author: DICKINSON, PRESIDING JUSTICE,

text:
    WATKINS DEVELOPMENT, LLC and David Watkins, Sr. v. C. Delbert HOSEMANN, Jr., in his official capacity as Mississippi Secretary of State
    NO. 2014-CT-01657-SCT
    Supreme Court of Mississippi.
    03/02/2017

      ATTORNEY FOR APPELLANTS: J. BRAD PIGOTT
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: DOUGLAS T. MIRACLE, JAMES W. SMITH, JR., JAMES ASHLEY OGDEN, TYLER ARTHUR ROYALS
   ON WRIT OF CERTIORARI

DICKINSON, PRESIDING JUSTICE,

FOR THE COURT:

¶ 1. The Mississippi Secretary of State found that David Watkins and Watkins Development, LLC, committed four securities-fraud violations in connection with revenue bonds sold to finance a renovation project at the Metrocenter mall in Jackson. Watkins appealed and the chancery court vacated one count but affirmed the other three. The Court of Appeals then affirmed the Secretary on all four counts.

¶ 2. We granted certiorari and now reverse the Court of Appeals in part because the Secretary failed to cross-appeal the chancellor’s decision to vacate Count I. That said, we affirm, as did the chancellor and Court of Appeals, the Secretary’s findings on the other three counts.

FACTS AND PROCEDURAL HISTORY

¶3. David Watkins agreed to renovate the Belk building at the Metrocenter Mall into office space for the City of Jackson. In August 2010, Watkins formed Retro Metro, LLC, to run the Metrocenter project. On February 21, 2011, Retro Metro entered into an agreement with David Watkins Development, LLC—Watkins’s development company—which provided that Retro Metro would pay Watkins Development a flat fee of $500,000 and a mobilization fee of 25% of the Metrocenter project cost.

¶ 4. To finance the project, the Mississippi Business Finance Corporation (MBFC) had bond counsel prepare a private placement memorandum (“PPM”). On April 5, 2011, MBFC issued taxable revenue bonds pursuant to the PPM to finance the project. Duncan Williams, an investment banking firm, purchased all the bonds. The MBFC placed $4,875,000 in proceeds in a construction account with Bankplus under a trust indenture. Retro Metro .entered a loan agreement with the MBFC which loaned Retro Metro the proceeds to finance the Metrocenter project.

¶ 5. The PPM, which Watkins helped to prepare, represented that the bond proceeds would'be used to finance the Metro-center project. Similar language appeared in the loan agreement and in the bond purchase contract. The documents also represented that Watkins had disclosed all related financial agreements. But the development agreement between Retro Metro and Watkins Development was not disclosed, and the PPM did not disclose that any portion of the bond proceeds would be diverted to another project.

¶ 6. Work proceeded on the project and, by June 2, 2011, Retro Metro had made three requisitions from the construction account. Each requisition stated the funds were withdrawn to pay construction costs. The requisitions never referenced any debt owed to Watkins Development.

¶7. On June 8, 2011, six days after receiving $800,000 from the construction account, Watkins wired $587,084.34 from Retro Metro’s checking account to a real estate attorney in Meridian. This was related to a contract between the City of Meridian and Meridian Law Enforcement Center, LLC, which Watkins had formed in April 2011 to renovate an existing property into a police station. The funds were used to purchase the real estate for the Meridian police station.

¶ 8. Later, in April 2012 after Watkins had defaulted on a payment under the loan agreement, the Secretary of State’s office initiated administrative procedures against Watkins which culminated in a finding that Watkins had committed four violations of Mississippi Code Section 75-71-501.

¶ 9. First, the Secretary found that Watkins had violated Section 75-71-501(2) when he had failed to disclose the development agreement between Retro Metro and Watkins Development in the PPM or loan agreement (“Count I”). Second, the Secretary found that Watkins had violated Section 75-71-501(1) when he had failed to disclose in the PPM, loan documents, or requisition requests, that bond proceeds would be used for the Meridian project (“Count II”). Third, the Secretary found that the same conduct giving rise to Count II also violated Section 75-71-501(2) (“Count III”). Finally, the Secretary found that Watkins had violated Section 75-71-501(3) when he had used the bond proceeds to purchase the Meridian property (“Count IV”). The Secretary imposed a $25,000 fine for each of Counts I, III, and TV, but no fine for Count II. The Secretary also ordered Watkins to repay the $587,084.34 plus interest, and $18,047.39 toward the costs of the administrative proceeding.

¶ 10. Watkins appealed to the Chancery Court for the First Judicial District of Hinds County, which vacated Count I but affirmed Counts II, III, and IV. Watkins then appealed the chancellor’s decision, and we assigned the case to the Court of Appeals. The Secretary did not cross-appeal the chancellor’s ruling on Count I. The Court of Appeals affirmed the Secretary and the chancellor on Counts II, III, and IV. The Court of Appeals reversed the chancellor’s decision on Count I and affirmed the Secretary on that Count, even though that issue was not appealed. Watkins then filed a petition for writ of certio-rari, which we granted.

ANALYSIS

I. The Court of Appeals erred by addressing a portion of the chancellor’s order that the Secretary failed to cross-appeal.

¶ 11. The chancellor reversed the Secretary’s finding under Count I, that Watkins had violated Section 75-71-501(2) when he had failed to disclose the development agreement between Retro Metro and Watkins Development in the PPM and loan agreement, and the Secretary did not raise that issue on appeal. Watkins argues that the Court of Appeals erred by addressing that issue, and by reversing the chancellor’s decision. We agree.

¶ 12. Watkins’s notice of appeal specifically stated that he appealed the chancellor’s decision “to the extent that such Opinion and Order affirms and does not reverse the Final Order entered against such Petitioners by the Respondent Secretary of State.” The Secretary filed no cross-appeal. Then, in his brief before the Court of Appeals, the Secretary stated “[t]he Secretary did not appeal the Chancellor’s findings with respect to the Development Agreement and thus, the issue is moot for purposes of this appeal.” Even in his response to the petition for certiorari, the Secretary “takes no position” as to whether the Court of Appeals properly raised this issue sua sponte.

¶ 13. In Dunn v. Dunn, this Court held that “an appellee should not be required to file a cross-appeal unless he or she is aggrieved by the trial court’s judgment.” There, we quoted a Court of Appeals decision stating “that ‘[i]n order for the appel-lee to gain reversal of any part of the decision of a trial court about which the appellant brings no complaint, the appellee is required to file a cross-appeal.’” We also noted a Michigan Court of Appeals decision which “held, ‘[generally, the failure to file a cross appeal precludes the appellee from raising an issue not raised by appellant.’”

¶ 14. Here, under Dunn, the Court of Appeals erred by addressing the portion of the chancellor’s ruling that was not appealed. So we reverse the Court of Appeals’s ruling as to Count I, and reinstate the chancellor’s decision reversing the Secretary’s finding on that count.

II. The Secretary’s other findings were supported by substantial evidence.

¶ 15. When we review a “ ‘decision by a chancery or circuit court concerning an agency action, [we apply] the same standard of review that the lower courts are bound to follow.’” We may reverse the Secretary’s decision “only if it ‘(1) was unsupported by substantial evidence; (2) was arbitrary and capricious; (3) was beyond the power of the administrative agency to make; or (4) violated the complaining party’s statutory or constitutional right.’” Further, the Secretary’s factual findings, “if supported by competent material and substantial evidence, are conclusive.” That said, as always, we review questions of statutory interpretation de novo.

¶ 16. Mississippi Code Section 75-71-501 states:

It is unlawful for a person, in connection with the offer, sale, or purchase of a security, directly or indirectly:
(1) To employ a device, scheme, or artifice to defraud;
(2) To make an untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; or
(3) To engage in an act, practice, or course of business that operates or would operate as a fraud or deceit upon another person.

Section 75-51-501’s three subsections set forth distinct acts that constitute securities fraud. All three, however, are subject to the overarching requirement that they occur “in connection with the offer, sale, or purchase of a security.” This Court has not had occasion to expound on the “in connection with” requirement. But, in Harrington v. Office of the Mississippi Secretary of State, we recognized that we will look to federal cases interpreting similarly worded federal securities statutes for guidance.

¶ 17. The United States Supreme Court’s decision in Securities and Exchange Commission v. Zanford provides a thorough discussion of the “in connection with” requirement. There, the SEC alleged “that a stockbroker violated both § 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, as amended, 15 U.S.C. § 78j(b), and the SEC’s Rule 10b-5, by selling his customer’s securities and using the proceeds for his own benefit without the customer’s knowledge or consent.” In the appeal from a federal district court’s grant of summary judgment, the United States Supreme Court considered “whether the alleged fraudulent conduct was ⅛ connection with the purchase or sale of any security within the meaning of the statute and the Rule.”

¶ 18. There, Charles Zanford, a securities broker, persuaded William Wood to open an investment account for himself and his daughter, and to grant Zanford discretion to manage the account and conduct securities transactions without prior approval. On twenty-five separate occasions, Zanford diverted funds from the account for his own use.

¶ 19. The federal statute in question made “it ‘unlawful for any person ... [t]o use or employ, in connection with the purchase or sale of any security ..., any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [SEC] may prescribe.’” On appeal, the Supreme Court’s analysis focused on whether Zan-ford’s conduct had “the requisite ‘connection with’ the purchase or sale of a security.”

¶ 20. The SEC argued that Zanford “engaged in a fraudulent scheme in which he made sales of his customer’s securities for his own benefit.” But, Zanford argued, “the sales themselves were perfectly lawful and ... the subsequent misappropriation of the proceeds, though fraudulent, is not properly viewed as having the requisite connection with the sales.”

¶21. The Supreme Court agreed with the SEC. In doing so, the Court explained “each sale was made to further respondent’s fraudulent scheme; each was deceptive because it was neither authorized by, nor disclosed to, the Woods.” The crux of the issue, as the Supreme Court saw it, was that “the scheme to defraud and the sale of securities coincide.” And the Court noted, “[t]his is not a case in which, after a lawful transaction had been consummated, a broker decided to steal the proceeds and did so. ... Rather, respondent’s fraud coincided with the sales themselves.” The Court noted, however, that “[t]he fact that respondent misappropriated the proceeds of the sales provides persuasive evidence that he had violated § 10(b) when he made the sales.”

¶22. We find this analysis instructive for our similarly worded statute. To find any violation of Section 75-51-501, the factfinder must first determine that the alleged fraud occurred “in connection with the offer, sale, or purchase of a security.” An alleged fraud occurs “in connection with the offer, sale, or purchase of a security” if the fraud and the offer, sale, or purchase coincide. A lawful securities transaction followed by the misappropriation of the funds accrued therefrom is not enough because this statute addresses only frauds related to the offer, sale, or purchase itself. That said, the later misappropriation of funds may serve as circumstantial—though not dispositive—evidence that the misappropriation occurred as part of a larger fraudulent scheme relating to the offer, sale, or purchase.

¶ 23. Watkins argues his acts were not “in connection with the offer, sale, or purchase of’ the bonds at issue in this case. Counts II and III concern the Secretary’s' finding • that Watkins represented that all the bond proceeds would be used to finance the Metrocenter project and/or failed to disclose that some of the bond proceeds would be used on the Meridian project in the PPM, loan agreement, and requisitions. If these acts constitute fraud under Section 75-51-501—which we discuss below—substantial evidence supports the Secretary’s finding that those acts occurred in connection with the bond sale, because Watkins was instrumental in preparing the PPM to obtain the bond sale, he was a party—as manager of Retro Metro—to the bond-purchase contract, and he was a party to the loan agreement to access the proceeds from that sale.

¶ 24. Count IV concerns the Secretary’s finding that Watkins actually misappropriated the bond proceeds by using them to purchase property for the Meridian project. If this count stood alone, Watkins would be correct to argue that it is not “in connection with” the bond sale. As the United States Supreme Court recognized in Zandford, misappropriating funds obtained through a lawful securities sale is not a fraud in connection with the sale.

¶25. But here, according to the Secretary’s findings, the alleged misappropriation does not stand alone. As noted above, a later misappropriation may evince a larger fraudulent scheme relating to the sale itself. We find substantial evidence supporting the Secretary’s finding that Watkins’s alleged misappropriation was inextricably tied to his alleged misrepresentations in the PPM, bond-purchase contract, and loan agreement. This satisfies the “in connection with” requirement for the misappropriation count as well, because the alleged misappropriation will constitute part of a larger fraudulent scheme that connects to the sale,

¶ 26. In Count II, the Secretary found that Watkins “employed] a device, scheme, or artifice to defraud” by representing that the bond proceeds would be used for the Metrocenter project, and by failing to disclose that some of the proceeds would be used for the Meridian project. In Harrington, we quoted with approval the United States Supreme Court’s conclusion that the word “employ” in subsection (1) requires proof that one act with the specific intent to defraud. A device is “[a] scheme to trick or deceive; a stratagem or artifice.” A scheme is “[a]n artful plot or plan, usu. to deceive others.” And an artifice is “[a] clever plan or idea, esp. one intended to deceive.”

¶ 27. In Count III, the Secretary found that Watkins “ma[d]e an untrue statement of a material fact” by representing that the bond proceeds would used for the Metro-center project, and he omitted a material fact by failing to disclose that some of the proceeds would be used for the Meridian project. In Harrington, we found that “Sections 17(a)(2) and (a)(3) of the federal Securities Act are identical to Mississippi Code Sections 75-71-501(2) and (3)” and “[tjhose subsections are ‘devoid of any suggestion’ of a scienter requirement.” We also recognized that a misrepresentation or omission is material if “under all the circumstances, the omitted fact or the prediction without a reasonable basis ‘is one [that] a reasonable investor would consider significant in [making] the decision to invest, such that it alters the total mix of information available about the proposed investment.”

¶ 28. In Count IV, the Secretary found that Watkins “engage[d] in an act, practice, or course of business that operate[d] ... as a fraud or deceit upon another person” by using the bond proceeds for the Meridian project. As with subsection (2), subsection (3) contains no scienter requirement. The question is simply whether the actor’s conduct operated as a fraud or deceit.

¶ 29. We find that the Secretary’s findings were supported by substantial evidence. “‘Substantial evidence is “something less than a preponderance of the evidence but more than a scintilla or glimmer. The reviewing court is concerned only with the reasonableness of the administrative order, not its correctness.”’”

¶30. A variety of circumstantial evidence supports the Secretary’s conclusions. Watkins used proceeds from the bond sale, held in trust by Bankplus, to purchase property for the unrelated Meridian project. When Watkins submitted a requisition form to Bankplus to 'withdraw the funds he ultimately used in Meridian, he indicated that those funds would be used for demolition and construction on the Metrocenter project.

¶ 31. Watkins argues these funds cannot be considered misappropriated as he was owed that sum and more under the development agreement between Retro Metro and Watkins Development. While the principle underlying this defense is sound— one cannot misappropriate funds paid to him for a debt owed to him—this defense ignores that Watkins never provided any indication to the trustee that he was withdrawing funds for that purpose. The Secretary then, given our deferential standard of review, was supported by substantial evidence in finding that the money withdrawn and used in Meridian was not withdrawn as payment for the sum owed to Watkins, but instead as part of fraudulent scheme that stemmed from Watkins’s misrepresentations in the PPM, bond-purchase contract, and loan agreement, to his representations in the requisition forms, and finally to his misuse of the funds withdrawn.

¶ 32. Watkins also challenges whether his statements that the funds would be used for the Metrocenter project were material as required to support Count III under subsection (2). He argues that no evidence supports a finding that Duncan Williams—the investment banking firm that purchased the bonds—would have made a different decision if it knew some funds would be used on the Meridian project. But, as explained above, materiality under subsection (2) is an objective reasonable-investor standard, not a subjective standard about the actual purchaser’s intentions. Here, the Secretary did not err by finding the statements material, as a reasonable investor purchasing bonds reasonably may be expected to make the decision to purchase, at least in part, on the purpose for the bond issuance.

¶ 33. In sum, given the deferential nature of our review, we are compelled to find that Counts II, III, and TV are supported by substantial evidence.

CONCLUSION

¶ 34. We affirm the Secretary’s findings as to Counts II, III, and IV and affirm both the chancellor’s and Court of Appeals’ decisions to affirm those counts. We reverse the Court of Appeals’ decision as to Count I, and affirm the chancellor’s decision to vacate the Secretary’s finding on that count, because the Secretary failed to cross-appeal the chancellor’s decision.

¶ 35. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART; THE JUDGMENT OF THE CHANCERY COURT FOR THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY IS AFFIRMED.

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

      . Watkins Dev., LLC v. Hosemann, 214 So.3d 1101, 1103-04, 2016 WL 3512479, *1 (Miss. Ct. App. June 28, 2016).

      . Id.

      . Dunn v. Dunn, 853 So.2d 1150, 1152 (Miss. 2003).

      . Id. (quoting Delta Chem. & Petroleum, Inc. v. Citizens Bank of Byhalia, Miss., 790 So.2d 862, 878 (Miss. Ct. App. 2001)).

      . Dunn, 853 So.2d at 1152 (quoting Hajj v. Root, 2002 WL 571785, *1 (Mich. Ct. App. 2002)).

      . Harrington v. Office of Miss. Sec’y of State, 129 So.3d 153, 158 (Miss. 2013) (quoting Miss. Sierra Club, Inc. v. Miss. Dep’t of Envtl. Quality, 819 So.2d 515, 519 (Miss. 2002)).

      . Harrington, 129 So.3d at 158 (quoting W.C. Fore v. Miss. Dep’t of Revenue, 90 So.3d 572, 577 (Miss. 2012)).

      . Miss. Code Ann. § 75-71-609 (Rev. 2016).

      . Harrington, 129 So.3d at 158 (quoting W.C. Fore, 90 So.3d at 577).

      . Miss. Code Ann. § 75-71-501 (Rev. 2016).

      . Harrington, 129 So.3d at 159 (citing Lone Star Indus., Inc. v. McGrow, 90 So.3d 564, 571 (Miss. 2012); Longanecker v. Diamondhead Country Club, 760 So.2d 764, 769-70 (Miss. 2000); Hopewell Enter., Inc. v. Trustmark Nat'l Bank, 680 So.2d 812, 817-18 (Miss. 1996); Miss. Ethics Comm’n v. Comm’n on Prof'l Responsibility of The Miss. Bar, 672 So.2d 1222, 1225 (Miss. 1996); Miller v. Coast Elec. Power Ass’n, 797 So.2d 314, 317 (Miss. Ct. App. 2001)).

      . Sec. & Exch. Comm’n v. Zandford, 535 U.S. 813, 815, 122 S.Ct. 1899, 153 L.Ed.2d 1 (2002).

      . Id.

      . Id.

      . Id.

      . Id.

      . Id. at 819 (quoting 15 U.S.C. § 78j).

      . Zandford, 535 U.S. at 816, 122 S.Ct. 1899.

      . Id. at 820.

      . Id.

      . Id. at 820-21.

      . Id. at 822.

      . Id. at 820.

      . Id. at 822.

      . Harrington, 129 So.3d at 162-64 (quoting Aaron v. Sec. & Exch. Comm’n, 446 U.S. 680, 696-97, 100 S.Ct. 1945, 64 L.Ed.2d 611 (1980) (quoting 15 U.S.C. § 77q(a)(1))).

      . Device, Black’s Law Dictionary 404 (abr. 9th ed.).

      . Scheme, Black’s Law Dictionary 1148 (abr. 9th ed.).

      . Artifice, Black’s Law Dictionary 100 (abr. 9th ed.).

      . Harrington, 129 So.3d at 162-64 (quoting Aaron, 446 U.S. at 696-97, 100 S.Ct. 1945).

      . Harrington, 129 So.3d at 165 (quoting Rubinstein v. Collins, 20 F.3d 160, 166-68 (5th Cir. 1994)).

      . Harrington, 129 So.3d at 158 (quoting Sierra Club v. Miss. Envtl. Quality Permit Bd., 943 So.2d 673, 678 (Miss. 2006) (quoting Miss. Dep't of Envtl. Quality v. Weems, 653 So.2d 266, 280-81 (Miss. 1995))).


source: Caselaw Access Project

license: Public Domain

text:
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    2015-CT-00713-COA
    Supreme Court of Mississippi.
    Filed: 02/07/2017
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   Motion Desc: Petition for Writ of Cer-tiorari

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text:
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text:
    Winfred FORKNER v. STATE of Mississippi
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    Supreme Court of Mississippi.
    Filed: 01/17/2017
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    Greg ESTES v. Sarah ESTES Greg Estes v. Sarah Young
    2011-CT-01451-SCT
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text:
    Ellis TURNAGE v. Ellis Christopher BROOKS
    2014-CT-00966-COA
    Supreme Court of Mississippi.
    Filed: 01/31/2017
    Closed: 03/30/2017
   Motion Desc: Petition For Writ Certio-rari

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text:
    Ryan SAVINELL v. STATE of Mississippi
    2015-CT-01262-COA
    Supreme Court of Mississippi.
    Filed: 02/03/2017
    Closed: 04/20/2017
   Motion Desc: Petition for Writ of Cer-tiorari

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text:
    Aundrea ROBINSON v. MARTIN FOOD STORES, INC.
    2014-CT-01457-SCT
    Supreme Court of Mississippi.
    Filed: 02/14/2017
    Closed: 04/27/2017
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text:
    Douglas Michael LONG, Jr. v. David J. VITKAUSKAS
    2015-CT-00527-SCT
    Supreme Court of Mississippi.
    Filed: 02/28/2017
    Closed: 04/20/2017
   Motion Desc: Petition for Writ of Cer-tiorari

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text:
    Daniel S. FILLINGAME v. MISSISSIPPI INSURANCE DEPARTMENT
    2014-CT-01830-COA
    Supreme Court of Mississippi.
    Filed: 03/07/2017
    Closed: 04/27/2017
   Motion Desc: Appellant’s Petition for Writ of Certiorari

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text:
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    2014-CT-01636-COA
    Supreme Court of Mississippi.
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    Closed: 04/20/2017
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text:
    Vincent N. CREPPEL v. STATE of Mississippi
    2015-CT-01188-COA
    Supreme Court of Mississippi.
    Filed: 01/25/2017
    Closed: 03/30/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari—Denied


author: BARNES, J.,

text:
    Ryan SAVINELL a/k/a Ryan Anthony, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-CP-01262-COA
    Court of Appeals of Mississippi.
    09/20/2016
    Rehearing Denied January 24, 2017

      RYAN SAVINELL (PRO SE), FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON, FOR APPELLEE
    BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   BARNES, J.,

FOR THE COURT:

¶1. Ryan Savinell pleaded guilty to armed robbery on August 31, 2009, and was sentenced by the DeSoto County Circuit Court to twelve years in the custody of the Mississippi Department of Corrections (MDOC) and eight years of post-release supervision. Savinell’s first motion for post-conviction relief (PCR) was dismissed by the circuit court on January 5, 2012. He filed a motion for rehearing, which was denied. He subsequently appealed the dismissal, but the appeal was dismissed for failure to pay the costs of the appeal.

¶2. Savinell filed a second PCR motion. On November 2, 2012, the circuit court dismissed the motion, finding it was procedurally barred as res judicata and a successive writ. Savinell appealed, and this Court affirmed the circuit court’s dismissal on April 29, 2014. Savinell v. State, 147 So.3d 862, 864 (¶ 9) (Miss.Ct.App.2014).

¶3. Before us on appeal is Savinell’s third PCR motion, filed on November 13, 2014, which asserts that his plea was involuntary due to ineffective assistance of counsel because his attorney failed to conduct an independent investigation and provide Savinell with discovery before the sentencing hearing. On April 28, 2015, Sa-vinell filed another PCR motion, a motion to set a trial date, a motion to amend his PCR motion, and a motion to grant his motion to set a trial date.

¶4. The circuit court denied Savinell’s PCR motion “and subsequent documents filed by [him]” on June 5, 2015, as successive, time-barred, and barred by res judi-cata. Savinell filed a request for an out-of-time appeal on July 24, 2015, which the circuit court granted on August 7, 2015.

¶5. On appeal, we find no error and affirm.

STANDARD OF REVIEW

¶6. A circuit court’s denial or dismissal of a PCR motion is reviewed under an abuse-of-discretion standard. Wallace v. State, 180 So.3d 767, 769 (¶ 7) (Miss.Ct.App.2015) (citing Crosby v. State, 16 So.3d 74, 77 (¶ 5) (Miss.Ct.App.2009)). “However, questions of law are reviewed de novo.” Id. (citing Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004)).

DISCUSSION

¶7. Savinell filed his latest PCR motion more than three years after he entered his guilty plea; therefore, his motion is time-barred. See Miss. Code Ann. § 99-39-5(2) (Rev. 2015). This is also Savmell’s third PCR motion. The Mississippi Uniform Post-Conviction Collateral Relief Act (UP-CCRA) provides that any order dismissing or denying a petitioner’s motion for relief “is a final judgment ... [and] shall be-a bar to a second or successive motion[.]” Miss. Code Ann. § 99-39-23(6) (Rev. 2015). To circumvent these procedural bars, Savinell must assert a cognizable claim involving the violation of a fundamental constitutional right. See Rowland v. State, 42 So.3d 503, 506 (¶ 9) (Miss.2010).

¶8. The circuit court also found Savinell’s claims barred by res judicata. “Res judicata prevents, the litigation of claims that ‘were made or should have been made’ during previous litigation.” Riley v. State, 150 So.3d 138, 140 (¶ 8) (Miss.Ct.App.2014) (quoting Hill v. Carroll Cty., 17 So.3d 1081, 1084 (¶ 8) (Miss.2009)). Savinell’s.third motion raises the same issues of ineffective assistance of counsel raised in his second PCR motion. ‘‘[A]n issue that has been addressed in a final judgment with specific findings of facts and conclusions of law may not be raised again by a PCR movant.” Savinell, 147 So.3d at 863 (¶ 7) (quoting Ratcliff v. State, 120 So.3d 1058, 1060 (¶ 5) (Miss.Ct.App.2013)). However, as the Mississippi Supreme Court held in Smith v. State, 149 So.3d 1027, 1032 (¶ 11) (Miss.2014), “neither the common law nor our own constitutional law applies the doctrine of res judicata to constitutional claims.”

¶9. Citing his counsel’s failure to conduct an independent investigation, which Savinell claims would have shown his innocence, Savinell argues that his plea was involuntary due to ineffective assistance of counsel. A claim of ineffective assistance of counsel requires a showing that: (1) counsel’s performance was deficient and (2) the deficient performance resulted in prejudice to the defendant. Strickland v, Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In the context of a guilty plea, “one must show ‘counsel’s errors proximately resulted in the guilty plea and, but for counsel’s error, the defendant would not have entered the guilty plea.’” McCollum v. State, 81 So.3d 1191, 1193 (¶ 8) (Miss.Ct.App. 2012) (quoting Deloach v. State, 937 So.2d 1010, 1011 (¶ 5) (Miss.Ct.App.2006)). Savi-nell claims that had he been provided the evidence of the witnesses’ statements and other evidence, he would have realized that he did not rob the Walgreens on the date listed in the indictment. He admits he and his accomplice had robbed the store during that same time period, but claims that he did not commit the particular robbery cited in the indictment. For example, Savinell claims that store’s videotape would show “that a taller white guy is standing behind a shorter black guy,” and he argues that at trial, he could prove he (a Caucasian) is actually shorter than his accomplice (an African American). He also claims that when he and his accomplice robbed the store, they wore white masks, but one witness stated the robbers wore “blue/ black” masks. Thus, Savinell is essentially arguing either that he is factually innocent of the crime or the evidence would have been insufficient to support his guilt of the crime charged. Regardless, “a valid guilty plea waives all non-jurisdictional rights or defects which are incident to the trial.” Nick v. State, 62 So.3d 409, 411 (¶ 4) (Miss. Ct.App.2010) (citing Madden v. State, 991 So.2d 1231, 1237 (¶ 25) (Miss.Ct.App. 2008)). These include “the right to confront and cross-examine the State’s witnesses, the right to a jury trial, and the right to have the State prove each element of the offense beyond a reasonable doubt.” Joiner v. State, 61 So.3d 156, 158 (¶ 7) (Miss. 2011). We find no basis for Savinell’s claim of ineffective assistance of counsel and no violation of a fundamental right exempting Savinell’s claims from any procedural bar. In his brief, Savinell acknowledges that he told his attorney he “was guilty[;] so he thought I did the crime.” Also, Savinell’s accomplice informed police that the two men had robbed the store. We find no evidence that counsel’s performance was deficient in failing to discover the details of the crime in order to disprove his own client’s admission.

¶10. Accordingly, we affirm the court’s judgment of dismissal.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR.

      . Additionally, Savinell has filed numerous actions in federal court. See Savinell v. Davis, No. 1:14CV341-HSO-JCG, 2016 WL 96167, at *1 (S.D.Miss. Jan. 8, 2016) (dismissed for failure to prosecute); Savinell v. Epps, No. 3:14CV516-LRA, 2015 WL 5021770, at *3 (S.D.Miss. Aug. 24, 2015) (dismissed without prejudice for failure to exhaust his administrative remedies); Savinell v. Epps, No. 4:14CV113-SA-DAS, 2015 WL 3450552, at *3 (N.D.Miss. May 29, 2015) (dismissed without prejudice for failure to exhaust administrative remedies); Savinell v. Alexander, No. 4:14cv18-MPM-DAS, 2014 WL 5090623, at *6 (N.D.Miss. Oct. 9, 2014) (granting defendants’ motion for summary judgment) (N.D. Miss. Oct. 9, 2014); Savinell v. Vanderburg, No. 3:14CV84-MPM-JMV, 2014 WL 5025358, at *2 (N.D.Miss. Oct. 8, 2014) (granting the State’s motion to dismiss, dismissing Savi-nell’s petition for a writ of habeas corpus “for want of jurisdiction,” arid dismissing his motion to answer the petition as moot).


author: LEE, C.J.,

text:
    Walter POOLE, Jr., Appellant v. William H. WALTON, Appellee
    NO. 2015-CP-00604-COA
    Court of Appeals of Mississippi.
    10/11/2016
    Rehearing Denied February 14, 2017
    Certiorari Denied April 13, 2017

      WALTER POOLE JR., PRO SE
    JOYCE IVY CHILES, FOR APPEL-LEE.
    BEFORE LEE, C.J., BARNES AND ISHEE, JJ.
   LEE, C.J.,

FOR THE COURT:

¶ 1. In this case we must determine if the chancellor erred in granting William H. Walton’s motion to remove Walter Poole Jr. as administrator of his wife Vera Walton’s estate and appoint Walton as administrator. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Vera died intestate on July 7, 2009. Poole, Vera’s brother, filed a motion in the Lowndes County Chancery Court requesting his appointment as administrator of Vera’s estate. The motion did not name Walton as one of Vera’s heirs. The chancellor granted Poole’s motion. Walton subsequently filed a petition to remove Poole as administrator of Vera’s estate. During a hearing on the matter, Poole stated that he had no objection to either his removal as administrator of Vera’s estate or the appointment of Walton as administrator.

¶ 3. The chancellor removed Poole and appointed Walton as administrator of Vera’s estate. Poole now appeals pro se, asserting the chancellor erred by: (1) removing him as administrator of Vera’s estate; (2) failing to make adequate findings of fact; and (3) refusing to hear evidence concerning Vera’s intent as to the disposition of her property and the appointment of Walton as administrator.

STANDARD OF REVIEW

¶4. Our review of a chancellor’s judgment is limited. Frazier v. Shackelford, 912 So.2d 138, 143 (¶ 18) (Miss. 2005) (citing Miller v. Pannell, 815 So.2d 1117, 1119 (¶ 9) (Miss. 2002)). Generally, we will not disturb a chancellor’s findings unless the chancellor was manifestly wrong or clearly erroneous, or applied the wrong legal standard. Id.

DISCUSSION

¶5. We first note that Walton failed to file an appellee’s brief. When the appellee fails to file a brief,

this Court has two options. First, we may take the appellee’s failure to file a brief as a confession of error and reverse. This option is favored when the record is complicated or of large volume and the case has been thoroughly briefed by the appellant with apt and applicable citation of authority so that the brief makes out an apparent case of error. However, if the record can be conveniently examined and such examination reveals a sound and unmistakable basis or ground upon which the judgment may be safely affirmed, we may disregard the appellee’s error and affirm.

Jay Foster PLLC v. McNair, 175 So.3d 565, 571 (¶ 15) (Miss. Ct. App. 2015) (quoting Archie v. City of Canton, 92 So.3d 1279, 1282 (¶ 10) (Miss. Ct. App. 2012)). In this instance, we can safely affirm regardless of Walton’s failure to file a brief.

I. Removal of Poole as Administrator

¶ 6. Poole contends that he should not have been removed as administrator of Vera’s estate. However, Poole stated during the hearing that he had no objection to either his removal as administrator of Vera’s estate or the appointment of Walton as administrator. This issue is without merit.

II. Findings of Fact

III. Other Evidence

¶ 7. In his other issues, Poole asserts that the chancellor should have allowed him to submit evidence of “Vera’s true intent” regarding her property and the appointment of an administrator over her estate. Poole implies that Vera had a will but that it was destroyed or withheld by Walton. But Poole admitted during the hearing that he had no proof to support his allegations. We find no merit to Poole’s remaining issues.

¶ 8. THE JUDGMENT OF THE LOWNDES COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR.

      . The hearing also included testimony regarding two other matters, all of which had been consolidated. One matter concerned the estate of Vera's other brother, Oscar Dell Poole. Oscar had died in 1999, and Vera had been appointed administrator of his estate. The other matter concerned the partition of real property owned by Oscar. The chancellor ordered this property sold with the proceeds divided equally among Oscar’s heirs. Vera was one of Oscar's heirs.


text:
    PUBLIC EMPLOYEES’ RETIREMENT, Appellant v. Kristie JAMES, Appellee
    NO. 2015-SA-01362-COA
    Court of Appeals of Mississippi.
    11/01/2016
    Rehearing Denied March 18, 2017
    ATTORNEY. FOR APPELLANT: OFFICE OF THE ATTORNEY GENERAL BY: JANE L.-MAPP
    ATTORNEY FOR APPELLEE: GEORGE S. LUTER '
    BEFORE LEE, C.J., JAMES AND GREENLEE, JJ.
   LEE, C.J.,

FOR THE COURT:

¶ 1. The Board of Trustees (the Board) of the Public Employees’ Retirement System (PERS) denied Kristie James’s request for non-duty-related disability benefits. The Hinds County Circuit Court, First Judicial District, reversed • • the Board’s decision and awarded James disability benefits. PERS now appeals, asserting that the circuit court erred in awarding James disability benefits.

PROCEDURAL HISTORY

¶ 2. Citing chronic back pain, James applied for disability benefits in December 2008. At the time of her disability hearing in 2009, James was a seventh-grade teacher at Caledonia Middle School in Lowndes County, Mississippi. James had been employed by the local school district for approximately fourteen years.

¶ 3. The PERS Medical Board reviewed James’s application and denied her disability benefits. James then appealed to the Disability Appeals Committee (DAC), which granted her a hearing. The DAC recommended to deny James disability benefits, and the Board adopted the DAC’s recommendation. As previously stated, the circuit court reversed the Board’s decision and awarded James disability benefits.

FACTS

¶ 4. James testified that she began experiencing back pain in 2007. James first consulted a chiropractor, but her pain was not alleviated. James then saw Dr. Timothy Bassett, who diagnosed her with a minimal disc bulge and a small annular tear in her L5-S1 region. According to James, Dr. Bassett recommended three months of physical therapy. Finding physical therapy unhelpful, James then saw Dr. Tom McReynolds twice for joint injections due to low-back pain, lumbar bulging disc, lumbar facet arthropathy, and lumbar spondylosis.

¶ 5. In March 2008, James had back surgery (a spinal fusion) to alleviate her pain. James testified this surgery provided relief for about three months. Dr. Patrick Curlee had performed the surgery and continued to see James for follow-up appointments. Dr. Curlee’s clinic notes from September 15, 2008, stated that James could “return to normal daily activities, including work, with some limitations. No standing duties at work. The patient should be able to return to work immediately.” Dr. Curlee also prescribed James pain medication. Dr. Curlee’s clinic notes from January 8, 2009, diagnosed James with an “incomplete boney fusion at L5-S1 both post-laterally and in the interverte-bral space.” He recommended that James try an external bone stimulator to alleviate her pain.

¶6. The last clinic notes in the record are dated September 10, 2009. In these notes, Dr. Curlee stated that “secondary to her back pain, [James] is unable to perform all of the necessary duties of her job.” Dr. Curlee diagnosed James with “Lumbar Pseudarthrosis L5-S1,” which resulted from the failed spinal-fusion surgery. Dr. Curlee also noted James’s long-term narcotic usage, but stated James was “taking a very reasonable amount of narcotics given her diagnosis. She has proven very responsible with her medication usage over the last couple of years.”

¶ 7. Dr. Curlee completed a PERS Form 7 on January 8, 2009, indicating that due to James’s back pain, she was unable to “bend, twist, stoop, climb or crawl. [She] also cannot stand for extended periods of time.” Dr. Curlee listed her restrictions as “no prolonged standing or heavy lifting.” Under “prognosis for recovery,” Dr. Cur-lee wrote “poor.” And he assigned James a permanent partial impairment rating of “twenty-three percent whole person” and “thirty percent lumbar spine.”

¶ 8. James was sent to Dr. Laura Gray for an independent medical examination (IME) on April 14, 2009. After reviewing James’s medical records and conducting an examination, Dr. Gray concluded that James had “no specific clinical indication [that] would prevent her from returning to work.” Dr. Gray noted that James “appealed] to be over-using narcotic medications” and “would be better served to be on a lower dose of narcotic[s] with focus on physical activity.” Dr. Gray reported James’s range of motion was within normal limits for all areas except for her back. Due to this, Dr. Gray recommended that James “should return back to her usual and customary duty with limitation in lumbar flexion.” Although Dr. Gray noted she reviewed all of James’s medical records, including those from Dr. Curlee where he did impose restrictions, Dr. Gray stated “the patient has no restrictions noted.”

¶ 9. James testified that her work day began at 7:00 a.m. and lasted until 3:30 p.m. at the earliest. Her work day consisted of frequent standing, walking, and bending, with the occasional lifting of boxes or books. She stated she could not stand for long periods of time—thirty minutes maximum—and could not lift heavy items. James stated her pain level was typically an eight on a scale of one to ten, but a ten at the end of a work day. At the time of the hearing, James had prescriptions for a pain patch and hydrocodone. She testified that she took the hydrocodone two to three times per week and changed the pain patch every three days and that the pain medication did not eliminate her pain; it only took “the edge off.”

¶ 10. Karen Pittman, the principal at the school, completed a PERS Form 6B, noting that James had difficulty performing her duties due to her constant pain and that consistent attendance was required. Pittman listed James’s duties as “standing, walking, sitting, bending, reaching, stooping, and pushing.” Pittman indicated that James could not perform her job. At the hearing, Pittman testified that James was an excellent teacher, and James’s contract was renewed despite her physical limitations.

STANDARD OF REVIEW

¶ 11. The standard of review of actions by administrative agencies is well established. It is the duty of the reviewing court to ascertain whether the Board’s decision (1) was supported by substantial evidence; (2) was arbitrary or capricious; (3) was beyond the power of the agency to make; or (4) violated some statutory or constitutional right of the complaining party. Pub. Emps. Ret. Sys. v. Dearman, 846 So.2d 1014, 1018 (¶ 13) (Miss. 2003); Pub. Emps. Ret. Sys. v. Dishmon, 797 So.2d 888, 891 (¶ 8) (Miss. 2001). The applicant for disability income bears the burden of proving that she is actually disabled. Dishmon, 797 So.2d at 893 (¶ 15). There is a rebuttable presumption in favor of a PERS ruling. Brinston v. Pub. Emps. Ret. Sys., 706 So.2d 258, 261 (¶ 6) (Miss. Ct. App. 1998).

DISCUSSION

¶ 12. In its only issue on appeal, PERS claims its decision is supported by substantial evidence. Mississippi Code Annotated section 25-11-113(1)(a) (Rev. 2010) defines “disability” as

the inability to perform the usual duties of employment or the incapacity to perform such lesser duties, if any, as the employer, in its discretion, may assign without material reduction in compensation, or the incapacity to perform the duties of any employment covered by [PERS] that is actually offered and is within the same general territorial work area, without material reduction in compensation.

In denying James’s request for disability benefits, the Board found the following:

This Committee finds James’s testimony very credible. After hearing her testimony and looking at the records, this Committee agrees that James has what the medical community calls “failed back syndrome.” That terminology simply means that James had surgery to alleviate back pain but even after the surgery, she has back pain. As noted by both Dr. Curlee and Dr. Gray, James’s back exam is basically normal. There is nothing pathologic in her back. The Committee believes James has muscular back pain[,] and she has been stable since her back surgery. We note that Dr. Curlee has written that James has numerous limitations, but those are not based on structural problems. Those problems with the discs have been repaired as evidenced by the MRI. There is no evidence of sciatic pain[,] and all muscle groups are equal in strength and reflex. The limitations written by Dr. Curlee are based on James’s complaints of pain. Pain without physical limitations cannot justify the recommendation of disability. And clearly, James is working[,] albeit she says she is in pain. This Committee cannot recommend disability based on the evidence before us today. There are other modalities that may relieve some of James’s muscular back pain if she wishes to pursue them.

¶ 13. A similar situation occurred in Knight v. Public Employees’ Retirement System, 108 So.3d 912, 920 (¶ 31) (Miss. 2012), where the Mississippi Supreme Court determined that PERS’s denial of disability benefits was unsupported by substantial evidence. Knight worked as a committee assistant for the Mississippi Senate, and her job required her to be on her feet constantly. Id. at 918 (¶ 21). PERS claimed that Knight had failed to produce “persuasive and credible objective medical evidence of a disability.” Id. at 916 (¶ 16). Thus, PERS denied her benefits, finding that “[tjhere is no statutory provision wherein an award of disability can be granted for pain when no objective reason for that pain can be produced.” Id. However, the supreme court determined that there was evidence that Knight was disabled—the determination was not based solely on subjective evidence as PERS had concluded. Id. at 920 (¶ 31). One of Knight’s doctors indicated she could only do sedentary work, which the supreme court noted “is a conclusion that she could not return to her employment under the statute.” Id. Furthermore, no doctor concluded that Knight was not disabled, and one doctor indicated she was at maximum medical improvement (MMI). Id.

¶ 14. The Board cites to Laughlin v. Public Employees’ Retirement System, 11 So.3d 154 (Miss. Ct. App. 2009), for support. However, one of Laughlin’s treating physicians did not indicate that she suffered from any permanent partial impairments (PPI); had reached MMI; or would be subject to any job restrictions. Id. at 156 (¶ 8). Another treating physician indicated Laughlin had reached MMI, but did not find that she suffered from any PPI. Id. And this physician, along with a third physician, noted Laughlin would most likely make a full recovery. Id. at 157 (¶ 8). The physician who performed an IME stated that Laughlin “had no abnormal pain behaviors or pain magnification.” Id. at 155-56 (¶ 5).

¶ 15. In this instance, we find the Board’s decision was not supported by substantial evidence. James produced sufficient evidence of her disability in order to rebut the presumption. James’s job duties included “standing, walking, sitting, bending, reaching, stooping, and pushing.” And Pittman indicated that James could not perform her job duties. Although Dr. Gray noted no restrictions in James’s medical records, Dr. Curlee clearly indicated James had a poor prognosis for recovery and had numerous restrictions. Dr. Curlee also assigned her a PPI rating of “twenty-three percent whole person” and “thirty percent lumbar spine.” Thus, there was objective medical evidence of James’s impairment. This issue is without merit.

II16. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P JJ., BARNES, ISHEE, CARLTON, FAIR, JAMES AND GREENLEE, JJ., CONCUR. WILSON, J., NOT PARTICIPATING.


author: GREENLEE, J.,

text:
    Anthony Davon JEFFERSON a/k/a Anthony Devon Jefferson a/k/a Anthony Jefferson a/k/a Marcus Ross a/k/a Wesley Thompson a/k/a Anthony Davis Jefferson, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-00948-COA
    Court of Appeals of Mississippi.
    11/01/2016
    Rehearing Denied April 11, 2017

      OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, PHILLIP BROADHEAD, WILLIAM ANDY SUMRALL, ATTORNEYS FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD, JASON L. DAVIS, ATTORNEYS FOR APPELLEE
    BEFORE CARLTON, P.J., FAIR AND GREENLEE, JJ.
   GREENLEE, J.,

FOR THE COURT:

¶ 1. This is an appeal from Madison County Circuit Court of the jury-trial conviction of Anthony Jefferson for possession of marijuana and conspiracy to possess marijuana. On appeal, Jefferson asserts error because the circuit court allowed testimony about Jefferson’s prior oral statement to police; because testimony and opening statements included references to an out-of-court statement of Paulette Jefferson (Paulette), who did not testify; and because the court failed to grant Jefferson’s motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. Finding no error, we affirm.

FACTS AND PROCEEDINGS BELOW

¶ 2. On August 17, 2011, Dominick Riley, United States postal inspector, became suspicious of a package mailed from California to Canton, Mississippi. The package’s sender’s name did not match the sender’s address. Aso, the package came from California, a “source state” for narcotics shipping in the United States. Riley contacted the Mississippi Bureau of Narcotics (MBN), whose K-9 unit later alerted to the presence of narcotics in the package. After securing a federal search warrant, the package was opened, and approximately two kilograms of marijuana was discovered, Riley and MBN coordinated to execute a controlled delivery of the package addressed to “the Jefferson family” at “331 Dobson Avenue, number two,” Canton, MS 39046.

¶3. At the August 18, 2011 controlled delivery, Riley represented himself as a postal worker delivering the package, while MBN agents observed. When Riley knocked on the door at the address, Paulette came out of the house. Riley asked Paulette if she was expecting a package. She said that she was and signed for the package using a false name (Paulette Hackett). Riley handed the package to Paulette and left. The observing MBN agents, Candace Edwards and Anthony Moser, her partner, were in their vehicle. They watched Paulette take possession of the package, then turn to reenter the house. Edwards next observed Paulette look at Edwards’s vehicle, throw the package to the ground, and run back into the house. Moser then quickly exited the vehicle in pursuit of Paulette, followed by Edwards.

¶4. Pursuing Paulette into the home, Edwards and Moser discovered two females, one male, a loaded shotgun, and misdemeanor amounts of illegal substances. While at the scene, Edwards learned from the occupants of the home that Jefferson and his father were en route to the location to retrieve the marijuana. Jefferson and his father arrived at the house and were told to get out of their vehicle and put their hands up, to which they complied. Wesley Layton, the supervising MBN agent, arrived on the scene shortly after. Layton testified that after he arrived, he observed Jefferson and his father in handcuffs, and. approached them intending to resolve the identities of the two men. After he approached Jefferson, he asked him “[what was] going on, you know, who he was.” In his response, Jefferson told Layton that the package was his.

¶ 5. The next day, Edwards and Moser informed Jefferson of his Miranda rights, which he waived via a written waiver form that he signed twice. According to the agents, Jefferson told them that he knew the package was coming, that he arranged for an individual in California to send the package, and that he intended to sell the marijuana. He also made a written statement in which he reiterated that he knew the package was coming, but recanted that he knew what was in the package. Jefferson and Paulette were indicted for possession of marijuana and conspiracy to possess marijuana. The case proceeded to trial, which commenced on May 15, 2012.

¶ 6. A suppression hearing was held on May 14, 2012, the day before trial, at which Jefferson was present. Paulette’s out-of-court statement was not discussed at the suppression hearing, other than a reference made to it by Edwards while testifying to other matters. The court considered Jefferson’s oral and written statements during his interrogation to be voluntary and allowable at trial. After conclusion of the suppression hearing but before trial began, Jefferson voluntarily fled. The court commenced trial the next day after having found that Jefferson was voluntarily, wilfully, and deliberately absent from trial and, as a result, waived his right to be present at trial. Neither the State nor Jefferson’s counsel objected to the court’s finding.

¶ 7. In opening statements, the State stated that it expected the proof to show that statements were made by Paulette that implicated Jefferson. Jefferson’s counsel contemporaneously objected to the mention of any statements made by Paulette. The trial judge overruled the objection, noting that the statement was made as part of opening statements.

¶ 8. During trial, the trial court allowed Edwards’s and Moser’s testimony regarding Jefferson’s verbal statement in addition to the written statement of Jefferson. Edwards was also allowed to testify regarding the course of her investigation and how it unfolded. Jefferson’s counsel also contemporaneously objected to the respective parts of their testimony that mentioned statements made to them by Paulette as inadmissible hearsay. The circuit court overruled the objections, noting that there could be no mention that Paulette made the statement, but that their testimony would be allowed to explain the course of their investigation and why they acted as-they did in remaining at the residence after having detained all the occupants.

¶ 9. Specifically, at trial, Edwards testified: “[I was] advised that someone was supposed to contact Mr. Jefferson and advise him that the box had been received[,] and ... the plan was that he was going to come get it because the person at the residence had spoken to Mr. Jefferson or someone significant to Mr. Jefferson, earlier in the day to advise the female who sent the box that it should be coming.” Further, Edwards testified that she “learned [Jefferson] was already en route to the residence ... with an individual^] ... [a]nd when they arrive[d], [they were] going to come to the residence, and the reason they were coming to the residence was to retrieve the package.” Paulette never testified.

¶ 10. In a jury trial, Jefferson was convicted of possession of marijuana in an amount more than one kilogram but less than five kilograms with intent to distribute, and conspiracy to possess marijuana in an amount greater than one kilogram but less than five kilograms. Jefferson moved for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which was denied. Jefferson now appeals to this Court.

DISCUSSION

¶ 11. Jefferson asserts the trial court erred because it admitted testimony on Jefferson’s verbal confession, because it admitted testimony from Edwards about the questioning of Paulette, because of an improper comment during opening statements about a statement from Paulette when she was not going to be a witness, because it denied the motion for a JNOV, and because it denied the motion for a new trial.

I. Admission of Verbal Confession

¶ 12. Jefferson argues that the trial court erred in refusing to suppress his verbal confession. He argues that because it is in conflict with his written statement, it is inadmissible. “Whether a confession is admissible is a fact-finding function for the trial court, and its decision will not be overturned unless the trial court applied an incorrect legal standard, committed manifest error, or made a decision against the overwhelming weight of the evidence.” Haynes v. State, 934 So.2d 983, 988 (¶ 15) (Miss. 2006) (citations omitted). “Once a trial judge has determined, at a preliminary hearing, that a confession is admissible, the defendant/appellant has a heavy burden in attempting to reverse that decision on appeal.” Payton v. State, 897 So.2d 921, 935 (¶ 29) (Miss. 2003) (citation omitted). “The prosecution has the burden of proving beyond a reasonable doubt that the confession was voluntary. The State meets its burden and makes a prima facie case when an officer or other person who has knowledge of the facts testifies that the confession was made voluntarily, without threats, coercion, or offer of reward.” Id. at (¶ 30).

¶ 13. At the suppression hearing, the State presented the testimony of both Edwards and Moser in support of allowing testimony regarding the verbal confession to be admitted. Jefferson testified that he stated to the agents that he did not know the contents of the package, but was expecting the package. Jefferson agreed that he signed a Miranda waiver at the beginning of the interview, and made his written statement at the end of the interview. Jefferson testified that the interview only lasted approximately thirty minutes. Edwards and Moser both testified, contrary to Jefferson’s claim, that Jefferson stated to them at the post-Miranda interview that he knew the package was coming, that he arranged for an individual in California to send the package, and that he intended to sell the marijuana. Further, they testified that the interview lasted approximately two hours. Jefferson’s Miranda waiver, which was made at the beginning of the interview, was signed at 3:43 p.m., and his written statement, which was made at the end of the interview, was signed at 5:17 p.m. Jefferson could provide no explanation for the more-than-one-hour discrepancy between the signing times and how long he said the interview lasted.

¶ 14. The trial court did not abuse its discretion in finding that Jefferson’s version of what occurred during the interview was not credible. Further, the fact that the verbal confession was neither reduced to writing and signed nor recorded did not render it inadmissible. Cobb v. State, 734 So.2d 182, 184-85 (¶¶ 5-7) (Miss. Ct. App. 1999) (Testimony to exclude a confession will not suffice if it is contradicted by competent evidence that the statements were, in fact, made.). Thus, we find this claim is without merit.

II. Statements Made by Paulette Jefferson

¶ 15. Jefferson asserts the prosecution erred during opening statements in saying that it intended to prove statements made by Paulette. Jefferson further asserts that the trial court erred by allowing Edwards and Moser to testify regarding the investigation.

A. Opening Statement

¶ 16. Jefferson argues the prosecution erred when in opening statements the prosecution stated that it intended to prove Paulette said the package was not hers, that the package was Jefferson’s, and that Jefferson told her to sign for it, because the prosecution could not have reasonably expected it would be able to offer those statements into evidence. Specifically, Jefferson takes issue with the prosecution stating: “[Evidence is going to show that, upon questioning, ... [Paulette] said, look [that is] not my packagef.]” Jefferson contemporaneously objected to the prosecutor’s opening statement. During trial the statement of Paulette was not introduced. The standard of review for an improper comment in opening statements 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.” Slaughter v. State, 815 So.2d 1122, 1130 (¶ 45) (Miss. 2002). The trial court instructed the jury that opening statements and the arguments made in them are neither evidence nor instructions on the law. The Mississippi Supreme Court has found that properly instructing the jury that opening statements are not evidence is generally sufficient to mitigate against attorneys stating what they expect the proof to show and the proof not following the expectation laid out in opening statements. Id. at 1131-32 (¶¶ 52-53). Thus, we find this claim is without merit.

B. Testimony

¶ 17. Jefferson asserts that the trial court erred by allowing eourse-of-investi-gation testimony from Edwards because the testimony contained information obtained from Paulette that should have been excluded as impermissible hearsay and a violation of his Confrontation Clause right to confront adverse witnesses.

¶ 18. Confrontation Clause objections are reviewed de novo. Birkhead v. State, 57 So.3d 1223, 1233 (¶ 35) (Miss. 2011) (citation omitted). Hearsay is “a statement that ... the declarant does not make while testifying at the current trial or hearing[,] and a party offers in evidence to prove the truth of the matter asserted in the statement.” M.R.E. 801(c). In general, hearsay is inadmissable unless otherwise provided by law. Hillard v. State, 950 So.2d 224, 229 (¶ 23) (Miss. Ct. App. 2007); M.R.E. 802. “Testimonial hearsay must be exposed to confrontation by way of cross-examination prior to reaching admissible status, while nontestimonial hearsay does not trigger the need for confrontation to be admissible.” Hillard, 950 So.2d at 229 (¶ 22).

¶ 19. An officer’s testimony being offered to explain why he or she acted as he or she did, and not for the truth of the matter asserted, is not hearsay and is admissible. Neal v. State, 15 So.3d 388, 404 (¶ 36) (Miss. 2009); see also Darnell v. Darnell, 167 So.3d 195, 202 (¶¶ 16-17) (Miss. 2014). Information obtained in the course of an investigation is admissible when it is for providing the basis of the investigation and ultimate arrest of the defendant. Kolberg v. State, 829 So.2d 29, 76-77 (¶¶ 133-34) (Miss. 2002) (overruled on other grounds).

¶ 20. Here, as part of Edwards’s testimony, she stated that, based on statements Paulette made to her at the' scene, she came to learn that individuals at the residence were supposed to contact Jefferson to let him know the package had arrived, that he was expected to come to the residence to retrieve the package, and that he was already en route to the location with his father. Jefferson’s counsel contemporaneously objected to Edwards’s reference to Paulette’s statement. The court overruled Jefferson’s objection on the basis that the statement was not being offered to prove the truth of the matter asserted, but to demonstrate why Edwards and her fellow agents acted as they did, justifying why they waited at the residence.

¶21. Edwards’s statements were not hearsay, nor were they testimonial of what Paulette said. Paulette did not testify at trial. Edwards’s testimony did not mention Paulette and was not used or admitted for what Paulette said, but to explain why the officers remained at the residence awaiting the arrival of Jefferson. Thus, we find that the circuit court was correct in holding that such testimony was admissible and not hearsay, as it was provided for the basis of why the agents acted as they did and was not offered for proof of the matter asserted. Thus, this issue is without merit.

¶ 22. Even if we were to find the testimony inadmissible, its admission at trial was harmless error. There was sufficient other evidence to prove that Jefferson conspired with Paulette to possess the marijuana: the package contained marijuana, Paulette accepted the package, Paulette stated to Riley that she was expecting a package, Paulette signed for the package using a false name, and Paulette threw the package to the ground after she spotted officers observing her receiving the package. Jefferson admitted to Edwards and Moser (1) that the marijuana was his, (2) that he had it sent to the house, and (3) that he intended to sell it in Mississippi, ail after Jefferson had signed a written Miranda waiver. Thus, we find this issue is without merit.

III. Denial of Jefferson’s Motion for a JNOV or New Trial

¶23. Jefferson asserts that the trial court erred in denying his motion for a JNOV or, in the alternative, a new trial because the evidence presented at trial was not legally sufficient and was against the overwhelming weight of the evidence for both the conspiracy and possession-with-intent-to-sell charges;

A. Sufficiency of the Evidence

¶ 24. The critical inquiry in addressing a challenge to the sufficiency of evidence “is whether the evidence shows beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support' a conviction.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss. 1968)). “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.” Id. (citing Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶25. On appeal, Jefferson asserts he never possessed the marijuana and that he did not conspire with Paulette to possess the marijuana. “Possession of a controlled substance may be actual or constructive.” Knight v. State, 72 So.3d 1056, 1063 (¶ 26) (Miss. 2011) (citing Dixon v. State, 953 So.2d 1108, 1112 (¶ 9) (Miss. 2007)). “Constructive possession may be established where the evidence, considered under the totality of the circumstances, shows that the defendant knowingly exercised control over the contraband.” Id. Admitting to ownership of the illegal substance is sufficient for possession. Mitchell v. State, 754 So.2d 519, 522 (¶ 10) (Miss. Ct. App. 1999). Jefferson admitted to ownership of the marijuana in his confession to Edwards and Moser as well as at the scene the day he was arrested. Further, he admitted that he arranged to have the marijuana sent to the house. We find there was sufficient evidence to support the jury’s finding that Jefferson possessed the marijuana. Thus, this issue is without merit.

¶26. To prove a conspiracy, the State must prove that “two or more persons agreed to commit a crime or agreed to accomplish an unlawful purpose.” Berry v. State, 996 So.2d 782, 787 (¶ 12) (Miss. 2008) (citations omitted); Miss. Code Ann. § 97-1-1 (Rev. 2014). No express or formal agreement need be proven. Berry, 996 So.2d at 787 (¶ 13). “A conspiracy can be proven by the acts and conduct of the alleged conspirators and can be inferred from the circumstances.” Id. Jefferson admitted that the package was his, that he sent the package to the house, and that he intended to take the marijuana and sell it. Paulette received the box from Riley, told Riley she was expecting a package, signed for it using a false name, and threw the package to the ground upon spotting the officers. Further, Jefferson arrived at the scene to collect the package and admitted ownership. The jury found, based on the acts and conduct of Paulette and Jefferson, that they conspired to possess the marijuana. We find that the evidence was sufficient to support the jury’s finding. Thus, this issue is without merit.

B. Weight of the Evidence

¶ 27. When reviewing a claim that a conviction is against the weight of the evidence, this Court 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, 895 So.2d at 844 (¶ 18) (citing Herring v. State, 691 So.2d 948, 957 (Miss. 1997)), A reversal on the grounds that the verdict was against the overwhelming weight of the evidence means that, “as the thirteenth juror, the court simply disagrees with the jury’s resolution of the conflicting testimony;” Id. (citing McQueen v. State, 423 So.2d 800, 803 (Miss. 1982)). “[The] difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves.” Id. “Instead the proper remedy is to grant a new trial.” Id.

¶ 28. At trial, evidence was presented that Jefferson confessed to ownership of the marijuana, that he had it sent to the house, and that he was going to sell it. Evidence was also presented demonstrating that Paulette said she was expecting a package, that she used a false name to sign for it, that she threw it to the ground when she spotted officers observing her, that Jefferson came to the house to get the package, and that Jefferson admitted ownership of the package. We agree with the decision of the jury. Thus, we find this issue is without merit.

CONCLUSION

¶ 29. We affirm the Madison County Circuit Court’s conviction of Jefferson for possession of marijuana with the intent to sell in an amount greater than one kilogram but less than five kilograms and for conspiracy to possess marijuana in an amount greater than one kilogram but less than five kilograms, and his sentence as a habitual offender.

¶ 30. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, POSSESSION WITH INTENT TO SELL ONE KILOGRAM BUT LESS THAN FIVE KILOGRAMS OF MARIJUANA, AND SENTENCE OF SIXTY YEARS AS A HABITUAL OFFENDER; AND COUNT II, CONSPIRACY TO POSSESS ONE KILOGRAM BUT LESS THAN FIVE KILOGRAMS OF MARIJUANA, AND SENTENCE OF FORTY YEARS AS A HABITUAL OFFENDER, WITH THE SENTENCES TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

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

      . Jefferson’s counsel contemporaneously objected to Layton’s testimony on anything that Jefferson said to Layton while he was in handcuffs unless Layton could prove that Jefferson had been read his Miranda rights, as he asserted Jefferson was under arrest and in handcuffs. The circuit court overruled the objection on the basis that the questioning was only to resolve the ambiguous situation of Jefferson's and his father's identities. Jefferson does not appeal the admission of Layton's testimony.

      . See also Parham Williams, Williams on Mississippi Evidence § 8.06[3] (2016).


author: FAIR, J.,

text:
    Bobby PEGUES, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00673-COA
    Court of Appeals of Mississippi.
    04/04/2017

      ATTORNEY FOR APPELLANT: BOBBY PEGUES (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF, THE ATTORNEY GENERAL, BY: JOSEPH SCOTT HEMLEBEN
    BEFORE GRIFFIS, P.J., FAIR AND WILSON, JJ.
   FAIR, J.,

FOR THE COURT:

¶ 1. In April 2015, Bobby Pegues pled guilty to two counts of sale of a controlled substance. He was sentenced to eight years on each count, to be served consecutively, with one year suspended from the second sentence. Pegues subsequently filed a motion for post-conviction relief alleging, among other things, that his indictment was defective because it failed to conclude with the words “against the peace and dignity of the state.” But Pegues’s indictment does, in fact, conclude with those words, so the circuit court dismissed the PCR motion without an evidentiary hearing. On appeal, we find no error and affirm.

STANDARD OF REVIEW

¶ 2. The circuit court may summarily dismiss a PCR motion without an evi-dentiary hearing “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss. Code Ann. § 99-39-11(2) (Rev. 2015). To succeed on appeal, the petitioner must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedurally alive. Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss. 1999).

¶ 3. Our review of the summary dismissal of a- PCR motion, a question of law, is de novo. Id.

DISCUSSION

1. Indictment—Constitutional Requirements

¶ 4. Pegues contends that his indictment violates Article 6, Section 169 of the Mississippi Constitution, which provides in relevant part that “all indictments shall conclude ‘against the peace and dignity of the state.’ ” Our courts have enforced this constitutional requirement, even though it has been called “idle and meaningless.” See McNeal v. State, 658 So.2d 1345, 1349 (Miss. 1995) (quoting Love v. State, 8 So. 465, 465 (Miss. 1891)).

¶ 5. While the concluding statement is, in fact, required, it is a matter of the form of the indictment. Such claims must be raised as a demurrer to the indictment and are waived by a valid guilty plea. Brandau v. State, 662 So.2d 1051, 1054-55 (Miss. 1995); see also Miss. Code Ann. § 99-7-21 (Rev. 2015). As Pegues did not object to his indictment prior to pleading guilty, this claim has been waived.

¶ 6. Notwithstanding the procedural bar, Pegues’s contention is plainly without merit. Each of the three counts of his indictment ends with the words “against the peace and dignity of the State of Mississippi.” While the redundancy is unnecessary, all counts of the indictment meet constitutional muster so long as the indictment concludes with the magic words, which this one does. See Stwitzer v. State, 828 So.2d 1277, 1279 (¶ 6) (Miss. Ct. App. 2002); see also Starling v. State, 90 Miss. 255, 266-67, 43 So. 952, 953 (1907).

¶ 7. This issue is without merit.

2. Indictment—Essential Elements

¶ 8. Pegues also claims that his indictment is defective because it fails to allege an essential element of the offenses—the name of the officer who arrested him. While we acknowledge that the failure to allege an essential element of the offense would not be procedurally barred, the name of the arresting officer is not an essential element of the offense of sale of a controlled substance. See Miss. Code Ann. § 41-29-139(a)(1) (Supp. 2016); Jenkins v. State, 308 So.2d 95, 96 (Miss. 1975).

3. Voluntariness of Guilty Plea

¶ 9. Pegues contends that his guilty plea was involuntary because the trial court allowed him to plead guilty to a defective indictment. We have already rejected Pe-gues’s arguments that his indictment was defective. Consequently we can find no merit to this issue.

4. Factual Basis

¶ 10. Pegues also argues, in a cursory fashion, that the trial court lacked a factual basis to accept his guilty plea. This contention was not raised in Pegues’s pleadings in the circuit court and is made for the first time on appeal. It is procedurally barred as a result. Gardner v. State, 531 So.2d 805, 808-09 (Miss. 1988).

5. Ineffective Assistance of Counsel

¶ 11. Pegues next contends that he received constitutionally ineffective assistance of counsel. This claim is largely based on his arguments regarding the sufficiency of his indictment, which we have previously found to be without merit. Pe-gues also claims that counsel failed to properly investigate his case and failed to recognize his defenses and factual innocence to the charges. On this point, Pe-gues’s contentions are supported only by his own assertions. A defendant’s assertions, standing alone, are insufficient to prove ineffective assistance of counsel. See, e.g., Mayhan v. State, 26 So.3d 1072, 1076 (¶ 10) (Miss. Ct. App. 2009).

6. Weight of the Evidence

¶ 12. We next address Pegues’s contention that his conviction was against the overwhelming weight of the evidence. Pegues contends that he had a valid prescription for the drugs, that he did not receive any money for them, and that he was heavily sedated at the time of the transfer. He also makes claims about the insufficiency of video and audio recordings to support the allegations against him.

¶ 13. This claim was waived by Pegues’s guilty plea. “A valid guilty plea waives the right to challenge the sufficiency of the State’s evidence.” Belton v. State, 138 So.3d 237, 239 (¶ 9) (Miss. Ct. App. 2014) (citation omitted).

7. Newly Discovered Evidence

¶ 14. Finally, Pegues briefly argues that there is newly discovered evidence he has “obtained from Peer State,” specifically that the officer who arrested him “was fired from [the] narcotics department for engaging in unlawful[ ] acts ... [and because of] allegations ... he was bringing up false charges on people.” Pe-gues offers but his own assertions in support of this contention, and he also fails to explain how the officer’s alleged misconduct in other cases would have caused a different result in his own case. We find that Pegues has not shown he is entitled to any relief on this issue.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      . Pegues pled guilty to Counts I and III.