015-CA-1471-COA, 229 So.3d 178, 2017 WL 986711 (Miss. Ct. App. March 14, 2017).

      . Section 41-21-99 states:
      The director shall obtain all the available facts relative to the illness of each patient admitted to said treatment facility. The director or a physician on the staff of said treatment facility shall, as often as practicable but not less frequently than every six (6) months, examine the patient and review the records as to the need for continued treatment of each patient and make the results of such examination a part of the patient’s clinical record. The patient shall have the right to request a hearing at least annually, pursuant to Section 41-21-83. The patient shall be advised of his right to request a hearing and of his right to consult an attorney prior to his decision concerning whether or not to request such hearing, and the fact that the patient has been so advised shall be documented in the clinical record.
      Miss. Code Ann. § 41-21-99 (Rev. 2013).


author: GREENLEE, J., GRIFFIS, P.J.,

text:
    Marlon LITTLE, Appellant v. STATE of Mississippi, Appellee
    NO. 2014-KA-01505-COA
    Court of Appeals of Mississippi.
    11/22/2016
    Rehearing Denied March 28, 2017

      OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HIN-CHCLIFF, NICKITA SHANTA BANKS, ATTORNEYS FOR APPELLANT:
    OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLE-BEN, JASON L. DAVIS, BARBARA WAKELAND BYRD, ATTORNEYS FOR APPELLEE:
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
   GREENLEE, J.,

FOR THE COURT:

¶ 1. Marlon Little appeals his convictions for armed robbery and felon in possession of a firearm. At trial, the only substantive evidence presented by the State was the victim’s eyewitness testimony. Little argues that the victim’s initial description of the assailant to police was so inconsistent with Little’s actual physical attributes that the verdict was against the weight of the evidence, requiring reversal. We agree and reverse and remand for a new trial.

FACTS AND PROCEEDINGS BELOW

¶2. On October 31, 2013, nurse practitioner Danny Ellis was robbed at gunpoint shortly after closing his Port Gibson office for the day. Ellis testified that the robber jumped him from behind and wrestled him to the ground. Ellis hit the attacker in the side of the head with his laptop. The robber put his knee in Ellis’s chest and held a pistol to his face, demanding his wallet. The man was wearing a hoodie with the string pulled tight across his chin. The upper portion of the hoodie obscured a portion of the attacker’s face. Ellis had never seen the man before. After the man took Ellis’s wallet and left, Ellis walked to the police station and reported the robbery to Port Gibson’s chief of police, Calvin Jackson. Initially, Ellis described the man who attacked him as a clean-shaven, stocky African American male in his mid-to-late twenties.

¶3. The police received a tip from an informant identifying Little as a suspect. Based on this tip, Jackson, who was familiar with Little, put together a seven-photo lineup on November 4, 2013, to show to Ellis. Ellis identified the man in the fourth photo, Little, as the man who had robbed him. Ellis testified that he recognized Little in part because the attacker had pronounced nasolabial folds. Little was the only person in the photo lineup with pronounced nasolabial folds. Little is forty years old, tall and thin, with gold teeth, and normally wears a goatee. The police did not conduct any investigation other than presenting Ellis with the photo lineup. The gun and the wallet were never recovered.

¶4, Little was indicted in April 2014. The trial was held less than a month later on May 13, 2014. The morning of trial, the court denied a previously filed defense motion for a continuance requesting more time to find Little’s alibi witness. A subpoena for the witness was issued the day before trial. Little’s attorney also argued in the motion to continue that her contact with her client had been limited due to his being committed to a transitional home by his parole officer, and that more time was needed to prepare a defense.

¶ 5. Police Chief Jackson testified for the State, recounting the course of the police investigation. Ellis testified for the State, identifying Little as the person who had robbed him at gunpoint. The defense did not call any witnesses. Several witnesses the defense had intended to call either did not show or could not be found in time for trial.

¶ 6. Little’s motion for a new trial was denied. He appeals.

DISCUSSION

¶7. The sole argument Little makes on direct appeal is that the evidence against him was so minimal and contradictory that his conviction was against the weight of the evidence, requiring reversal. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss. 2005). The Court sits as a “thirteenth juror,” and if it “disagrees with the jury’s resolution of the conflicting testimony,” the proper remedy is to grant a new trial, Id. “[T]he evidence should be weighed in the light most favorable to the verdict.” Id.

¶ 8. The testimony of an uncorroborated witness can be sufficient to sustain a conviction. Renfro v. State, 118 So.3d 560, 565 (¶ 22) (Miss. 2013); Pritchett v. State, 134 So.3d 857, 860-61 (¶ 11) (Miss. Ct. App. 2014) (finding the preponderance of the evidence did not weigh heavily against the jury’s verdict where the victim immediately recognized the defendant in a photographic lineup and had accurately described the defendant’s appearance to a detective prior to being shown the lineup). However, the reliability of an eyewitness identification is lessened when the description initially given to police is inconsistent with the subsequent lineup identification of a defendant. See Williams v. State, 98 So.3d 468, 472 (¶ 16) (Miss. Ct. App. 2012) (the factors used to determine reliability of a lineup identification include the accuracy of a witness’s prior description of the criminal).

¶ 9. In Bush, a victim initially told police that the masked man who|had robbed the convenience store she worked at had a slit above his left eye and that he might have a gold tooth. Bush, 895 So.2d at 841 (¶8). She later identified the defendant, Bush, as the robber, even though Bush did not have a scratch or scar above his left eye and did. not have a gold tooth. Id. The Mississippi Supreme Court stated that “[w]ere this conflicting evidence the only substantive proof the State presented to the jury, perhaps Bush’s argument for a new trial would have merit.” Id. at 845 (¶ 19). However, additional evidence against Bush included the eyewitness testimony of a coconspirator, a purported unrecorded confession Bush made to police, and a security video consistent with the version of events told by the victim, the coconspirator, and Bush in his purported confession. Id.

¶ 10. Similar to the testifying victim in Bush, the victim here gave an initial description of the assailant that was inconsistent with the defendant’s actual physical attributes, including age and build. But unlike in Bush, the State here presented no substantive proof to support Little’s guilt other than the victim’s testimony identifying Little as the assailant. We have here the exact -situation the Mississippi Supreme Court identified as potentially meritorious in Bush.

• ¶ 11. We find, on the facts of this case, that the weight of the evidence preponderates héavily against the verdict where the sole substantive proof presented at trial wá's the testimony of the victim identifying the defendant, and the victim’s initial description of the attacker to the police was inconsistent with) that identification. We therefore reverse and remand for a new trial.

CONCLUSION

¶ 12, Because the' only substantive proof presented at trial of Little’s guilt was the vicitim’s identification of Little, and that identification was inconsistent with the initial description given to police, we find that the verdict was against the weight of the' evidence and that a new trial is warranted. We therefore réverse and remand.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF CLAIBORNE COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAIBORNE COUNTY.

LEE, C.J., IRVING, P.J., BARNES, ISHEE AND CARLTON, JJ„ CONCUR. GRIFFIS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED-BY FAIR AND WILSON, JJ. JAMES, J., NOT PARTICIPATING.

GRIFFIS, P.J.,

DISSENTING:

¶ 14. The majority, sitting as a “thirteenth juror,” has determined that an eyewitness’s testimony is not sufficient evidence to sustain the jury’s verdict to convict Little. The decision to remand could present a unique dilemma for the trial judge. Suppose that on remand, just before a new trial is held, the prosecutor and the defense attorney meet with the trial judge and say: “Your Honor, we have the exact same evidence to offer at this trial as the last. Based on the Court of Appeals’ ruling, if the same evidence results in a guilty verdict, you will be obligated to grant a new trial.” They would be right. This case could be retried until a jury acquits the defendant. Thus, I am puzzled by the majority’s decision to remand the case for a new trial.

¶ 15. Nevertheless, I disagree with the majority’s decision to reverse Little’s conviction. First, I .address the standard of review. Second, I address my analysis.

¶ 16. I disagree with using the “thirteenth juror” rationale in the standard of review. In Hughes v. State, 43 So.3d 526 (Miss. Ct. App. 2010), I joined Judge Larry Roberts’s specially concurring opinion. Judge Roberts, who was a very experienced circuit judge, addressed his concern with “the often-used characterization of an appellate court’s role when reviewing the weight of the evidence—namely our self-assigned role of the ‘thirteenth juror.’ It is a moniker I could not disagree with more.” Id. at 530 (¶ 16) (Roberts, J., specially concurring). Judge Roberts reasoned:

My review of this state’s jurisprudence on the matter shows that the first appearance of “thirteenth juror” used by a Mississippi appellate court in the context ■ of an appellate court’s role in a review of the weight of the evidence was in McQueen v. State, 423 So.2d 800 (Miss. 1982). In McQueen, the Mississippi Supreme Court quoted á lengthy passage from Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982), in which the United States Supreme, Court discussed the procedural consequences and differences between reversing a conviction based upon insufficiency of the evidence and the weight of the evidence. McQueen, 423 So.2d at 803-04 (quoting Tibbs, 457 U.S. at 41-45, 102 S.Ct. 2211). In so doing, the Supreme Court stated that “a reversal based upon the weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Instead, the appellate court sits as a ‘thirteenth juror’ and disagrees with the jury’s resolution of the conflicting testimony.” Tibbs, 457 U.S. at 42, 102 S.Ct. 2211. Post McQueen, the phrase was bounced around in the opinions of the supreme court, and later, this Court, before ultimately settling as a favorable description of an appellate court’s role. But the Supreme Court never used the phrase “thirteenth juror” again.
Nine years after McQueen was handed down, the supreme court again used the phrase. However, this time it was much less favorable and tended to disagree with Tibbs. The supreme court stated: “The appellate court’s role is to see that there is a fair trial given to both sides. We are not result oriented. The supreme court will not be-the thirteenth juror.” Walker v. Graham, 582 So.2d 431, 433 (Miss. 1991). This sentiment was continued over the next several years as “thirteenth juror” was singularly used in a number of dissents in a negative connotation describing the role the dissenting author believed the majority was incorrectly filling. See Crain v. Cleveland Lodge 1532, Order of Moose, Inc., 641 So.2d 1186, 1193 (Miss. 1994) (McRae, J., dissenting); Lloyd Wood Constr. Co., Inc. v. Little, 623 So.2d 968, 974 (Miss. 1993) (McRae, J., dissenting); Stonecipher v. Kornhaus, 623 So.2d 955, 967-68 (Miss. 1993) (McRae, J., dissenting); New Hampshire Ins. Co. v. Sid Smith & Assocs., Inc., 610 So.2d 340, 348 (Miss. 1992) (McRae, J., dissenting); State Highway Comm’n of Miss. v. Hyman, 592 So.2d 952, 958 (Miss. 1991) (McRae, J., dissenting).
Then, in Allen v. State, 749 So.2d 1152, 1159 (¶19) (Miss, Ct. App. 1999), this Court, reciting the standard of review utilized when -reviewing a denial of a motion for a new trial, stated that: “It has been said that on a motion for new trial the trial court sits- as a thirteenth juror. The motion, however, is addressed to the discretion of the trial court.” This language and standard, implying that the trial court is the theoretical “thirteenth juror,” was echoed time and time again.
This all led us to the current use of the term as first pennéd in Bush v. State, 895 So.2d 836 (Miss. 2005). There the supreme court quoted Amiker v. Drugs For Less, Inc., 796 So.2d 942 (Miss. 2000) and stated: “On a motion for a new trial the court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the-power to grant a new trial should be invoked only in exceptional cases' in which the evidence preponderates heavily against the verdict.” Bush, 895 So.2d at 844 (¶ 18). This passage was interpreted for the proposition that “when the trial court (and subsequently the appellate court) reviews a verdict that is alleged to be against the overwhelming weight of the evidence, this presents a distinctive situation which necessitates the court sitting as a “thirteenth juror.” Id. at 844 n.2. The Bush court, labeling itself as a “thirteenth juror,” then resolved the issue of whether Kanynne Jamol Bush’s conviction was supported by the weight of the evidence by beginning its conclusion with “sitting as a limited ‘thirteenth juror’ in this case.” Id. at (¶ 19). But Amiker simply does not mandate or otherwise suggest that it is proper for an appellate court to sit, review the evidence, and make a judgment call of credibility and other matters germane to the role of a juror. In Amiker, the central issue was whether a successor judge could vacate his predecessor’s order granting a new trial. Amiker, 796 So.2d at 946 (¶ 8). In arriving at the conclusion, the supreme court in Amiker stated:
It has long been recognized that the trial judge is in the best position to view the trial. “The trial judge who hears the witnesses live, observes their demeanor and in general smells the smoke of the battle is by his very position far better equipped to make findings of fact which will have the reliability that we need and desire.” Gavin v. State, 473 So.2d 952, 955 (Miss. 1985). Using a cold, printed record of a case, if that, a successor judge sits in an inferior position to the judge who presided over the trial of the case.
Id. at 947 (¶ 16). Further, it was identified that:
If we allowed a successor judge to change a decision granting a new trial, we would invest power in one in no better position than this Court to do what this Court does not do. This Court justifiably refuses to review grants of a new trial based in part on the superior position of the trial court to decide such matters. Dorr v. Watson, 28 Miss. 383, 395, 6 Cushm. 383 (1854) (“The granting [of] a new trial rests in a great measure upon the sound discretion of the court below, to be exercised under all the circumstances of the case with reference to settled legal rules as well as the justice of the particular case. If a new trial be refused, a strong case must be shown to authorize the appellate court to say that it was error; and so, if it be granted, it must be manifest that it was improperly granted.”). See also Rayner v. Lindsey, 243 Miss. 824, 832-33, 138 So.2d 902, 905-06 (1962). Surely, a successor trial judge is in no better position than this Court.
Id. at 948 (¶21). I do not find these pronouncements can form the basis for the establishment of an appellate court as a “thirteenth juror” when reviewing the denials of motions for a new trial as surmised in Bush and utilized in the litany of cases following it (including cases from this Court—some even authored by myself). In fact, Amiker successfully pleads the case for the alternative and only reestablishes that it is the trial court alone that can fill the role of “thirteenth juror.”
The role of an appellate court when reviewing the denial of a motion for a new trial is, simply stated, to determine whether the trial court abused its discretion in doing so, Sheffield v. State, 749 So.2d 123, 127 (¶ 16) (Miss. 1999). This is so for the exact reasons expounded in Amiker. It is the trial judge who sits and observes the evidence and witnesses’ demeanor throughout the trial; who hears the witnesses’ testimonies; and who, ultimately, is the closest thing a trial has to a “thirteenth juror.” That title and point of view are simply inappropriate for an appellate court armed only with “a cold, printed record of a case.”
My last point goes to the realistic ramifications of a reversal by an appellate court of a trial court’s denial of a motion for a new trial. As touched upon in Justice White’s dissent in Tibbs, given an appellate court’s reversal on the weight of the evidence, “the defendant has already demonstrated that a conviction based on the State’s case, as so far developed, is ‘against the weight of the evidence.’” Tibbs, 457 U.S. at 50, 102 S.Ct. 2211 (White, J., dissenting). Therefore, the State and trial court are put in a precarious situation on remand. Assuming the State chooses to prosecute again, with no better or worse evidence at its disposal, and the defense does not make any substantive changes in its presentation of evidence or trial strategy, and the same result occurs, by the “rule of the case,” the trial court is all but required to grant a second new trial. If not, when the defendant appeals his conviction arguing that the weight of the evidence is not sufficient and, of course, cites the reversal of his previous conviction as authority, an appellate court would similarly have no choice but to reverse and remand once more or be guilty of intellectual dishonesty.
The majority in Tibbs argues otherwise stating in response to Justice White’s dissent that:
Although reversal of a first conviction based on sharply conflicting testimony may serve the interests of justice, reversal of a second conviction based on the same evidence may not. While the interests of justice may require an appellate court to sit once as a thirteenth juror, that standard does not compel the court to repeat the role.
Tibbs, 457 U.S. at 43 n.18, 102 S.Ct. 2211. However, in my opinion, this line of reasoning does nothing more than muddle and dilute the standard of review that an appellate court must apply. If there have been no substantive changes from one trial to the next and the same outcome is reached by a second jury, a failure on an appellate court’s part to, once again, remand the case for a new trial can be viewed as nothing more than arbitrary and capricious. Quite clearly, all other things equal, if the weight of the evidence would not support a finding of guilt after the first conviction, the same evidence, when presented during subsequent trials, must still be deemed inadequate to support a conviction. Contrary to the statement quoted from Tibbs above, our role as an appellate court does not change.
Therefore, I respectfully suggest to the members of our appellate judiciary that we are not, and can never be, the hypothetical “thirteenth juror.” The closest judicial entity identifiable as a possible “thirteenth juror” must be the trial judge. When we review a claim on appeal that the verdict is contrary to the weight of the evidence, we simply determine based upon the cold record whether the trial judge abused his discretion. Nothing more, nothing less.

Hughes, 43 So.3d at 530-33 (¶¶ 17-25) (Roberts, J., specially concurring).

¶ 17. If these are the correct criteria to review a motion for a new trial, we should ask why the “thirteenth juror” analysis is not also part of the standard of review in civil cases. For example, in White v. Yellow Freight System, Inc., 905 So.2d 506, 510-11 (¶7) (Miss. 2004), the supreme court considered a motion for a new trial and did not include a “thirteenth juror” discussion:

A motion for a new trial falls within a lower standard of review than does that of a judgment notwithstanding the ver-diet or a directed verdict. [Janssen Pharmaceutica, Inc. v. Bailey, 878 So.2d 31, 55 (Miss. 2004)]. Rule 59 of the Mississippi Rules of Civil Procedure authorizes the trial judge to set aside a jury verdict as to any or all parts of the issues tried and to grant a new trial whenever .,. justice requires. M.R.C.P. 59 cmt. The grant or denial of a motion for a new trial is a matter within the trial court’s sound discretion. Green vGrant, 641 So.2d 1203, 1207 (Miss. 1994). A new .trial may be granted in a number of circumstances, such as when the verdict is against the substantial or overwhelming weight of the evidence. Shields v. Easterling, 676 So.2d 293, 298 (Miss. 1996); see also URCCC 10.05(2)[.] On appeal, this Court may reverse the granting of a new trial only when the trial court has abused its discretion. Green, 641 So.2d at 1207. The existence of trial court discretion, as a matter of law and logic, necessarily implies that there are at least two differing actions, neither of which if taken by the trial judge will result in reversal. Shields, 676 So.2d at 298. In reviewing the trial court’s decision, an appellate court must consider the credible' evidence in the light most favorable to the nOn-moving party and generally take the credible evidence supporting the' claims or defenses of the non-moving party as true. Green, 641 So.2d at 1207. When the evidence is so viewed, this Court will reverse only when, upon, review of the entire record, we are.'left with a firm and definite conviction that the verdict, if allowed to stand, would work a miscarriage of justice. Id. at 1207-08.

¶ 18. When we review this case on an abuse-of-discretion standard, I find that the eyewitness’s testimony was sufficient. I do. not find the verdict to be so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Bush, 895 So.2d at 844 (¶ 18). I would affirm Little’s conviction. For these reasons, I dissent.

FAIR AND WILSON, JJ., JOIN THIS OPINION.

      . In January 2014, the grand jury initially no-billed the charges.

      . The brief filed by Little’s attorney notes that several arguments, such as ineffective assistance of counsel, would be best preserved for postconviction-relief review in the event that Little's conviction were affirmed on direct appeal. Little filed a supplemental pro se brief raising multiple issues (including an alibi defense), all of which would not be appropriate for review on direct appeal.


author: CARLTON, J.,

text:
    Nathaniel MCKEITHAN a/k/a Nathaniel Sabir McKeithan a/k/a Nathan McKeithan, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01711-COA
    Court of Appeals of Mississippi.
    01/09/2018

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

FOR THE COURT:

¶ 1. A Noxubee County grand jury indicted Nathaniel McKeithan for Count I, the'burglary of a dwelling; Count II, the armed robbery of Charles Barge; and Count III, the armed' robbery of Inez Barge. See Miss. Code Ann. §§ 97-3-79 & 97-17-23 (Rev. 2014). A jury convicted McKeithan of all three counts. On appeal, McKeithan raises the following issues: (1) whether insufficient evidence existed to support the verdict as to Count III; and (2) whether the circuit court abused its discretion by refusing proposed jury instruction D-8.

¶ 2. Finding no error, we affirm McKeithan’s convictions and sentences.

FACTS

¶ 3. A little before noon on June 12, 2015, Charles arrived at his home in Macon, Mississippi, to eat lunch with his wife, Inez. As Charles walked from his car toward his house, a man who Charles later identified as McKeithan approached and asked for directions to Central Academy and Noxubee High School. After Charles provided the directions to the two schools, McKeithan walked away on foot.

¶4. Inez had been diagnosed with Alzheimer’s disease several years earlier, and she had a caretaker who stayed with her during the day. Upon entering his home, Charles asked whether McKeithan had knocked on the door, but Inez’s caretaker replied that he had not. After eating lunch with his wife, Charles returned to work.

¶5. Charles and Inez’s neighbor, Kimberly Dziewit, testified that she was also home for lunch on June 12, 2015. As Dziewit prepared to return to work around 12:30 p.m., someone knocked on her door. At trial, Dziewit identified the man as McKeithan. She testified that McKeithan asked her for directions to Noxubee High School and Central Academy and that he never mentioned he had just asked Charles for the same directions. Dziewit stated that McKeithan told her that he was looking for work at the schools, which Dziewit thought unusual since the schools were closed for summer. Dziewit inquired about McKeithan’s vehicle, and she testified that he pointed to a silver four-door car with a maroon quarter panel that was in a nearby parking lot. After Dziewit gave McKeithan the directions, he left, and she returned to work.

¶ 6. Around 7 p.m. that same evening, Charles and Inez met their son and daughter-in-law, David and Yvonne Barge, for dinner. Charles and Inez then returned home for a short time before leaving again around 9 p.m. to get milkshakes. When they returned home with them milkshakes, Charles unlocked the house door and allowed Inez to enter first. As Charles followed Inez into the house, two men grabbed the couple from behind and pushed them onto their living-room couch. Charles testified that he could not identify the assailants because they wore hoods that covered their faces. Although the assailants threw an afghan over Charles’s and Inez’s heads, Charles testified he could still see because the afghan was knitted and had holes in it.

¶ 7. One of the assailants grabbed Charles’s wallet from his pocket and asked for the personal identification number (PIN) associated with Charles’s debit card. Charles gave the man an incorrect PIN. The assailant accused Charles of lying, and he hit Charles in the face several times. The blows broke Charles’s glasses and gave him á black eye. Each time the assailant asked for the PIN, Charles responded with the same incorrect number. During the burglary, the assailant picked up Charles’s air rifle, which was next to the living-room couch, and he held it to Charles’s head. Although Charles knew the air rifle was not loaded, he feared the man might cause serious bodily harm to him or Inez by hitting them with the air rifle. After about ten to fifteen minutes, the assailants left the house. Charles testified that, in addition to his debit card, the men stole his air rifle, his phone, about $200 from Inez’s purse, and at least $32,000 in jewelry, some- of which they took directly from Inez’s person.

¶8. After the assailants fled, Charles checked on Inez and locked the door to their home. According to Charles, Inez was not herself for several days after the armed robbery and burglary. Charles testified that, despite her Alzheimer’s disease, Inez was upset and confused and that she had been afraid during the home invasion that something bad would happen to them.

119. After ensuring their safety following the armed robbery and burglary, Charles called his son, David. David then reported the crime to the police, who received the call around 9:42 p.m. Chief Lucious Mason of the Macon City Police,Department testified that he personally observed the Barges after the home invasion. According to Chief Mason, the Barges both appeared to be in shock, and he recalled that they described being in fear of death or serious bodily injury during the incident.

¶ 10. Between 9:43 p.m. and 9:45 p.m., just minutes after the police received the call about the home invasion, the surveillance video at Bank First in Macon, Mississippi, captured McKeithan’s attempts to use Charles’s stolen debit card at an ATM. The surveillance video, which the State played at trial, showed McKeithan in the driver’s seat of a vehicle as he made several attempts to withdraw money from the ATM. Although the video failed to clearly show the vehicle’s passenger seat, trial testimony established that movement could be seen from that side of the vehicle.

¶ 11. That same night, around 10:30 p.m., McKeithan again attempted to use Charles’s stolen debit card. This time McKeithan attempted to prepay for $10 worth of gas at Sam’s G&G, a convenience store in Shuqualak, Mississippi. The store owner, Sammy Lindsey, swiped the debit card McKeithan handed him, but after McKeithan entered an invalid PIN, Lindsey noticed the debit card belonged to Charles. Lindsey knew Charles since his father and-Charles were long-time friends and coworkers. Upon realizing the debit card belonged to Charles, fhndsey refused to return the card to McKeithan, and he asked how McKeithan had acquired the debit card. Lindsey testified that McKeith-an acted nervous-and stated that a man outside the convenience store had given him the debit card. However, Lindsey never saw the man to whom McKeithan referred. After Lindsey repeatedly refused to return the debit card, McKeithan left the convenience store. Lindsey then called his father, who contacted Charles about the debit card.

1Í 12. From the surveillance videos at the bank and the convenience store, the police developed McKeithan as a suspect in the armed robbery and burglary. Officers arrested McKeithan the day after the crime. At the same time they arrested McKeith-an, the officers seized a silver car with a maroon quarter panel. Charles later identified McKeithan as the man who asked him for directions when he came home for lunch on June 12, 2015.

¶ 13. McKeithan testified at trial in his own defense. He admitted that the silver car with the maroon quarter panel the police seized belonged to him. However, McKeithan denied being near either the Barges’ or Dziewit’s home around lunch on June 12, 2015, and he denied asking either ■ Charles or Dziewit for directions,; McKeithan also denied that he committed, the armed robbery and burglary.

¶ 14. According to McKeithan, he was in Shuqualak almost all day on June 12, 2015. Around 9 p.m. on June 12, 2015, McKeith-an testified that he drove to the Sanco Food Mart to buy cigarettes. As he exited his car to walk into the food mart, McKeithan testified that a “crackhead” approached him. McKeithan stated that the man offered to sell him Charles’s stolen debit card. McKeithan 'told the man that he did not have. any cash. Instead, McKeithan gave the man some marijuana in exchange for the debit card. McKeithan testified that he immediately drove to Bank First to use the debit card and PIN the man had given him. After .several unsuccessful attempts to withdraw money from Bank First’s ATM, McKeithan drove to Sam’s G&G to use the debit card there. However, McKeithan testified that the PIN the “crackhead” had given him again failed to work at the convenience store, and then Lindsey refused to return the debit card to him. After leaving the convenience store, McKeithan stated that he drove to another store called the Beehive, where he stayed for several hours before returning home.

¶ 15. After considering the evidence and testimony, the jury found McKeithan guilty of all three counts charged in his indictment. On September 23, 2016, the circuit court sentenced McKeithan to twenty years for the house-burglary conviction and to twenty-six years for each of the two armed-robbery convictions, with each sentence to be served in the custody of the Mississippi Department of Corrections, and with the sentences to- run consecutively to one another and to any other sentence McKeithan might receive in a cause pending in federal district court. McKeithan filed an unsuccessful motion for a new trial or, in the alternative, a judgment notwithstanding the verdict. Aggrieved, McKeithan appeals.

DISCUSSION

I. Sufficiency of the Evidence

¶ 16. McKeithan argues the circuit court erred by denying his posttrial motion as to Count III of the indictment because insufficient evidence existed to-prove that he committed armed robbery against Inez. Specifically, McKeithan. asserts the State failed to present any evidence or testimony to show “that Inez was put in fear of immediate injury by [the exhibition of] a deadly weapon.” Because McKeithan claims the State failed to prove this essential element of armed robbery beyond a reasonable doubt, he asks this Court to reverse his conviction as to Count III.

¶17. When considering the legal 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.” Nolan v. State, 61 So.3d 887, 893 (¶24) (Miss. 2011) (citation omitted). Sufficient evidence supports the verdict if, “bearing in mind the reasonable-doubt standard, reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions, on every element of the offense.” Id. (citation and internal quotation marks omitted).

¶ 18. To prove Count III of McKeithan’s indictment, the State was required to show beyond a reasonable doubt that McKeithan “feloniously [took] or attempt[ed] to take from the person or from the presence the, personal property of [Inez] and against [her] will by violence to [her] person or by putting [her] in fear of immediate injury to [her] person by the exhibition of a deadly weapon .... ” Miss. Code Ann. ,§ 97-3-79.

¶ 19. On appeal, McKeithan raises no dispute as to his convictions ■ for house burglary and armed robbery against Charles. As previously stated, he onfy disputes the legal sufficiency of the evidence supporting his conviction for armed robbery against Inez. McKeithan acknowledges that the Mississippi Supreme Court has held that “a victim is not required to have ‘definite knowledge’ of a deadly weapon in the sense that the weapon must' actually be seen by the victim’s own eyes.” Dambrell v. State, 903 So.2d 681, 683 (¶ 6) (Miss. 2006). Rather, as the Dambrell court explained, “when a defendant makes an overt act and a reasonable person would believe that a deadly weapon is present, there is no requirement that a victim must actually see the deadly weapon in order to convict pursuant to [section] 97-3-79.” Dambrell, 903 So.2d at 683 (¶ 6). Even in light of the Dambrell holding, McKeithan argues the State failed to prove that Inez was ever placed in fear of immediate injury to her person due to the exhibition of a deadly weapon.

¶20. No dispute exists that two assailants forcefully entered the Barges’ home on June 12, 2015, and stole personal property, including jewelry taken directly from Inez’s person. Inez’s Alzheimer’s disease prevented her from providing a statement to police or testifying at trial. However, Charles testified about the home invasion and'his wife’s reaction .to the crime. Although the assailants threw an afghan over Charles’s and Inez’s heads, Charles testified .that it was still possible to see what occurred because the afghan was knitted and had holes in it. Charles further testified that, at one point during the home invasion, one of the assailants picked up an air rifle next to the living-room couch and held the air rifle to Charles’s head. According to Charles, this occurred after the assailant had already threatened Charles, hitting him several times in the face and breaking, his .glasses, Charles also stated that, even though the air rifle was unloaded, he .feared the assailant would cause him or Inez bodily injury by hitting them with the air rifle.

¶ 21. In talking with and observing Inez after the crime occurred, Charles testified that his wife was not herself and was upset and confused. In addition, Charles stated, he could tell that Inez had been afraid during the burglary and armed robbery that something bad would happen to her and Charles. The State also presented testimony from Chief Mason, who observed the Barges, after the home invasion. Chief Mason stated that the Barges both appeared to be in. shock when the police arrived at their home following the crime. Chief Mason also recalled that, while being interviewed by one of his officers, the Barges described being in fear of death or serious bodily injury during the incident.

¶22. Considering the evidence in the light most favorable to the verdict, we find the State presented sufficient evidence for the jury to find McKeithan guilty of armed robbery against Inez beyond a reasonable doubt. See Nolan, 61 So.3d at 893 (¶ 24). We therefore find this issue lacks merit.

II. Proposed Jury Instruction D-8

¶23. McKeithan next challenges the circuit court’s refusal of proposed jury instruction D-8. This Court reviews the grant or denial of jury instructions for abuse of discretion. Williams v. State, 222 So.3d 1066, 1070 (¶ 13) (Miss. Ct. App. 2017). In so doing, we acknowledge the following:

Jury instructions must be read as a whole to determine if the instructions were proper. Jury instructions must fairly announce the law of the case and not create an injustice against the defendant. ... In other words, if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law, no error results.

Davis v. State, 18 So.3d 842, 847 (¶ 14) (Miss. 2009) (internal citations and quotation marks omitted).

¶ 24. The circuit court refused McKeith-an’s proposed jury instruction D-8 as repetitive. The proposed instruction defined a deadly weapon and stated:

It is a question of fact for the [j]ury to determine whether the air rifle claimed to have been used by Nathaniel McKeithan was a deadly weapon in the manner claimed to have been used in this case.
A deadly weapon may be defined as any object, article^] or means [that], when used as a weapon[,] is, under the existing circumstances, reasonably capable or likely to produce death or serious bodily harm to a human being upon whom the object, article^] or means is used as a weapon.

¶ 25. In Williams v. State, 134 So.3d 732, 737 (¶ 18) (Miss. 2014), the defendant appealed his armed-robbery conviction and challenged the circuit court’s failure to grant an almost identical jury instruction to McKeithan’s proposed instruction D-8. The Williams court acknowledged “that this type [of] instruction better informs the jury that the question as to whether a particular instrument constitutes a deadly weapon lies with the jury.” Id. at 737 (¶ 19). However, the Williams court found no error in the circuit court’s refusal of the instruction since thé circuit court properly instructed the jury on each element of armed robbery. Id.

¶26. Like the Williams court, we find that the circuit court here properly instructed the jury on each element of the armed-robbery charges against McKeith-an. Compare id. at (¶¶ 17-19). The circuit court granted jury instruction S-3A, which provided:

The [c]ourt instructs the Q]ury that Nathaniel McKeithan is charged in [Count III] with the [a]rmed [r]obbery of [Charles] Barge.
If you find beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence from the evidence in this case that:
1. On or about June 12, 2015, in Nox-ubee County;
2. Nathaniel McKeithan unlawfully took, from the person or presence of [Charles] Barge, a Gamo Air Rifle, Samsung Galaxy phone, [j]ewelry, a Bank First credit card[,] and [$65], against his will and intending to permanently deprive [Charles] Barge of the personal property and money;
3. By exhibiting a deadly weapon to put [Charles] Barge in fear of immediate injury to himself or another person,
then you shall find Nathaniel McKeithan guilty of the armed robbery of [Charles] Barge.
If the State did not prove any of the above listed elements beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence, then you shall find Nathaniel McKeithan not guilty of the armed robbery of [Charles] Barge.

Jury instruction S-4A provided substantially the same instruction to the jury as to Count III of the indictment regarding the armed robbery of Inez.

¶ 27. In addition to finding that the circuit court sufficiently instructed the jury as to each element of armed robbery, we also recognize that jury instruction S-5 provided the jury with a legal definition of a deadly weapon. Instruction S-5 stated “that ‘deadly weapon’ means an object, article, or means [that], when used as a weapon under the existing circumstances[,] is reasonably capable or likely to produce death or serious bodily harm to another person.” Jury instruction S-ll then informed the jurors that “the crime of [a]rmed [r]obbery is distinguished from the crime of [r]obbery by the exhibition of a deadly weapon.” Finally, jury instruction C.01 instructed the jurors that they were “the sole judges of the facts in this case.”

¶28. Thus, upon reading the jury instructions as a whole, we find that proposed jury instruction D-8 was fairly covered elsewhere in the instructions and that the jury instructions fairly and accurately announced the rules of law applicable to this case. See Davis, 18 So.3d at 847 (¶ 14). We therefore find no abuse of discretion in the circuit court’s refusal of proposed jury instruction D-8.

¶ 29. Because we find no error, we affirm McKeithan’s convictions and sentences.

¶ 30. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      . Due to her Alzheimer's disease, Inez neither provided a statement to police after the crime nor testified at McKeithan’s trial.

      . Marsha King, Bank First’s vice president and bank manager, testified that the ATM surveillance video ran about four to six minutes ahead of the actual time. Thus, while the timestamp on the footage from the surveillance video showed McKeithan trying to withdraw money at 9:49 p.m.,' King testified that the attempted transaction actually occurred four to six minutes earlier between 9:43 p.m. and 9:45 p.m.

      . In November 2009, the United States District Court for the Southern District of Mississippi entered a judgment against McKeithan for armed bank robbery.

      . This Court has previously affirmed the legal sufficiency, of the evidence supporting an armed-robbery conviction where, the victims testified that the defendants placed them in fear during the crime by holding them at gunpoint. See Johnson v. State, 81 So.3d 300, 304-05 (¶¶ 9-12) (Miss. Ct. App. 2012); Hughes v. State, 43 So.3d 526, 528-29 (¶¶ 8-11) (Miss. Ct. App. 2010); Francis v. State, 791 So.2d 904, 906-08 (¶¶2, 9) (Miss. Ct. App. 2001); Grihim v. State, 760 So.2d 865, 867 (¶ 7) (Miss. Ct. App. 2000).