author: RANDOLPH, PRESIDING JUSTICE,

text:
    Kale SCOTT a/k/a Kale Rashaud Scott v. STATE of Mississippi
    NO. 2015-KA-01623-SCT
    Supreme Court of Mississippi.
    06/29/2017

      ATTORNEY FOR APPELLANT: RODNEY A. RAY
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: KAYLYN HAVRILLA McCLINTON
    BEFORE RANDOLPH, P.J., COLEMAN AND MAXWELL, JJ.
   RANDOLPH, PRESIDING JUSTICE,

FOR THE COURT:

HI. Kale Scott was indicted for one count of aggravated assault, in violation of Section 97-3-7 of the Mississippi Code, and one count of murder, in violation of Section 97-3-19. Scott appeals the verdict of a Lowndes County jury, which found him guilty on both counts. Finding no error, we affirm his convictions and sentences.

STATEMENT OF THE FACTS AND PROCEDURE BELOW

¶2. On the evening of May 22, 2014, Scott attended a high school graduation party at the Lowndes County fairgrounds in Columbus, Mississippi. Approximately two hundred guests were in attendance, During the party, Frederick Smith was shot in the leg, and Devin Montgomery, who was shot five times in the back to the posterior of his body, succumbed to his injuries and died. Scott admitted he was the shooter.

¶3. During the trial, Jomoco “Ken” Har-riston testified that he was working as a security guard for Robinson Security the night of the graduation party. Harriston witnessed a fight break out near the stage between Scott and Montgomery. Harriston broke up the fight and then began escorting Scott toward the entrance of the building. Before he could get Scott out of the building, Harriston heard another fight break out behind him. Harriston let Scott go and went back to the same area where the original fight had occurred. Montgomery was involved in the second fight, so Harriston began to walk Montgomery to the entrance of the building. As Harriston was escorting Montgomery, Scott stepped out of a nearby crowd. Harriston estimated that Scott was about eight feet in front of Montgomery. Harriston testified that Montgomery was not attacking or threatening Scott in any way. Scott spoke to Montgomery, but Harriston testified that he and Montgomery continued walking, paying Scott no attention. Harriston then heard a “pow” and saw Montgomery jump, run away, and collide with a table. Harri-ston testified that it was extremely loud in the building because the speakers were still blaring. He heard only one shot. After Montgomery hit the table, Harriston saw him get up and run toward the exit, before Montgomery finally stopped, leaned against a wall, and slid down, leaving a trail of blood. Harriston ran out of the building to call 911.

¶4. Harriston testified that he never saw Scott with a gun, but he did see Scott tuck something into his front waistband after the shots were fired. Harriston never saw Montgomery or anyone else with a weapon.

¶5. Diesha Walker testified that she was on the staircase of the stage when the first fight broke out. Montgomery was standing on the floor, leaning up against the stage. Scott was standing on the stage behind Montgomery below. Scott accidentally spilled his beer on Montgomery while he was dancing on stage. Montgomery told Scott to “chill out.” Scott spilled his beer again before Montgomery grabbed Scott off the stage. Walker saw Harriston break up the fight and walk off with Scott. Walker testified that another man, Deándra Buck, hit Montgomery, and the two started fighting. Walker testified that she saw Scott reappear and pull out a gun and shoot. Walker stated that Scott appeared to hesitate after the first shot, but he continued shooting. Walker testified that at the time of the shooting, Montgomery was not a threat to Scott. Walker never saw Montgomery or anyone else with a weapon.

¶6. Fredrick Smith, Montgomery’s cousin, testified that he saw both fights involving Montgomery. When the security guard came to break up the second fight and take Montgomery away, Smith stayed behind and confronted the person who had been fighting Montgomery (Buck). As Smith was questioning Buck, he saw a man with a gun in his hand approaching him from the right. Smith then saw the man fire the gun. Smith testified that he heard four or five gunshots.

As I hear the first shot, I took off running. As I took off running on the side of me, I noticed Devin [Montgomery], He’s running on side of me as well. I hear another shot. That’s when I noticed — well, that’s when I noticed I was hit in the leg. I noticed I had got shot. As I got shot, I seen Devin fall, Well, I picked him up by his pants’ leg. And we proceeding to run. As we’re proceeding to running, I’m steady hearing gunshots go off. And I’m pushing people behind me or what not. But I’m steady hearing gunshots the whole time I was running.

Smith testified that he was shot in the back of his right thigh. Smith identified Scott as the shooter.

¶7. Dr. Erin Barnhardt, deputy chief medical examiner at the Mississippi State medical Examiner’s Office, was accepted as an expert in the field of forensic pathology. She testified that Montgomery had suffered five gunshot wounds and had died as a result of his injuries. Barnhardt testified that Montgomery had been at least three feet away from the shooter when he was shot.

¶8. Kevin McCrary, a law enforcement officer with the Columbus Police Department, testified that the weapon used in the shooting was never recovered. After interviewing Harriston and Walker, who both identified Scott as the shooter, McCrary began looking for Scott but was unsuccessful. Two days after the shooting, Scott turned himself in to the police. McCrary testified that Scott neither had any noticeable injuries nor complained of any injuries and was not in need of medical attention.

¶9. After the State rested, Scott moved for a directed verdict, which was denied.

¶10. Bernice Willis, Scott’s grandmother, testified that she had noticed several knots and bruises on Scott’s head immediately before he turned himself in to the police. She testified she did not notice these bruises on the afternoon of the graduation party. Willis agreed that she had not seen him between the party and when he turned himself in and that she did not know when he may have received the knots and bruises.

¶11. Shareka Tillman, a chaperone at the party, testified that when she first saw Scott at the party he appeared normal and she did not see him with a gun. After she heard commotion from the fight and then gunshots, she saw Scott standing in the middle of the floor. When she approached him, she saw he had knots on his head and appeared in a daze. He would not answer any of her questions about what had happened.

¶12. Scott testified on his own behalf. He said he was. at the graduation party with Buck and another friend. After Scott had entered the party, a friend of his told him he needed to get his cigarettes out of Scott’s car. Scott left the party, got the cigarettes, and came back inside. Scott testified that, while he was on the stage with two girls, Montgomery grabbed his leg and wanted to talk to him. Scott pushed away from Montgomery, but Montgomery pulled him off the stage, and the two began fighting. Montgomery then hit Scott on the shoulder, grabbed him by the pockets, and started going through his pockets. Scott testified that Montgomery pulled his shirt over his head and was hitting him in the head. Other people also started hitting Scott in the head. Scott said at that point “[he] lost it” and started shooting.

Q. So, you said you lost it. Describe what happened then?
A. I lost it where really from the lick— from the hits of my head, I was really dazed like. I didn’t know — I didn’t know what I was doing. I didn’t know what I was doing, sir,
Q. Did you in fact start shooting the gun?
A. Yes, sir.
Q. Do you know how many times you shot it?
A. I don’t know how many times I shot, sir. I couldn’t say.

Scott testified that, after the shooting, one of his friends had to drive him to his cousin’s house, because he “wasn’t 100 percent able to drive.” Buck gave the gun to Scott’s cousin. Scott did not call any of his family to let them know where he was until Sunday, when his family told him to meet them at the police station.

¶13. Scott testified that he brought a gun to the party because he had been picked on for many years, but he did not intend to harm anyone. He testified that he never intentionally aimed the gun at either Montgomery or Smith. Scott said that he was scared of Montgomery because he had experienced several bad encounters with Montgomery.

¶14. On cross-examination, Scott testified that he did not know why the two girls on the stage with him the night of the shooting were not at the trial to corroborate his story. He agreed that it was irresponsible to shoot a gun in a crowded room. Scott testified that he did not remember being removed from the fight by Harriston or that there was a subsequent fight between Buck and Montgomery.

¶15. The State also introduced a number of tweets that had originated from Scott’s account. Most of the tweets were about shooting people and homicide. Scott testified that many of the tweets were song lyrics but that he did mean some of them.

¶16. The State called several rebuttal witnesses. Buck testified that when he heard gunshots, he ran to Scott’s car. Buck testified that Scott drove and that he was acting normally and was not dazed. Scott dropped Buck off at his house, and then Scott drove away.

¶17. Angela Williams testified that both Scott and Montgomery were at her house almost every day. However, she said, Montgomery never picked on Scott while at Williams’s house.

1Í18. Cortney Williams, Montgomery’s best friend and Scott’s cousin, testified that he did not see the fights, but he talked to Montgomery immediately after they occurred. Williams recalled that he was approximately five feet away from Montgomery when he first heard the gunshots. Both men started running to exit.

Q. .. .What did you see while you were running?
A. Kale and D [Montgomery] — well D was saying — I asked D like — because at first he was walking like he was saying he got hit in the arm. And I was like who shot you? He was like Kale.
Q. All right. What did you see? Did you see Kale at all?
A. Yes, sir.
Q. Where was Kale Scott?
A. In the middle of the floor.
Q. What was he doing when you saw him?
A. ■ Holding the gun.

Williams testified he never saw anyone else with a weapon that night.

¶19. The State finally rested, and the Lowndes County jury found Scott guilty of both aggravated assault and murder. As to Count I, Scott was sentenced to a term of twenty years, with ten suspended, and five years’ post-release supervision. As to Count II, he was sentenced to a term of life imprisonment. The sentences are to be served consecutively.

¶20. Scott filed separate motions for Judgment Notwithstanding the Verdict of the Jury (JNOV) as to each count, alleging that the jury verdict was against the overwhelming weight of the evidence, inter alia. Both motions were denied. Scott timely filed his appeal.

STATEMENT OP THE ISSUES

I. WHETHER THERE WAS SUFFICIENT EVIDENCE TO SUSTAIN THE CONVICTION OF THE JURY.

II. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

ANALYSIS

I. There was sufficient evidence to sustain the conviction of the jury.

¶21. The standard of review for the legal sufficiency of the evidence is as follows:

this Court will reverse and render only if the facts and inferences “‘point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,’ .... ” The evidence will be deemed sufficient if “ ‘having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,’ .... ” The relevant question is whether “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ”
This Court considers the evidence in the light most favorable to the state. The state receives the benefit of all favorable inferences that may reasonably be drawn from the evidence.

Hardy v. State, 137 So.3d 289, 303-04 (Miss. 2014) (quoting Hughes v. State, 983 So.2d 270, 275-76 (Miss. 2008) (internal citations omitted)).

¶22. Scott argues that the evidence presented was insufficient to support the guilty verdicts because the State failed to establish that he was not acting in self-defense. Scott contends that his testimony proved that he had been struck in the head several times and began firing his gun to stop the attack.

¶23. When the evidence was viewed in the light most favorable to the State, there was more than sufficient evidence to support the jury’s guilty verdict. Scott was indicted for murder pursuant to Section 97-3-19 of the Mississippi Code, which reads that “[t]he killing of a human being without the authority of law ... when done with deliberate design to effect the death of the person killed, or of any human being, shall be first-degree murder ,... ” Miss. Code Ann. § 97-3-19 (Rev. 2014).

Deliberate has been defined as “full awareness of what one is doing, and generally implies careful and unhurried consideration of the consequences.” Design has been defined as “to calculate, plan, contemplate.” Deliberate design “may be formed very quickly, and perhaps only moments before the act of consummating the intent.”

Bowser v. State, 182 So.3d 425, 430 (Miss. 2015), reh’g denied (Jan. 28, 2016) (quoting Jones v. State, 39 So.3d 860, 865-66 (Miss. 2010)). Scott also was indicted for one count of aggravated assault pursuant to Section 97-3-7, which reads that “[a] person is guilty of aggravated assault if he ... (ii) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm,... ” Miss. Code Ann. § 97-3-7(2)(a)(ii) (Rev. 2014)

¶24. Testimony from several witnesses evinced that Montgomery was trying to run away from Scott and posed no threat when he was shot from behind. Although Scott’s testimony contradicts this version of events, his testimony was not sufficient to convince the jury that he was acting in self-defense.

¶25. The jury is allowed “to draw reasonable inferences from facts based on experience and common sense.” Howell v. State, 860 So.2d 704, 739 (Miss. 2003). Further, “the jury is the sole judge of the credibility of witnesses, and the jury’s decision based on conflicting evidence will not be set aside where there is substantial and believable evidence supporting the verdict.” Nicholson v. State, 523 So.2d 68, 70 (Miss. 1988). In this case, the evidence supported the State’s theory that Montgomery was trying to leave the venue and did not engage with Scott when Scott shot Montgomery five times and shot Smith once. Furthermore, there was testimony that Scott was not as severely beaten as he testified, nor was he so dazed and confused that he could not drive his car after .the shooting. Ultimately, the jury decided that there was sufficient evidence to support both guilty verdicts and refute Scott’s claim of self-defense. This issue is void of merit.

II. Whether the verdict was against the overwhelming weight of the evidence.

¶26. When considering a challenge to the weight of the evidence, we review the evidence in the light most favorable to the verdict. Herring v. State, 691 So.2d 948, 957 (Miss. 1997). “[W]e 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, 896 So.2d 836 (Miss. 2005) (citations omitted).

¶27. Scott argues that allowing his conviction to stand would sanction an unconscionable injustice because the evidence shows that he did not have the intent required for murder. He claims that he did not initiate any confrontation, he tried to remove himself from the fight, and Montgomery struck him first, He also argues that two witnesses testified that, immediately before the shooting, Scott had no injuries, and immediately after, he had several bruises and knots on his head.

¶28. No witnéss corroborated Scott’s testimony that he was severely beaten and shot his gun only to stop the attack. All other witnesses testified that Montgomery was unarmed and on his way to the exit when he was approached by Scott. Several witnesses watched Scott return to the area of the fight after he had been escorted away by Harriston. .Montgomery’s injuries prove that he was shot in the back from a distance of at least three feet.

¶29. Scott testified that he waited two days to turn himself in to the police, choosing to remain at a cousin’s house without alerting even his family as to where he was staying. Scott also .testified he gave his cousin the weapon after the shooting. The jury, tasked with determining witness credibility, found Scott guilty, and its guilty verdict is supported by the overwhelming weight of the evidence. This issue is void of merit.

CONCLUSION

¶30. Scott’s conviction and sentence are affirmed, as both were supported by convincingly sufficient evidence and were not contrary to the overwhelming weight of the evidence.

¶31. AFFIRMED.

WALLER, C.J., DICKINSON, P.J., KITCHENS, KING, COLEMAN, MAXWELL, BEAM AND . CHAMBERLIN, JJ., CONCUR.

      . He testified that neither Scott nor Montgomery looked seriously injured.

      . Montgomery was shot in the right forearm, the back of his right upper arm, the right side of his back, his right and left buttocks, and the back of his left arm.


source: Caselaw Access Project

license: Public Domain

text:
    BUILDERS AND CONTRACTORS ASSOCIATION OF MISSISSIPPI, Home Builders Association of Mississippi, AmFed Casualty Insurance Company and AmFed Companies, LLC v. LASER LINE CONSTRUCTION COMPANY, LLC
    NO. 2016-IA-00397-SCT
    Supreme Court of Mississippi.
    06/29/2017
    ATTORNEY FOR APPELLANTS: H. WESLEY WILLIAMS, III
    ATTORNEYS FOR APPELLEE: MITCHELL HARRY TYNER, STEVE C. THORNTON
    BEFORE RANDOLPH, P.J., COLEMAN AND MAXWELL, JJ.
   RANDOLPH, PRESIDING JUSTICE,

FOR THE COURT:

¶ 1. Laser Line Construction Company, LLC, (“Laser Line”) purchased statutory workers’ compensation insurance coverage from the Builders and Contractors Association of Mississippi (“BCAM”) Self Insurers’ Fund. Because Laser Line was a general contractor, BCAM sought premium payments for all employees of Laser Line’s subcontractors who did not independently secure workers’ compensation coverage. Laser Line refused to pay premiums for employees of subcontractors who had fewer than five employees and claimed they were thus exempt from the coverage requirement. BCAM canceled Laser Line’s coverage for nonpayment. Laser Line filed suit for damages and a declaratory judgment. The defendants answered, and BCAM separately filed a counterclaim. The parties filed competing summary judgment motions. The trial court granted Laser Line a partial summary judgment on the statutory interpretation issue. BCAM sought and was granted permission to file this interlocutory appeal.

FACTS AND PROCEDURAL HISTORY

¶2. Laser Line purchased statutory workers’ compensation coverage from BCAM for three consecutive one-year periods — July 27, 2009, to July 27, 2012. According to the coverage agreement, the initial premium was an estimate based on Laser Line’s expected remuneration during the policy period, with the final premium being calculated after the end of the policy period by an audit looking back at Laser Line’s actual payments or contracts.

¶ 3. On September 1, 2011, AmFed audited Laser Line’s records of actual payments for the July 27, 2010-July 27, 2011, coverage period. In that audit, Laser Line provided the auditor with records showing amounts Laser Line had paid subcontractors during the policy period and also provided certificates from each subcontractor certifying that it was exempt under the Workers’ Compensation Act.

¶ 4. In response to the audit, BCAM assessed Laser Line an additional premium charge of $12,006 for the coverage period, relying on the amounts Laser Line had paid to the putatively exempt subcontractors. BCAM demanded that Laser Line purchase coverage for all its exempt subcontractors unless those subcontractors independently had secured workers’ compensation coverage. Laser Line refused to pay the additional premium. In response, BCAM canceled Laser Line’s coverage for the period then in effect (July 27, 2011-July 27, 2012). Laser Line then filed suit for breach of contract (including breach of the covenant of good faith and fair dealing), a declaratory judgment, and defamation. BCAM filed a counterclaim for damages.

¶ 5. The parties filed competing motions for summary judgment. The trial court partially granted Laser Line’s motion and denied BCAM’s motion: “Because every one of Laser Line’s subcontractors was certified to be exempt under [the Act], Defendants had no contractual basis to demand additional premium[s] for Laser Line’s exempt subcontractors or to cancel Laser Line’s Coverage Agreement.” BCAM sought and was granted permission to file this interlocutory appeal.

ISSUE

¶ 6. The sole issue on appeal is whether Mississippi Code Section 71-3-7 requires general contractors to secure workers’ compensation coverage for employees of its subcontractors who are exempt from the Workers’ Compensation Act.

STANDARD OF REVIEW

¶7. “The standard of review for summary judgment motions is de novo.” United States Fid. & Guar. Co. v. Martin, 998 So.2d 956, 962 (Miss. 2008).

ANALYSIS

¶ 8. This is not the first time this Court has been called upon to interpret Section 71-3-7. When the Mississippi Workers’ Compensation Act was first passed in 1948, the relevant statute read, “In the case of an employer who ,is a subcontractor, the contractor shall be liable for and shall secure the payment of such compensation to employees of the subcontractor unless the subcontractor has secured such payment.” Miss. Laws 1948, ch. 354, § 4. Employers who employed fewer than eight employees were exempt from the Act. Miss. Laws 1948, ch. 354, § 3. This Court was asked to interpret and apply these sections in Mills v. Barrett, 213 Miss. 171, 56 So.2d 485 (1952). Barrett, an employee of Jones (the subcontractor), was injured during the course and scope of his employment. Id. at 485-86. Barrett filed a claim for compensation against Mills (the contractor). Id. Jones was exempt from the Act because he employed fewer than eight employees. Id. at 486. Mills argued that, because Jones was exempt, it too was exempt. Id. This Court disagreed:

We are of the opinion that Barrett, an employee of Jones, the subcontractor of Mills, the principal or general contractor, comes within the provisions of the [Act]. The language is plain, clear, and unambiguous, and has the effect of making the employees of a subcontractor, where the subcontractor does not carry insurance for the protection of his employees, the employees of the principal or general contractor within the mean-' ing of the compensation act. It is obvious that the purpose of the legislature was to prevent the general contractor from escaping liability by employing subcontractors who were -not financially responsible and leaving employees unprotected.

Id. at 486-87.

¶ 9. The Mills Court noted that the Legislature had amended the law in 1950 by adding: “In such cases the number of employees of the subcontractor and not the contractor shall 'be the factor determining liability,” Id. at 487 (quoting Miss. Laws 1950, ch. 412, § 3). Mills argued that the amendment “was passed to clarify any ambiguity in the act, although it is conceded by [Mills] that none existed.” Id. This Court rejected that argument. See id. (“Rather do we think that the legislature in passing this amendment strengthens our position as it would have been a vain thing indeed to amend that which was already unambiguous and needed no amending.”).

¶ 10. This Court applied the 1950 amendment in Jackson v. Fly, 215 Miss. 303, 60 So.2d 782 (1952). In December 1950, Fly, an employee of Beach (the subcontractor), was injured during the course and scope of his employment. Id. at 306, 60 So.2d 782. Fly filed a workers’ compensation claim against Jackson (the contractor). Id. at 304, 60 So.2d 782. The Court noted that, pursuant to the amendment, Fly had to show that Beach employed eight or more employees. See id. at 305, 60 So.2d 782 (“It will be seen from [the 1950 amendment] that [e]very person that has in service eight or more workmen ... subject to the exclusions therein named, is required to provide compensation for his employees. And, if. he has eight or more such workmen and is a subcontractor and fails to secure the payment of such benefits, the primary contractor must do so

¶ 11. The statute was amended again in 1958. The 1950 amendment was stricken, and the statute was returned to its original, 1948 form. Compare Miss. Laws 1958, ch. 454, § 1, to Miss. Laws 1948, ch. 354, § 4. The provision remains unchanged today. See Miss. Code Ann. § 71-3-7(6) (Rev. 2011) (“In the case of an employer who is a subcontractor, the contractor shall be liable for and shall secure the payment of such compensation to employees of the subcontractor, unless the subcontractor has secured such payment.”).

¶ 12. As the statute was returned to— and remains in — its original, 1948 form, Mills controls. Here, Laser Line, a general contractor, chose to use subcontractors who employed fewer than five employees and who did not secure workers’ compensation coverage. Consistent with the statute and this Court’s interpretation and application of that statute, an employee of the subcontractor of the general contractor comes within the provisions of the Act. The language has the effect of making the employees of a subcontractor, where the subcontractor does not carry insurance for the protection of its employees, the employees of the general contractor within the meaning of the Workers’ Compensation Act— thus requiring Laser Line to secure workers’ compensation coverage for the employees of its uninsured subcontractors. See Mills, 56 So.2d at 486-87; Miss. Code Ann. § 71-3-7.

CONCLUSION

¶ 13. Section 71-3-7 mandates that general contractors secure workers’ compensation coverage for the employees of its uninsured subcontractors. Consistent with the unambiguous language of the statute and this Court’s prior opinions, the number of employees of the subcontractor is not a factor in determining general-contractor liability under the Act. Thus, the trial judge’s contrary ruling was in error.

¶ 14. The Hinds County Circuit Court order granting Laser Line partial summary judgment and denying B CAM’s motion for summary judgment is reversed. We remand this case to that court for further proceedings consistent with this opinion,

¶ 15. REVERSED AND REMANDED.

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

      , The facts of this case, as to the issue before us, generally are not in dispute.

      . Regarding "remuneration,” the Coverage Agreement provided:
      Premium for each work classification is determined by multiplying a rate times a premium basis. Remuneration is the most common premium basis. This premium basis includes payroll and all other remuneration paid or payable during the period of this Agreement for the services of:
      1) All of your officers and employees engaged in work covered by this Agreement; and
      2) All other persons engaged in work that could make us liable under Section 1 (Statutory Workers’ Compensation Coverage-Part A) of this Agreement. If you do not have payroll records for these persons the contract price for their services and materials may be used as the premium basis. This paragraph (2) will not apply if you give us proof that the employers of these persons lawfully secured their workers’ compensation obligations.

      .AmFed Companies, LLC, ("AmFed”) provides claims services, underwriting services, and billing and collection services to BCAM.

      . The 1950 amendment did not apply to Barrett because.the amendment went into effect April 6, 1950, and Barrett’s injury occurred on March 31, 1950. Id. at 487.

      . In 1972, the threshold number of employees that subjects an employer to the provisions of the Act was reduced from eight to five, Compare Miss. Laws 1972, ch. 522, § 1, to Miss. Laws 1970, ch. 455, § 1, Today, the threshold remains at five. See Miss. Code Ann. § 71-3-5.


author: MAXWELL, JUSTICE,

text:
    Ronald SHINSTOCK a/k/a Ronald Joseph Shinstock a/k/a Ronald J. Shinstock v. STATE of Mississippi
    NO. 2016-KA-00963-SCT
    Supreme Court of Mississippi.
    6/29/2017

      OFFICE OF THE STATE PUBLIC DEFENDER BY: MOLLIE MARIE McMILLIN GEORGE T. HOLMES, ATTORNEYS FOR APPELLANT.
    OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA McCLINTON, ATTORNEY FOR AP-PELLEE.
    BEFORE RANDOLPH, P.J., COLEMAN AND MAXWELL, JJ.
   MAXWELL, JUSTICE,

FOR THE COURT:

¶ 1. Ronald Shinstock appeals his sale-of-methamphetamine conviction. He argues the trial court should have excluded some of the State’s evidence based on an alleged Fourth Amendment violation. But Shinstock concedes he never asserted a Fourth Amendment claim in the trial court. So he forfeited this issue. And the record does not support a, finding of plain error. The record also does not sufficiently support Shinstock’s only other appellate claim — ineffective assistance of counsel. So we decline to address this issue on direct appeal.

¶ 2. We therefore affirm Shinstock’s conviction and sentence.

Background Facts and Procedural History

¶ 3. When Rankin County sheriffs deputies found William Valentine in possession of methamphetamine, they offered Valentine the option to work off his charges by participating in a controlled buy from his supplier. Valentine agreed and called his dealer, Shinstock, to set up a buy. Deputies then outfitted Valentine with a hidden camera and $260 in cash to buy an “eight ball” of methamphetamine.

¶ 4. Valentine and Investigator Brett McAlpin drove to Shinstock’s neighborhood. McAlpin waited in a wooded area near Shinstock’s house while Valentine went inside the house and exchanged the cash for drugs. After the deal, Valentine drove to a nearby school where he met another officer, Deputy Tyson. Valentine turned over the drugs to Tyson, who then drove to Shinstock’s house to meet McAl-pin.

¶ 5. The two officers entered Shinstock’s house to arrest him. Following the arrest, they searched Shinstock’s person and found $260 in bills matching the serial numbers of the buy money given to Valentine. They also recovered a set of digital scales from the master bedroom. The Mississippi Crime Laboratory later confirmed the substance Shinstock sold Valentine was 2.8 grams of methamphetamine, a Schedule II controlled substance. And the county tax assessor established the sale occurred within 1,500 feet of a church.

¶6. At trial, the State introduced the drugs and scales, without objection. McAl-pin also testified about finding the $260 in marked bills on Shinstock when he arrested him after the deal. The jury found Shinstock guilty of selling more than two grams but less than ten grams of methamphetamine near a church. Because Shin-stock was a habitual offender, he was sentenced to the mandatory maximum, which was forty years, based on Section 41-29-142’s sentencing enhancement.

¶ 7. Shinstock has timely appealed. He raises two issues:

(1) His Fourth Amendment right to be free from an illegal arrest was violated when police officers entered his home without a warrant to ar- ■ rest him and confiscate evidence.
(2) His trial counsel was constitutionally ineffective in failing to file a motion to suppress the evidence gathered during his illegal arrest.

Discussion

I. Warrantless Arrest

¶8. The Fourth Amendment to the United States Constitution and Article 3, Section 28 of the Mississippi Constitution protect individuals from unreasonable searches and seizures. U.S. Const. amend. IV; Miss. Const. art. 3, § 23. A warrant-less search or seizure in a person’s home is “presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980)). To overcome this presumption, the government has the burden to demonstrate “exigent circumstances” necessitated the warrant-less entry. Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct. 2091, 2098, 80 L.Ed.2d 732 (1984).

II9. Shinstock claims the entry into his home to .arrest him and subsequent search were warrantless and thus unreasonable. He also suggests there were no “exigent circumstances” to justify the intrusion. Based on this alleged Fourth Amendment violation, he argues the evidence seized following his arrest should have been excluded as inadmissible “fruit of the poisonous tree.” See Marshall v. State, 584 So.2d 437, 438 (Miss. 1991) (citing Murray v. United States, 487 U.S. 533, 536, 108 S.Ct. 2529, 2533, 101 L.Ed.2d 472 (1988)) (explaining the “fruit of the poisonous tree” doctrine — also known as the exclusionary rule — deems inadmissible any evidence obtained incident to an unlawful search or seizure). But Shinstock did not make this argument before or during trial. He readily admits he never moved to suppress any of the State’s evidence or otherwise raised a Fourth Amendment challenge in the trial court. So he clearly forfeited this issue and cannot raise it for the first time on appeal. See United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

¶ 10. “The rule that failure to object” at trial bars raising the issue on appeal “applies to Fourth Amendment claims as well.” Walker v. State, 913 So.2d 198, 224 (Miss. 2005) (citing Stevens v. State, 458 So.2d 726, 730 (Miss. 1984)). In Walker, a- death-penalty case, the defendant argued the evidence found in his car was inadmissible because the traffic-stop leading to the search was illegal. But “[a]t no time at trial did Walker claim that the stop itself 'was pretextual, thereby rendering inadmissible the ... items discovered.” Id. at 225. So we found “this assignment of error ... procedurally barred from review by this Court.” Id. See also Thornton v. State, 724 So.2d 1003, 1005 (Miss. Ct. App. 1998)) (holding the defendant was barred from raising a Fourth Amendment challenge on appeal because he “did not object nor file a motion to suppress to the admission of the contraband at trial”).

¶ 11. Still, Shinstock asks this Court to find the judge committed plain error in admitting evidence seized following his arrest — evidence he did not attempt to suppress at trial. “Under the plain-error doctrine,” this Court “can recognize obvious error which was not properly raised by the defendant and which affects a defendant’s ‘fundamental, substantive right.’ ” Conners v. State, 92 So.3d 676, 682 (Miss. 2012) (quoting Smith v. State, 986 So.2d 290, 294 (Miss. 2008)). But in this case, the record reveals no obvious error.

¶ 12. “That which is not visible cannot be ‘plain.’ ” Sykes v. United States, 373 F.2d 607, 613 (5th Cir. 1966). And from this record, we see nothing to support Shin-stock’s claim. The record neither shows the search was legal or illegal. See id. at 612 (“There is nothing conclusive in the evidence establishing either the legality or illegality of the arrest”). Because Shin-stock never challenged the search, the record was not developed. So we are without evidence to carry out the case-by-case, fact-intensive inquiry of whether the search was legal. There is simply nothing for our appellate review.

¶ 13. “The burden of showing that the error was committed, and is not mere speculation, is on the appellant.” Id. at 612-13. But here, speculation is all Shin-stock offers. He asks us to assume the search was illegal because there is no record proof of a warrant or a warrant exception. To ‘ accept Shinstock’s reasoning would penalize the State for not introducing evidence to justify the search, when he failed to challenge the legality of it. See id. at 613. And it is not our role to speculate what the State “would or could have proved” — or rather would or could not have proved — “by way of explanation and justification.” Id.

¶ 14. For this reason, we find no plain error.

II. Ineffective Assistance of Counsel

¶ 15. Alternatively, Shinstock argues his trial counsel was constitutionally ineffective because she did not file a motion to suppress. See U.S. Const. amend.VI (providing “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence”). But “[i]t is unusual for this [CJourt to consider a claim of ineffective assistance of counsel when the claim is made on direct appeal,” because “there is usually insufficient evidence within the record to evaluate the claim,” Wilcher v. State, 863 So.2d 776, 825 (Miss. 2003) (quoting Aguilar v. State, 847 So.2d 871, 878 (Miss. Ct. App. 2002)).

¶ 16. Such is the case here. The record is not sufficient to evaluate Shin-stock’s ineffective-assistance-of-counsel claim. “[T]he failure to file a suppression motion does not constitute per se ineffective assistance of counsel[.]” Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 2587, 91 L.Ed. 2d 306 (1986). And Shinstock points to nothing else in the record to support his ineffective-assistance claim.

¶ 17. In other words, the mere failure to file a motion to suppress, in and of itself, cannot support Shinstock’s claim his counsel was constitutionally ineffective. And “where the record cannot support an ineffective assistance of counsel claim on direct appeal, the appropriate conclusion is to deny relief, preserving the defendant’s right to argue the same issue through a petition for post-conviction relief.” Wilcher, 863 So.2d at 825.

¶ 18. For this reason, we deny Shinstock relief ■ on his ineffective-assistance claim but preserve his right to raise this issue in a motion for post-conviction relief. We affirm the judgment of conviction and sentence of the Rankin County Circuit Court.

¶ 19. AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING, COLEMAN, BEAM AND CHAMBERLIN, JJ„ CONCUR.

      . Mississippi Code Section 41-29-139(b)(1)(B) (Supp. 2016) imposes a maximum twenty-year sentence for the knowing sale of more than two but less than ten grams of a Schedule II substance. Mississippi Code Section 41-29-142 (Rev. 2013) enhances Section 41-29-139's penalty up to twice the amount — or forty years' imprisonment — for violations occurring within 1,500 feet of a church. And the habitual-offender provision of Mississippi Code Section 99-19-81 (Rev. 2015) mandates persons who have been convicted of felonies twice previously and sentenced separately to one year or more in prison be sentenced to the maximum term of imprisonment, in this case forty years.


author: COLEMAN, JUSTICE,

text:
    Cortaia WASHINGTON v. STATE of Mississippi
    NO. 2015-KA-01702-SCT
    Supreme Court of Mississippi.
    06/29/2017
    ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER, BY: MOLLIE MARIE McMILLIN, MICHELE PURVIS HARRIS, GEORGE T. HOLMES
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: SCOTT STUART
    DISTRICT ATTORNEY: ROBERT SHULER SMITH
    BEFORE RANDOLPH, P.J., COLEMAN AND MAXWELL, JJ.
   COLEMAN, JUSTICE,

FOR THE COURT:

¶ 1. Following a trial, a jury in the Hinds County Circuit Court, First Judicial District, found Cortaia Washington guilty of intimidating a witness in violation of Mississippi Code Section 97-9-55. The circuit court sentenced Washington to serve two years in the custody of the Mississippi Department of Corrections, with two months suspended and credit for time served. The circuit court denied Washington’s post-trial motions, and she appeals, challenging the weight of the evidence. Discerning no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On March 21, 2012, Freda Austin testified as a State’s witness in the trial of Cortez Washington, who later was found guilty of armed robbery. As she was testifying, Austin recognized a woman in the audience as a regular customer at the local store where she worked. The woman, later identified as Ashley Bryant, is Cortez Washington’s aunt. Later the same day, an “angry” and “bothered” Bryant went to the store and asked to speak to Austin. Bryant was informed that Austin was not there because she had been testifying in court.

¶ 3. The following day, Bryant and Cort-aia Washington, Cortez Washington’s sister, returned to the store and asked the store manager if they could speak to Austin. The manager testified that she knew why the women were there and that they needed to leave; however, before she could get them to leave, Austin came from the back area where she had gone to get some pain reliever. Upon seeing Austin, Bryant started yelling at Austin about the case and her testimony. The store manager positioned herself between Austin and the two women, but Bryant was able to reach around her and hit Austin in the face. The store manager pushed Bryant away, and it was then that Washington took the opportunity to attack Austin. The testimony at trial was that Washington punched Austin several times and pulled out some of her hair. The incident lasted only a couple of minutes before Bryant and Washington left the store. Austin testified that she was not afraid at the time of the incident because “it happened so fast. ... [a]nd being afraid, probably, happened after the situation ended. But at the time I was protecting myself.” Austin also testified that she believed the incident occurred only because she had testified at Cortez Washington’s trial.

¶4. Bryant and Washington originally were tried together, but the jury was unable to reach a verdict. They were then tried separately. Prior to the second trial, the State and Washington moved the circuit court to enter an order of nolle prose-qui in the case; however, the circuit court denied the motion based on the public interest in deterring the type of activities that occurred. For the same reason, the circuit court also did not accept a plea recommendation from the State. After deliberations, the jury returned a guilty verdict, finding that Washington’s actions toward Austin violated Section 97-9-55. Washington filed a motion for a judgment notwithstanding the verdict, or alternatively, for a new trial, which the circuit court denied.

¶ 5. Washington appeals and raises the following issue for our review: whether the circuit court “erred in failing to grant the motion for [a] new trial as the verdict was against the overwhelming weight of the evidence.”

ANALYSIS

¶ 6. A motion for a new trial is a challenge to the weight of the evidence; therefore, we review the circuit court’s denial of a motion for a new trial using the abuse of discretion standard. Dilworth v. State, 909 So.2d 731, 737 (¶20) (Miss. 2005) (citing Howell v. State, 860 So.2d 704, 764 (¶ 212) (Miss. 2003)). The Court views the evidence in the light most favorable to the verdict and reverses only if the verdict 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 (¶¶ 18-19) (Miss. 2005).

¶7. According to Washington, the jury’s verdict was against the overwhelming weight of the evidence because the “evidence shows only that Washington went, to the store with her aunt” to ask “what Austin had gotten out of testifying against Cortez [Washington].” Washington further states that “[t]he testimony at trial shows, that Washington went with her aunt to confront Austin about why she had testified, but nothing in the record suggests that they went to the store with the intent to retaliate against Austin or to threaten her.” Washington, also strenuously argues that she was just a bystander, who did not say anything to Austin and did not initiate the fight. She seems to justify her actions by claiming that she did not get involved until after the store manager had pushed Bryant: “There is no evidence that Washington’s actions in joining the fight was [sic] in retaliation for Austin testifying against Cortez, rather than a reaction to her aunt being pushed at the beginning of the fight.”

¶ 8. Washington’s conviction is based on a violation of Mississippi Code Section 97-9-55 (Rev. 2014), which reads, in pertinent part, as follows:

If any person ... by threats, force or abuse, attempt to intimidate or otherwise influence a ... witness ., in the discharge of his duties, or by such force-, abuse or reprisals or threats thereof after the performance of such duties ... he shall, upon conviction, be punished by imprisonment not less than one . '(1) month in the'county jail nor more than two (2) years in the state penitentiary or by a fine not exceeding five hundred dollars ($500.00), or both such fíne and imprisonment.

(Emphasis added.) As explained above, Washington earnestly argues that her silence beforehand and her participation only after her aunt was pushed by the store manager somehow obviates the evidence presented that she accompanied her aunt to Austin’s place of employment with the specific intention to talk to Austin about the case and then ended up physically assaulting Austin the day after she had testified against Cortez Washington. Further, Washington’s, claim that her involvement in the fight was in response to her aunt being pushed does not hold much water, since it was the store manager, not Austin, who pushed Bryant. It does not follow that Washington would attack Austin when Austin' was not the person who pushed Bryant.

¶ 9/Though'Washington claims that she did not intend to intimidate or assault Austin when she went looking for her, “[i]ntent to do an act or commit a crime is also a question of fact to be gleaned by the jury from the facts shown in each case, The intent to commit a crime or to do an act by a free agent can be determined only by the act itself, surrounding circumstances, and expressions made by the actor with reference to his intent,” Shanklin v. State, 290 So.2d 625, 627 (Miss. 1974); The jury viewed the evidence surrounding the incident and determined that Washington had violated Section 97-9-55 by attempting to intimidate Austin when she sought out Austin, specifically about her testifying, and then assaulted Austin without any real justification, beyond the fact that Austin had testified against Cortez Washington the previous day. Her only connection to Austin is that Austin had testified against Cortez Washington. The jury’s verdict is fully supported by the evidence; therefore, the jury verdict was not against the overwhelming weight of the evidénce

CONCLUSION

¶ 10, To summarize, the day after Austin testified against Washington’s brother, Washington went with Bryant to Austin’s place of employment with the intent to confront Austin about her testimony or what she “got” for testifying. Washington did not say anything to Austin; instead, she took an opportunity to physically assault Austin, a person she had never met until Cortez Washington’s trial, when the store manager moved out of the way. The jury found that Washington’s actions clearly fell within the ambit of Section 97-9-55. We agree and hold that the jury’s verdict is not against the overwhelming weight of the evidence such that allowing the verdict to stand would sanction an unconscionable injustice. We affirm.

¶ 11. AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.


text:
    James Wesley SCOTT v. STATE of Mississippi
    2014-CT-00572-SCT
    Supreme Court of Mississippi.
    Filed: 03/13/2017
    Closed: 06/15/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari — Granted


text:
    Kenneth D. MCDUFF, Jr. v. Teresa B. MCDUFF
    2015-CT-00040-COA
    Supreme Court of Mississippi.
    Filed: 03/21/2017
    Closed: 06/15/2017
   Motion Desc: Kenneth D. McDuff, Jr. Petition For Writ of Certiorari

Certiorari — Denied


text:
    Tavaris COLLINS v. STATE of Mississippi
    2015-CT-00848-COA
    Supreme Court of Mississippi.
    Filed: 3/28/2017
    Closed: 6/22/2017
   Motion Desc: Collins Writ of Cert.

Certiorari — Denied


text:
    Ronald Wade BETTS v. Belinda Moucha BETTS
    2014-CT-01024-COA
    Supreme Court of Mississippi.
    Filed: 03/28/2017
    Closed: 06/01/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari — Denied


text:
    Marlon LITTLE v. STATE of Mississippi
    2014-CT-01505-SCT
    Supreme Court of Mississippi.
    Filed: 03/30/2017
    Closed: 06/15/2017
   Motion Desc: Petition for Writ of Cer-tiorari Little v. State 2014-1505

Certiorari — Granted


text:
    Edward SPRINGER v. AUSBERN CONSTRUCTION CO., INC.
    2014-CT-01190-SCT
    Supreme Court of Mississippi.
    Filed: 03/29/2017
    Closed: 06/01/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari — Granted


text:
    CITY OF MERIDIAN, Mississippi v. $104,960.00 U.S. CURRENCY
    2015-CT-00710-SCT
    Supreme Court of Mississippi.
    Filed: 04/01/2017
    Closed: 06/15/2017
   Motion Desc: Petition For Writ of Cer-tiorari

Certiorari — Granted


text:
    Felton MARTIN, Jr. v. STATE of Mississippi
    2015-CT-00153-COA
    Supreme Court of Mississippi.
    Filed: 04/04/2017
    Closed: 06/22/2017
   Motion Desc: PETITION FOR WRIT OF CERTIORARI OF APPELLANT FELTON MARTIN, JR.

Certiorari — Denied


text:
    John Ray KIDD v. STATE of Mississippi
    2015-CT-01182-COA
    Supreme Court of Mississippi.
    Filed: 04/04/2017
    Closed: 06/15/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari — Denied


text:
    George Lee PARKS v. STATE of Mississippi
    2015-CT-01607-COA
    Supreme Court of Mississippi.
    Filed: 04/05/2017
    Closed: 06/22/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari — Denied

Dismissed as Moot


text:
    Brian Anthony YOUNG v. STATE of Mississippi
    2014-CT-01799-COA
    Supreme Court of Mississippi.
    Filed: 04/10/2017
    Closed: 06/08/2017
   Motion Desc: M.R.A.P. Rule 17 Petition for Writ for Certiorari

Certiorari — Denied


text:
    Charles SMITH v. STATE of Mississippi
    2015-CT-00812-COA
    Supreme Court of Mississippi.
    Filed: 04/12/2017
    Closed: 06/08/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari — Denied


text:
    Brenda FRANKLIN v. Cornelius TURNER
    2014-CT-01006-COA
    Supreme Court of Mississippi.
    Filed: 04/17/2017
    Closed: 06/29/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari — Denied


text:
    Demario WALKER v. STATE of Mississippi
    2015-CT-00912-SCT
    Supreme Court of Mississippi.
    Filed: 04/21/2017
    Closed: 06/29/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari — Granted


text:
    Lonnie JORDAN v. STATE of Mississippi
    2015-CT-01778-COA
    Supreme Court of Mississippi.
    Filed: 4/25/2017
    Closed: 6/29/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari — Denied


text:
    Jane DOE v. John DOE
    2015-CT-00652-COA
    Supreme Court of Mississippi.
    Filed: 04/25/2017
    Closed: 06/22/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari — Denied


text:
    Justin JAMES v. STATE of Mississippi
    2015-CT-01822-COA
    Supreme Court of Mississippi.
    Filed: 04/25/2017
    Closed: 06/29/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari — Denied


text:
    Demario WALKER v. STATE of Mississippi
    2015-CT-00912-SCT
    Supreme Court of Mississippi.
    Filed: 04/25/2017
    Closed: 06/29/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari — Granted


text:
    Tommy JONES v. STATE of Mississippi
    2005-CT-00851-COA
    Supreme Court of Mississippi.
    Filed: 05/08/2017
    Closed: 06/22/2017
   Motion Desc: Petition for Writ of Certio-rari

Certiorari — Dismissed


text:
    Marion O’Bryan STRICKLAND v. STATE of Mississippi
    2014-CT-01697-COA
    Supreme Court of Mississippi.
    Filed: 4/28/2017
    Closed: 6/29/2017
   Motion Desc: Petition for Writ of Cer-tiorari

Certiorari — Denied


author: GRIFFIS, P.J.,

text:
    Lonnie JORDAN a/k/a Lonnie L. Jordan a/k/a Lonnie Lee Jordan, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01778-COA
    Court of Appeals of Mississippi.
    11/29/2016
    Rehearing Denied March 18, 2017
    Certiorari Denied June 29, 2017

      OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES BENJAMIN ALLEN SUBER, ATTORNEYS FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE, ATTORNEY FOR APPELLEE
    BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ.
   GRIFFIS, P.J.,

FOR THE COURT:

¶ 1. Lonnie Jordan was convicted of auto theft and kidnapping on November 9, 2015. The Copiah County Circuit Court sentenced Jordan to ten years for auto theft and thirty years for kidnapping, to run consecutively. The circuit court denied Jordan’s posttrial motions, which Jordan now appeals. We find no error and affirm.

FACTS

¶2. On February 5, 2015, Dominique Buckner left her car idling in the driveway of Kimberly Sims’s house in Hazlehurst. Buckner left her two-month-old son, Austin, in the vehicle, with the driver’s side door open, while she went to retrieve her three-year-old son, Aiden, from Sims’s house. Buckner stated that she got out of the car to retrieve Aiden from the front porch and heard her car door close and saw her car drive off. Buckner then ran after the car screaming for her child, but the car drove away. Buckner did not see who took the car, but called the police to report the theft and kidnapping.

¶ 3. The Hazlehurst Police Department, the Copiah County Sheriffs Department, the Mississippi Bureau of Investigation, and other agencies coordinated an effort to locate the car carrying Austin. An Amber Alert was issued shortly after Buckner reported the crime. Early in the morning on February 6, 2015, George Howell spotted the missing vehicle on Thomas Road in Crystal Springs. Howell recognized the car from the Amber Alert and reported the location of the car to the Crystal Springs Police Department. The police found the car with Austin unharmed in the backseat, but there was no indication of a suspect.

¶4. During the several hours between the theft and the recovery of the vehicle, Christopher Davis, an investigator with the Hazlehurst Police Department, developed Jordan as a person of interest. Investigator Davis knew Jordan frequented the area where the car was stolen. A further investigation revealed that Jordan’s girlfriend, LaQuanda Jefferson, lived on Thomas Road approximately .1 miles from where police recovered the vehicle.

¶ 5. Police questioned Jefferson that night regarding Jordan’s whereabouts, but she denied seeing Jordan at the time. A few days later, Ray Johnson turned over a purse and wallet belonging to Buckner to police. Johnson, Jefferson’s father, owned and lived at the home on Thomas Road with his wife, Jefferson, and Jefferson’s two children. He stated he found the purse underneath his front porch, but did not know how it got there.

¶ 6. The day after Johnson discovered the purse, Jefferson contacted police to change her statement. Jefferson stated that Jordan came to her house the night of the crime. When the police arrived, Jefferson alleged that Jordan asked her to hide him and then sneak him out of the house the next morning. The police then arrested Jordan based on this new evidence.

PROCEDURAL HISTORY

¶7. On September 24, 2015, a Copiah County grand jury indicted Jordan on Count I, the unlawful possession and taking away of a vehicle, and Count II, kidnapping, in violation of Mississippi Code Annotated sections 97-17-42 and 97-3-53 (Rev. 2014), respectively. The trial occurred on November 5 and November 9, 2015, with a jury returning guilty verdicts on both counts. The jury could not agree on Jordan’s sentence for the kidnapping charge. Therefore, the trial-court judge sentenced Jordan to ten years for the auto theft and thirty years for the kidnapping.

¶ 8. On November 12, 2015, Jordan filed two posttrial motions, one for a judgment notwithstanding the verdict (JNOV) and one for a new trial. The trial court denied both motions on November 18, 2015. On appeal, Jordan alleges that the trial court erred in denying the motion for a new trial because the verdicts were against the overwhelming weight of the evidence.

¶9. Jordan also filed a supplemental brief and alleged the following: (1) he was unlawfully arrested; (2) the verdicts were a result of bias and prejudice and were against the weight of the credible evidence; (3) the sentence should be set aside because the jury did not hear all of the evidence; (4) the prosecutor made improper remarks in closing arguments; (5) the trial court erroneously admitted the 911-call recording; (6) the evidence was insufficient and the verdicts were against the overwhelming weight of the evidence; (7) the State- did not prove the elements of the crimes beyond a reasonable doubt; (8) the circumstantial evidence did not support the verdicts; (9) the trial court erroneously denied his motion for a directed verdict; and (10) the trial court erroneously denied his motion for a new trial.

¶ 10. Because several of Jordan’s claims on appeal are repetitious or related, we combine his.claims into the following issues:

I. Whether Jordan was unlawfully arrested;
II. Whether the evidence was sufficient to support Jordan’s conviction;
III. Whether the jury verdicts are against the overwhelming weight of the evidence;
IV. Whether Jordan’s sentence should be set aside because the jury did not hear all of the evidence;
V. Whether the prosecutor made improper remarks in closing arguments; and
VI. Whether the trial court erroneously admitted the 911 tape recording into evidence.

We find no reversible error in any of the issues and affirm.

ANALYSIS

I. Whether Jordan was unlawfully arrested.

¶ Tl. Jordan initially contends that he was unlawfully arrested by police. He claims that police lacked probable cause for his arrest and he did not receive his Miranda warnings. Jordan, however, failed to raise this issue prior to or at trial. “It is well-established that failure to raise an issue at trial procedurally bars review on appeal.” Boyd v. State, 47 So.3d 121, 123-24 (¶ 10) (Miss. 2010). Further, Jordan does not point to any evidence in the record to support his claim, and an appellate court “cannot consider that which is not in the record.” Hampton v. State, 148 So.3d 992, 995 (¶7) (Miss. 2014) (citation omitted). This issue, therefore, is without merit.

II. Whether the evidence is sufficient to support the jury verdicts.

¶ 12. Jordan alleges the following issues related to the sufficiency of the evidence: the evidence was insufficient, the State did not prove the elements of the crimes beyond a reasonable doubt, the circumstantial evidence did not support the verdicts, and the trial court erroneously denied his motions for a directed verdict and a JNOV. We consolidate these issues for brevity and clarity as: whether the evidence was sufficient to support the jury verdicts.

¶ 13. We begin with the motions for a directed verdict and a JNOV. Our standards of review for denials of motions for JNOV and directed verdict are the same. Reed v. State, 956 So.2d 1110, 1111 (¶ 6) (Miss. Ct. App. 2007) (citing Jefferson v. State, 818 So.2d 1099, 1111 (¶ 30) (Miss. 2002)). “A JNOV and directed verdict challenge the legal sufficiency of the evidence presented at trial.” Id. “When reviewing the sufficiency of the evidence, this Court must ask 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.” Miles v. State, 956 So.2d 349, 350 (¶ 6) (Miss. Ct. App. 2007) (quoting Shumpert v. State, 935 So.2d 962, 966 (¶ 8) (Miss. 2006)).

¶ 14. Jordan also asserts the State failed to prove all of the elements of the crime beyond a reasonable doubt. “The critical inquiry is whether the evidence proves all elements of the offense existed and the accused committed the act charged beyond a reasonable doubt.” Graves v. State, 984 So.2d 1035, 1040 (¶ 12) (Miss. Ct. App. 2008) (citing Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005)). The Mississippi Supreme Court has stated:

If the facts and inferences so considered point in favor of the defendant with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty, granting the peremptory instruction or [JNOV] is required. On the other hand, if there is substantial evidence opposed to the request or motion — that is, evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair minded [jurors] in the exercise of impartial judgment might reach different conclusions — the request or motion should be denied.

Gavin v. State, 473 So.2d 952, 956 (Miss. 1985).

¶ 15. Further, Jordan challenges the sufficiency of the circumstantial evidence. “The [supreme court] has consistently held that the State may prove a crime solely by circumstantial evidence.” Goldsmith v. State, 195 So.3d 207, 213 (¶ 24) (Miss. Ct. App. 2016) (citation omitted). “The test to be applied is whether ‘a rational fact-finder might reasonably conclude that the evidence excludes every reasonable hypothesis inconsistent with guilt of the crime charged.’ ” Id. (quoting Presley v. State, 994 So.2d 191, 194 (¶ 10) (Miss. Ct. App. 2008)). “However, we must view the evidence in a light most favorable to the verdict.” Id. As all of these contentions implicate the sufficiency of the evidence, we must determine whether the State proved, beyond a reasonable doubt, that the crimes of auto theft and kidnapping occurred.

¶ 16. The State presented witnesses who testified to an extent that established Jordan’s involvement in the crimes. First, Investigator Davis testified that Jordan quickly became a person of interest because he knew Jordan frequented the area, but he could not locate Jordan’s whereabouts. Investigator Davis also testified that Buckner’s ear and child were recovered approximately .1 miles from Jefferson’s home. Lastly, Investigator Davis testified that Jefferson initially told police she did not see Jordan that night, but Jefferson later contacted him to change her story.

¶ 17. Jefferson testified that the night police came to her house, she lied about not seeing Jordan that night. In her later statement to police, Jefferson stated that Jordan did come to her house that night and that he stayed in her room. When the police arrived, Jefferson testified that Jordan asked her to hide him. She stated that she hid Jordan in her children’s closet until she sneaked him out of the house the next morning. Jefferson further testified that Jordan did not arrive in a car and she had to drive him home that morning.

¶ 18. A third witness, Johnson, testified that he found Buckner’s purse and wallet underneath the front porch of his home. Johnson stated he found the purse and wallet a couple of days after the incident and turned the evidence over to police. Johnson also testified that Jordan never came onto his property in contradiction to Jefferson’s testimony.

¶ 19. Discrepancies in witness testimony, however, do not render the evidence insufficient. “[I]t is well-settled law that the jury determines the credibility of witnesses and resolves conflicts in the evidence.” McClure v. State, 941 So.2d 896, 898 (¶ 4) (Miss. Ct. App. 2006) (citing Evans v. State, 725 So. 2d 613, 680-81 (¶293) (Miss. 1997)). Therefore, the witness testimony provided a sufficient basis for the jury to find Jordan guilty. As such, we find the trial court properly denied Jordan’s motions for a directed verdict and a JÑOV. This issue is without merit.

III. Whether the jury verdicts are against the overwhelming weight of the evidence.

' [5] ¶20. Additionally, Jordan argues that the verdicts were a result of bias and prejudice and were against the weight of the credible evidence, as well as that the trial court erroneously denied his motion for a new trial, These contentions all implicate the weight of the evidence, and we accordingly combine them into one issue: whether the jury verdicts are against the overwhelming weight of the evidence.

¶ 21. “This Court reviews a denial of a motion for a.new trial for abuse of discretion.” Conner v. State, 138 So.3d 158, 168 (¶ 33) (Miss. Ct. App. 2013) (citing Rutland v. State, 60 So.3d 137, 142 (¶18) (Miss. 2011)). When this Court reviews “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, 895 So.2d at 844 (¶ 18) (citation omitted). With this standard in mind, we must weigh the evidence in the light most favorable to the verdict. Id. “[A] verdict will be set aside if it 'is the result of bias, prejudice, or is manifestly against the overwhelming weight of the evidence.’” Johnson v. State, 101 So.3d 717, 723 (¶ 20) (Miss. Ct. App. 2012).

¶ 22. Jordan again challenges the amount of evidence connecting him to the crimes. But “[a] limited amount of physical evidence, in itself, does not mean that a guilty verdict was against the weight of the evidence.” Blanchard v. State, 55 So.3d 1074, 1079 (¶ 25) (Miss. 2011). Further, “the absence of physical evidence does not negate a conviction where there is testimonial evidence.” Williams v. State, 879 So.2d 1126, 1128 (¶ 5) (Miss. Ct. App. 2004) (quoting Graham v. State, 812 So.2d 1150, 1153 (¶ 9) (Miss. Ct. App. 2002)).

¶ 23. As previously discussed, the State presented evidence that Jordan frequented the area where the car was taken, that his girlfriend Jefferson lived on the same street that police recovered the vehicle, and that Buckner’s purse was found at Jefferson’s home. Further, Jefferson testified that she lied to police the night of the incident when she denied that she saw Jordan. Jefferson then recanted her statement a few days later, then testified at trial that she saw Jordan that night and he asked her to hide him from police.

¶ 24. Though the jury could doubt Jefferson’s credibility, other witnesses presented testimony the jury could reasonably find credible. “The testimony of one credible witness is sufficient to sustain a conviction.” Shipp v. State, 921 So.2d 1280, 1281 (¶ 12) (Miss. Ct. App. 2006) (citing Williams v. State, 512 So.2d 666, 670 (Miss. 1987)). Jordan also contended- the jury’s verdicts resulted from prejudice or bias because of Jefferson’s false statements. But we leave the determination of witness credibility to the jury. McClure, 941 So.2d at 898 (¶ 4). Without more, we cannot find any bias or prejudice in the verdicts. Therefore, the weight of the evidence supported the jury’s verdicts, and the trial court did not abuse its discretion in denying Jordan’s motion for a new trial. This issue is meritless.

IV. Whether Jordan’s sentence should be set aside because the jury did not hear all of the evidence.

¶ 25. Jordan next asserts the jury did not hear evidence of Jefferson’s statement, which she gave police on February 9, 2015, or evidence of the fingerprint report. Jordan is mistaken in this contention, however. Though the statement and fingerprint report were not admitted into evidence, Jefferson testified to the contents of her February 9 statement, and Investigator Davis testified to the results of the fingerprint collection. Therefore, the jury did hear the evidence through witness testimony.

¶ 26. Further, Jordan did not seek to admit the actual statement or report as part of his defense, failed to assert any error with the omission of these documents, and enjoyed cross-examination of the witnesses regarding the evidence. As such, Jordan failed to bring forth this issue at trial. “It has long been held that ‘issues not brought before .the trial court are deemed waived and may not be raised for the first time on appeal.’” Edwards v. State, 162 So.3d 864, 866 (¶ 5) (Miss. Ct. App. 2014) (quoting Tate v. State, 912 So.2d 919, 928 (¶ 27) (Miss. 2005)). Therefore, this issue is procedurally barred.

V. Whether the prosecutor made im■proper remarks in closing arguments.

¶ 27. Jordan next asserts that the prosecutor remarked in his closing arguments that Jordan was guilty of the crimes, he stole the vehicle and kidnapped the child, he went into Jefferson’s bedroom the night of the crime, and he wiped his fingerprints from the car. According to Jordan, these remarks were improper, prejudicial, and manifestly wrong, lacked evidentiary support, resulted in prosecuto-rial misconduct, and violated his right to a fair trial.

¶ 28. “[T]he test to determine if an improper argument by a prosecutor requires reversal is whether the natural and probable effect of the ... improper argument created unjust prejudice against the accused resulting in a decision influenced by prejudice.” Lathan v. State, 164 So.3d 484, 488 (¶ 13) (Miss. Ct. App. 2014) (quoting Dunaway v. State, 551 So.2d 162, 163 (Miss. 1989)). However, the trial transcript did not include the closing arguments, and Jordan did not raise the issue in his post-trial motions.

¶29, The supreme court has held that “it is the duty of the appellant to see that the record of the trial proceedings wherein error is- claimed is brought before this Court.” Jackson v. State, 684 So.2d 1213, 1226 (Miss. 1996)). Jordan, however, does not claim error with the failure to include the closing arguments in the transcript. Without the transcript, we cannot determine if Jordan properly objected to any comments in order to preserve this issue for appeal. See Gray v. State, 487 So.2d 1304, 1312 (Miss. 1986) (“Contemporaneous objections to allegedly erroneous comments of the prosecuting attorney in closing arguments must be made or the point is waived.”). Regardless, the alleged remarks do not appear improper.

¶ 30. “The purpose of the closing argument before a jury is to enlighten the jury. It is the duty of the district attorney to fairly sum up and point out the points presented by the [S]tate on which the prosecution contends a verdict of guilty is proper.” Id. The alleged improper remarks from the prosecutor reiterated testimony presented by other witnesses. Testimony showed that the only DNA present in the car came from Buckner, and police recovered no usable fingerprints. The State also reaffirmed Jefferson’s testimony that Jordan entered her room through the window on the night of the crime.

¶ 31. Lastly, though “[i]t is error to argue facts prejudicial to the defendant which are not in evidence or reasonably inferable from facts in evidence,” the prosecutor can comment on the evidence before the jury without committing error. White v. State, 847 So.2d 886, 891 (¶ 18) (Miss. Ct. App. 2002). As such, we find no reversible error in this issue.

VI. Whether the trial court erroneously admitted the 911 tape recording into evidence.

¶ 32. Next, Jordan argues the trial court erred in allowing the State to play the 911 tape recording of Buckner’s call to police. Jordan alleges the 911 tape was prejudicial with no probative value, lacked evidentiary support, was used for dramatic effect and as a ploy by the prosecutor to impassion the jury, was unnecessary, was irrelevant, violated his right to a fair trial, and its admission was manifestly wrong. Jordan, however, failed to raise these points at trial.

¶ 33. “The supreme court has stated that ‘counsel must make specific objections in order to preserve a question for appellate review. This Court has said many times that general objections will not suffice. Objections to the admissibility of evidence must specifically state the grounds; otherwise, the objection is waived.’ ” Hoye v. State, 1 So.3d 946, 948 (¶ 6) (Miss. Ct. App. 2009) (quoting Seeling v. State, 844 So.2d 439, 445 (¶ 17) (Miss. 2003)). At trial, Jordan’s counsel objected to the 911 tapes and stated: “Objection, Your Honor, on the grounds that this is not the best evidence. The person who made the phone call is on the [S]tate’s witness list.” While not explicit, it appears Jordan objected based on the best-evidence rule embodied in Mississippi Rule of Evidence 1002, but did not assert this contention on appeal. Regardless, we will determine if the admission of the evidence violated the best-evidence rule.

¶ 34. “Under this Court’s standard of review, the admissibility of evidence rests within the discretion of the trial judge. Unless his judicial discretion is abused, this Court will not reverse his ruling.” Seals v. State, 869 So.2d 429, 433 (¶ 13) (Miss. Ct. App. 2004). Rule 1002 states: “To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided by law.” Further, “[t]he best evidence rule applies to documentary evidence and is concerned with the authenticity of such evidence.” Gales v. State, 153 So.3d 632, 645 (¶43) (Miss. 2014) (citation omitted).

¶ 35. The 911 tape was the original recording from the call. Darrien Murray, the assistant chief of the Hazlehurst Police Department, properly authenticated the recording. Therefore, the trial court followed the best-evidence rule rather than deferring to Buckner’s testimony. See Watson v. State, 465 So.2d 1091, 1092 (Miss. 1985) (the best-evidence rule “expresses a preference for original documents”). This issue is meritless.

¶ 36. THE JUDGMENT OF THE CO-PIAH COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, TAKING POSSESSION OF AND TAKING AWAY AN AUTOMOBILE, AND SENTENCE OF TEN YEARS; AND COUNT II, KIDNAPPING, AND SENTENCE OF THIRTY YEARS, WITH THE SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COPIAH COUNTY.

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

      . Miranda v. Arizona, 384 U.S. 436, 471,-86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (mandating that the custodian read the accused his right to remain silent and right to counsel prior to an interrogation). As the record does not indicate the police interrogated Jordan, Miranda is not implicated here.


author: JAMES,' J.,

text:
    Justin JAMES a/k/a “Hurricane” a/k/a Justin Curtis Martell James, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-CA-01822-COA
    Court of Appeals of Mississippi.
    12/13/2016
    Rehearing Denied April 11, 2017
    Certiorari Denied June 29, 2017

      ATTORNEY FOR APPELLANT: IMHOTEP ALKEBU-LAN
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: ALICIA MARIE AINSWORTH
    BEFORE IRVING, P.J., CARLTON AND JAMES, JJ.
   JAMES,' J.,

FOR THE COURT:

¶ 1. The Circuit Court of Attala County, Mississippi, convicted Justin James of one count of armed robbery, one count of manslaughter, two counts' of aggravated assault, and one count of conspiracy to commit armed robbery. James appealed, and this Court affirmed his convictions on February 11, 2014. On July 7, 2015, James filed a motion for postcoriviction relief (“PCR”). James’s motion was predicated upon an affidavit of Barry Love, a key State witness at James’s trial, who recanted his testimony against James. On November 18, 2015, a hearing was held on the motion; however, the trial court denied James’s motion. James appeals the circuit court’s decision to deny his PCR motion. Finding no error, we affirm the judgment of the circuit court. -

FACTS AND PROCEDURAL HISTORY

¶ 2. James, Love, Detrius Roberson, and Robert Landfair were alleged to have robbed a retail shop. One individual was shot and killed during the robbery. Two eyewitnesses testified that they saw four armed robbers and identified Love as one of the robbers, since Love’s mask slipped off his face while in the shop. After his arrest, Love identified James,’ Roberson, and Landfair as the other coconspira-tors/robbers. Prior to James’s trial, Land-fair pled guilty.

¶ 3. On September 28, 2010, James and his codefendant Roberson were found guilty of armed robbery, conspiracy to commit armed robbery, two counts of aggravated assault, and one count of manslaughter. James was .sentenced to sixty years in the Mississippi Department of Corrections’ custody. James’s conviction was predicated upon the testimony of Love and the admission of the trial transcript from Landfair’s guilty-plea hearing. Love was subsequently tried and convicted of capital murder, two counts of aggravated assault, and conspiracy to commit armed robbery.

¶4. James appealed, and . on February 11, 2014, this Court affirmed his conviction. On April 14, 2015, James filed his PCR motion and supported it with an affidavit executed by Love, recanting his trial testimony. On July 1, 2015, the Mississippi Supreme Court issued an order granting James leave to file his PCR motion in the trial court. On July 7, 2015, James filed his PCR motion in the Circuit Court of Attala County. The trial court held an evidentiary hearing on the motion, with Love being the only witness called to testify. Love testified that his original testimony during James’s trial was not the truth. Love contended that his gang threatened him to “get [James and Roberson] off the street,” which prompted him to perjure himself at James’s trial. On November 18, 2015, the trial court denied James’s PCR motion on the grounds that Love’s testimony at trial corroborated other witness accounts. James now appeals. On appeal, James argues that Love’s recanted testimony proved that perjury existed at his trial and that perjury was the material reason James was implicated in the crime.

DISCUSSION

¶ 5. At an evidentiary hearing on postconviction relief, the burden of proof is on the petitioner to “prove[ ] by a preponderance of the evidence that he is entitled to the relief.” Miss. Code Ann. § 99-39-23(7) (Rev. 2015). “A trial court’s denial of a PCR motion will not be reversed absent a finding that the trial court’s decision was clearly erroneous.” Neal v. State, 186 So.3d 378, 381 (¶4) (Miss. Ct. App. 2016). “Credibility decisions [on recanted testimony] are for the trial judge, not this Court.” Graves v. State, 187 So.3d 173, 176 (¶ 12) (Miss. Ct. App. 2015).

¶ 6. James argues that the trial court abused its discretion when it denied his motion since the State’s key witness, Love, recanted his testimony. Love asserted in his affidavit, and during the eviden-tiary hearing, that his testimony at trial “was not the truth,” and was a result of his fellow gang members wanting James off the streets. However, Love testified in great detail regarding the events surrounding the commission of the crime. As such, the trial court found that critical • parts of Love’s testimony were corroborated during the State’s case-in-chief.

When a defendant moves for a new trial based on recanted testimony, the defendant has the burden of proving two elements to the satisfaction of the trial judge at the evidentiary hearing: (1) he must have sufficiently proven the perjury existed by showing that the recantation was material, and (2) he must have proven the result of a new trial would be different than the one reached.

Howell v. State, 163 So.3d 240, 248 (¶ 10) (Miss. 2014)(citing Walls v. State, 735 So.2d 1010, 1011 (¶ 3) (Miss. 1999)).

¶ 7. At the conclusion of the evidentiary hearing, the trial court noted numerous instances of corroborating statements made by Love. He testified that James was one of four coconspirators/robbers, and Love’s detailed account of the events transpiring during the commission of the crime was corroborated by other witness accounts. The State also cited at least twelve instances where Love’s testimony corroborated other witness statements. After reviewing Love’s statements during the trial and evidentiary hearing, the trial court found Love’s recantation was a total fabrication. Love’s testimony at trial corroborated the State’s evidence against James; Love’s recantation could not sufficiently prove that perjury existed. As a result, James failed to prove beyond a preponderance of the evidence that the recantation entitled him to a new trial. We therefore affirm the decision of the trial court.

CONCLUSION

¶ 8. Because Love’s recanted testimony failed to refute the corroborated testimony he gave during James’s trial, we affirm the decision of the trial court.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF ATTALA COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: FAIR, J.,

text:
    Elizabeth GRAHAM and Matthew Graham, Appellants v. James R. “Jamie” FRANKS, Jr. and Wheeler and Franks Law Firm, P.C., Appellees
    NO. 2015-CA-01428-COA
    Court of Appeals of Mississippi.
    01/10/2017
    Rehearing Denied June 27, 2017

      MICHAEL LEE DULANEY, D. KIRK THARP, ATTORNEYS FOR APPELLANTS
    ANDREW J. KILPATRICK JR., ASHLEY NOBILE LANE, ATTORNEYS FOR APPELLEES
   FAIR, J.,

FOR THE COURT:

¶ 1. Elizabeth and Matthew Graham filed a “Complaint for Discovery, Accounting, and Return of Property” against their former attorney and his law firm. The chancellor recognized that the complaint sought information supporting claims of breach of contract, breach of fiduciary duty, conversion or replevin of property, “and/or additional relief in accord with the facts and circumstances at issue” but dismissed the complaint because “none of those causes of action are [actually] pled.”

¶ 2. We conclude that this was in error— the complaint alleged that the Grahams were entitled to discovery and an accounting, both of which are viable causes of action in chancery court under Mississippi law. We reverse and remand for the chancery court to proceed on the complaint.

FACTS

¶ 3. The complaint alleged that in 2013, the Grahams — Elizabeth and her son Matthew — retained the Wheeler and Franks Law Firm to defend Matthew in a criminal case. A contract for legal services was signed by Matthew, which provided for a fixed attorney’s fee of $75,000. Matthew also executed a power of attorney in favor of his mother, who signed a separate contract agreeing to pay the $75,000 fee.

¶ 4. The Grahams allege that after executing the flat fee contract, attorney James Franks Jr. used threats of a negative outcome in Matthew’s case to manipulate the Grahams into surrendering valuable property and making additional cash payments, in a total far in excess of the contract amount. After Elizabeth balked at Franks’s demand that she sell him her business for much less than it was worth, she retained attorney M. Lee Dulaney. Matthew eventually also retained Dulaney as his attorney, but Franks refused Dula-ney’s various requests for documents and explanations of the services rendered and fees charged, as well as his demands that Franks return payments and property tendered in excess of the contract amount.

¶ 5. The Grahams then filed their “Complaint for Discovery, Accounting, and Return of Property.” On Franks’s motion, the chancellor dismissed the complaint under Mississippi Rule of Civil Procedure 12(b)(6) for failing to state a cause of action against Franks. The chancery court found that the Grahams were seeking information to support claims of: (1) breach of contract; (2) breach of fiduciary duty; (3) conversion or replevin of property; and (4) additional relief, but that “none of those causes of action [were actually pleaded] in [the Grahams’] complaint.” Rather, the chancellor held the Grahams’ claims were “based entirely on alleged violations of the [Mississippi] Rules of Professional Conduct.” And “such claims, standing alone, are insufficient to support the ... requests for relief.” The Grahams appeal.

STANDARD OF REVIEW

¶ 6. “Mississippi Rule of Civil Procedure 12(b)(6) ‘tests the legal sufficiency of a complaint, and provides that dismissal shall be granted to the moving party where the plaintiff has failed to state a claim upon which relief can be granted.’ ” Satterfield v. State, 158 So.3d 380, 382 (¶ 3) (Miss. Ct. App. 2015) (citation omitted). “This is a question of law subject to de novo review on appeal.” Id. (citation omitted).

¶ 7. Mississippi Rule of Civil Procedure 8(a) requires:

A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain
(1) a short and plain statement of the claim showing that the pleader is entitled to relief, and,
(2) a demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded.

DISCUSSION

¶ 8. We agree with Franks and the chancellor that violation of the Mississippi Rules of Professional Conduct does not in and of itself create a cause of action. See Estate of Martin v. Hixson, 145 So.3d 1124, 1132-33 (¶ 19) (Miss. 2014). But while it is true that the complaint asserts that Franks violated various Rules of Professional Conduct, those allegations appear to be surplusage. It is apparent that the gravamen of the complaint is, as it is entitled, for discovery and an accounting.

¶ 9. This appeal hinges on Franks’s assumption in his Rule 12(b)(6) motion that complaints for discovery and accounting do not state a cause of action in and of themselves, as Franks has never challenged any particular element of either claim. The dis-positive question therefore appears to be whether a complaint that seeks only discovery or an accounting states a cause of action under Mississippi law.

¶ 10. It is beyond dispute that a complaint for an accounting is a valid cause of action under Mississippi law: “A Mississippi chancery court holds the authority to hear a case for an accounting.” Univ. Nursing Assocs. PLLC v. Phillips, 842 So.2d 1270, 1275 (1114) (Miss. 2003); Crowe v. Smith, 603 So.2d 301, 307-08 (Miss. 1992). The remedy sought by an accounting is the accounting itself “and a judgment for the amount found due upon the accounting.” 1A C.J.S. Accounting § 54 (2005). And “the jurisdiction of a court of equity over matters of account rests upon three grounds[:] the need of a discovery, the complicated character of the accounts, and the existence of a fiduciary or trust relation.” Phillips, 842 So.2d at 1275 (¶ 14) (quoting Henry v. Donovan, 148 Miss. 278, 114 So. 482, 484 (1927)). All of those appear to have been alleged in the Grahams’ complaint,

¶ 11. Next, we address the complaint for discovery in chancery, for the second time this year. We are now presented with the issue of whether the pure discovery action — formerly a “bill of discovery” and now called a “complaint for discovery” — remains a viable and independent cause of action within chancery court jurisdiction. We hold that it does.

¶ 12. In March of 1981 the Mississippi Rules of Civil Procedure were adopted by the Supreme Court of Mississippi, to become effective on January 1, 1982. Seven years later, in State Oil & Gas Board v. McGowan, 542 So.2d 244 (Miss. 1989), the supreme court was presented with the question of whether the new rules had abolished the common law right to a “Bill of Discovery in Chancery.” It found that they had not:

The bill of discovery is one of the ancient bills used in equity practice. Griffith, Mississippi Chancery Practice, 1925, § 427 p. 422. The Board argues that the bill is no longer available as a discovery devise in Mississippi practice as it was abolished or rendered obsolete by the Mississippi Rules of Civil Procedure effective January 1, 1982. This Court disagrees with this premise. Griffith, supra, addresses the Bill of Discovery:
But there is a distinct bill in chancery known, strictly speaking, as the bill of discovery, by the use of which disclosure may be required of material facts exclusively within the knowledge or possession of the defendant and which without such discovery no full and adequate proof of them could be made. It had its origin out of the common law rule that no party in interest was a competent witness in any case; and it began at an early date to be allowed in the court of chancery in order to relieve against what otherwise would have resulted in a denial of justice when it happened that the facts or the documents establishing a right or materially aiding therein rested in the exclusive possession or control of the opposite party; and, originally its office was simply to aid a pending suit at law or one about to be brought, and the chancery' part of the procéedings were usually deemed as concluded upon the coming in of the full answer making the disclosures or producing the documents sought. In other words, the obtaining of the discovery was the sole object and end of the bill, no relief other than the discovery being prayed. It was therefore purely ancillary to a trial in some other case and ordinarily in some other forum.
Id. at pp. 422, 423.
Rule 82(a), M.R.C.P. makes clear that nothing in the rules alters the jurisdiction of any court, nor is the power of any court to grant substantive relief changed from what it was before the rules.
It is true that the nomenclature of the legal practice was changed by the abolition of the names of the old writs and procedural names. M.R.C.P. Rule 2. See Dye v. State ex rel. Hale, 507 So.2d 332, 337 n.4 (Miss. 1987). As such, the terminology of á “Bill of Discovery” has been rendered obsolete, and procedurally it is referred to as a “complaint.” However, the adoption of the rules affected procedure, not substance. The power and authority of the Chancery Court to grant the substantive relief of “discovery” remains viable and available although it has been broadened and simplified by M.R.C.P. 26-37. The need for this substantive remedy is evident by this lawsuit.

McGowan, 542 So.2d at 248-49.

¶ 13. In addition to McGowan, only two Mississippi Supreme Court cases have addressed historical chancery court “bills” for relief in the context of the Mississippi Rules of Civil- Procedure. In Leaf River Forest Products Inc. v. Deakle, 661 So.2d 188 (Miss. 1995), the court relied heavily on McGowan, including the quotations above, in holding that the jurisdiction of a chancery court to grant a “bill of peace,” like a “bill of discovery,” had also survived enactment of the Rules of Civil Procedure. The more recent case of Moore v. Bell Chevrolet-Pontiac-Buick-GMC LLC, 864 So.2d 939 (Miss. 2004), also relied on and quoted McGowen with approval.

¶ 14. While it is true that the complaint for discovery requires a meritorious underlying cause of action if it is to be the sole basis for equitable jurisdiction, the chancellor observed that there were numerous ones here; the complaint was dismissed not because there was no underlying cause of action but because the complaint did not seek relief for one. The Supreme Court of Mississippi has recognized, however, that a complaint for discovery has discovery itself as the substantive relief sought — “the sole object and end of the bill, no relief other than the discovery being prayed.” McGowan, 542 So.2d at 248. “Rule 82(a) [of the Mississippi Rules of Civil Procedure] makes clear that nothing in the rules alters the jurisdiction of any court, nor is the power of any court to grant substantive relief changed from what it was. before the rules.” Id. at 249.

¶ 15. As both discovery and accounting remain independent causes of action under Mississippi law, and Franks has never argued the insufficiency of the Grahams’ allegations on any specific element of either, we conclude that the trial court erred in granting the motion to dismiss for failure to state a claim upon which relief can be granted. We remand the case for further proceedings consistent with this opinion.

¶ 16. THE JUDGMENT OF THE CHANCERY COURT OF LEE COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON AND GREENLEE, JJ., CONCUR. IRVING, P.J., AND WILSON, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., NOT PARTICIPATING.

      . See Kuljis v. Winn-Dixie Montgomery LLC, 2015-CA-00256-COA, 214 So.3d 318, 2016 WL 1203823 (Miss. Ct. App Mar. 29, 2016), reh'g denied (Aug. 23, 2016), cert. granted (Nov. 17, 2016).

      . See Davis v. Lowy, 221 Miss. 283, 292, 72 So.2d 679, 681 (1954); see also James W. Shelson, Mississippi Chancery Practice § 18:2 (2016).