author: FAIR, J.,

text:
    William Travis LOWELL a/k/a Travis Lowell a/k/a William T. Lowell, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-01309-COA
    Court of Appeals of Mississippi.
    09/19/2017

      ATTORNEY FOR APPELLANT: WILLIAM TRAVIS LOWELL (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF.THE ATTORNEY GENERAL' BY: BILLY L. GORE
   FAIR, J.,

FOR THE COURT:

¶ T. William Lowell pled guilty to a number of theft-related offenses stemming from a crime spree he undertook in May 2011, - allegedly to raise money for his wife’s medical treatment. Lowell pled guilty to three counts of grand larceny," one count of burglary, and one count of possession of stolen property. He subsequently filed a motion for post-conviction relief contending, among other things, that he was subjected to double jeopardy because he was convicted of larceny and possession of stolen property for the same theft. The circuit court dismissed the PCR motion withoht an evidentiary hearing.

¶ 2. Although doublerjeopardy claims are usually excepted, from procedural bars due to their status as fundamental constitutional rights, Lowell’s particular • claim—that he committed a single larceny because he stole the two pieces of property at the same time and from the same person and place—seeks to go beyond the face of the. indictments and the record of his guilty plea into what is essentially a factual defense to the allegations. Lowell’s convictions are facially valid, and the double-jeopardy defense was waived by Lowell’s voluntary, bargained-for guilty plea. We affirm the dismissal, with one exception: the State has conceded that the trial court lacked any basis in the record to order Lowell to pay $278.50 in restitution to the victim of a separate offense. On that point, we reverse and render.

STANDARD OP REVIEW

¶3. The circuit court may summarily dismiss a PGR motion without an eviden-tiary hearing “[i]f it plainly, appears from the face of the motion, any annexed. exhibr its and the prior proceedings in the case that the movant is not entitled to any relief.” Miss, Code Ann. § 99-89-11(2) (Rev. 2015). To succeed on appeal, the petitioner must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedural alive. Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss. 1999).

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

DISCUSSION

1. Double Jeopardy

¶ 5. Lowell contends that Counts II and V of his indictment alleged the same offense for double-jeopardy: purposes. Count II was grand larceny for the theft of a riding lawn mower owned by Sidney Imes. Count V was for possession of stolen property, a particularly valuable bicycle-also owned by Sidney Imes. On appeal, Lowell contends that he stole both items at the same time and from the same place, and thus that their taking amounted to a single larceny. Under Mississippi-law, a defendant cannot be charged in the same jurisdiction with both larceny for taking the property and possession of it as stolen property. See Miss. Code Ann. § 97-17-70(3)(a) (Rev. 2014); see also Davis v. State, 162 So.3d 805, 808 (¶ 9) (Miss. 2015) (“[W]hen a defendant can be charged with either stealing or receiving the same property, the State must opt to charge the-defendant with either stealing or receiving the property.”). Lowell argues that because his larceny charge in .Count II included the bicycle, he could not also be charged with possession, of stolen property for possessing it.

¶ 6. Our supreme court has repeatedly held that double jeopardy is a fundamental constitutional right that is not subject to procedural bars. See, e.g., Rowland v. State, 42 So.3d 503, 507-08 (¶¶ 12-15) (Miss. 2010). Waiver, on the other hand, is a separate issue: “.[characterizing a constitutional right as ‘fundamental’ does not mean it is impossible .to waive it by pleading guilty,” Knight v. State, 192 So.3d 360, 364 (¶ 13) (Miss. Ct. App. 2016). Constitutional rights can generally be waived, but the waiver of double jeopardy is more limited. Our supreme court has held that “a plea of guilty to a charge does not waive a claim- tha1>—judged on its face—the charge is one which the State may not constitutionally prosecute,” Willie v. State, 738 So.2d 217, 219 (¶ 10) (Miss. 1999) (quoting Menna v. New York, 423 U.S. 61, 63 n.3, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975)). But, in Knight, this Court elaborated on those double-jeopardy claims that can' still be waived. We noted that the United States Supreme Court has held that “prisoners who plead guilty to ‘indictments that on their face described separate’ crimes essentially waive the right to contradict ‘the admissions inherent in their-guilty pleas.’” Knight, 192 So.3d at 365 (¶ 14) (quoting United States v. Broce, 488 U.S. 563, 576, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989)). Conscious waiver is not required because, by pleading guilty, the defendant admits not only to the facts alleged but also to his substantive, legal guilt for the offense charged. See Broce, 488 U.S. at 570, 109 S.Ct. 757. “Just as a defendant who pleads guilty to a single count admits guilt to the specified offense, so too does a defendant who pleads guilty to two counts with facial allegations of distinct offenses concede that he-has committed two separate crimes.” Id.

¶ 7. Lowell’s claim is premised on what is often called the. “single larceny rule,” which generally provides that “when several articles of property are. stolen by the defendant from the same owner at the same time and at the same place, only one larceny is committed.” 50 Am. Jur. 2d Larceny § 4 (Aug. 2017 update). In State v. Dalton, 91 Miss. 162, 165, 44 So. 802, 802 (1907), the Mississippi Supreme Court clearly articulated a somewhat broader version of the single larceny rule as the law of this State: “However diverse may be the ownership of property which is the subject of larceny, if the act of’ taking constitutes but a single act, but one offense is committed.” Multiple takings may be consolidated into a single larceny if those items are taken all at the same time, if the separate takings “constituted one continuing transaction,” or if the separate takings were “the result of one design.” See Dodson v. State, 130 Miss. 137, 143, 93 So. 579, 580 (1922). This would be a question of fact for the jury. See Barnes v. State, 230 Miss. 299, 305, 92 So.2d 863, 865 (1922); see also 50 Am. Jur. 2d Larceny § 4 (Aug. 2017 update).

¶8. Complicating things is the 2004 amendment to the grand larceny statute, which added the following sentence: “The total value of property taken and carried away by the person from a single victim shall be aggregated in determining the gravity of the offense.” See Miss. Code Ann. § 97-17-41(1) (Rey. 2014). According to Lowell, the 2004 amendment requires the aggregation of .all takings from a single victim into a single larceny count, regardless of the circumstances of each individual taking. We simply do not agree with Lowell’s interpretation of the amendment. The entire relevant subsection of the grand larceny statute,' at the time of Lowell’s offenses, read:

Every person who shall be convicted of taking and carrying away, feloniously, the personal property of another, of the value of Five Hundred Dollars ($500.00) or more, shall be guilty of grand larceny, and shall be imprisoned in the Penitentiary for a term not exceeding ten (10)-years; or shall be fined not more than Ten Thousand Dollars ($10,000.00), or both. The total valúe of property taken and carried away by the person from a single victim shall be aggregated in determining the gravity of the offense.

Rather than redefining larceny, by its own terms the addition speaks only to “determining the gravity of the offense.” The 2004 addition to the statute cannot be read as a radical departure from the traditional definition of larceny.

¶ 9. Turning to Lowell’s double jeopardy claim, it is' apparent that the indictment alleged two .distinct offenses that do not offend the statutory prescription against multiple charges for stealing and receiving the same property. Count II alleged the larceny of a riding lawnmower—and just a riding lawnmower—owned by Sidney Imes, on May 6, 2011. Count V alleged the possession or receipt of stolen property, a bicycle valued in excess of $500.

- ¶ 10.- While the owner of the bicycle and the date Lowell possessed it are alleged to be -the same as in Count II, the best that can be said for the indictments is that they do not foreclose the possibility that Lowell’s claims are true. The record'of the guilty-plea hearing offers little more support: there are two ambiguous statements that suggest Lowell may have taken the bicycle in the same larceny as the mower, but neither fully substantiates Lowell’s claims.. The prosecutor said only that the bicycle “was taken the day all the other things went missing from the Imeses’ house” and that Lowell “subsequently confessed to all the allegations,” without specifying what those allegations were. The fact that the bicycle was taken the same day would not necessarily have made its taking the same larceny as in Count II. Likewise, the defense attorney’s statement was ambiguous: “Mr. Lowell had taken the bike when he took the mower and went to the pawn shop and [inaudible]. When he got caught, he had the bike.” It is unclear from the record whether the attorney intended to say that Lowell had stolen the bicycle and the mower together or whether he had taken them to the pawn shop together.

¶ 11. To make his case, Lowell would have to prove extraneous facts that go beyond the allegations of the indictments and the record of the guilty-plea hearing. Lowell’s'double-jeopardy claim is essentially a factual defense, one he should have made at trial. When he pled guilty, Lowell was specifically advised by the court that he' would waive his right to present defenses at trial, and Lowell acknowledged he was giving that right up voluntarily. “A guilty plea operates as a waiver to all defenses that could have-been presented [at trial,] except for those defenses going to the jurisdiction of the sentencing court.” Kelley v. State, 913 So.2d 379, 383 (¶ 7) (Miss. Ct. App. 2005).

¶ 12. Because the indictments here allege two separate crimes on their face and Lowell admitted he was guilty of both offenses, Lowell has waived the right to challenge his implicit admission that he committed two separate offenses. See Knight, 192 So.3d at 365 (¶ 14). This issue is without merit.

2. Amount of Restitution

¶ 13. We next address Lowell’s contention that the circuit court ordered him to pay excessive or illegal restitution. Lowell presents several arguments .on this point. The first is easily disposed of: he claims that the statute prohibits an award of more than $5,000 in restitution per offense. But the statute, Mississippi Code Annotated section 99-37-3 (Rev. 2015), only places such a limitation on justice courts. The circuit court was not subject to the $5,000 limit.

¶ 14. The circuit court based its awards of restitution on signed victim-impact statements filed with the circuit clerk well in advance of the guilty-plea hearing. Each of the victims submitted itemized lists of losses they said they incurred as a result of Lowell’s crime spree. At the sentencing hearing, the circuit court reviewed the lists critically, striking items it found were not legitimate claims for restitution, such as a loan one of the victims had made to Lowell.

¶ 15. In his PCR motion, Lowell contends that the vietims'exaggerated the value of the items taken, listed items as lost that had been recovered, and sought restitution for items that had been covered by insurance. Nearly all of Lowell’s contentions seek to go beyond the record and are based solely on his own claims in his PCR motion. It is well established that a petitioner’s bare assertions are insufficient to support such factual claims. See, e.g., Wat son v. State, 100 So.3d 1034, 1038 (¶ 10) (Miss. Ct. App. 2012).

¶ 16. Furthermore, the Mississippi Supreme Court has held that a defendant who fails to object to a restitution order at the time of sentencing waives the right to challenge it later. Powell v. State, 536 So.2d 13,17 (Miss. 1988). While the record here reveals some back-and-forth discussions about the amount of restitution to be ordered, it was driven by the circuit court rather than Lowell or his attorney. At no point in the record did Lowell clearly challenge any of the factual assertions in the victim-impact statements, nor did he offer his own evidence as to the value of the items taken or their ultimate disposition. In fact, both Lowell and his attorney appear to have fully assented to the truthfulness of the victim-impact statements. Thus, we find this issue to have been waived, with one exception. In the final sentencing order for Count IV, the circuit court ordered Lowell to pay $278.50 to the victims in another cause number, one which was retired to the files by agreement in return for Lowell’s guilty plea. It does not appear that this restitution was discussed on the record prior to the sentencing order being entered, and the record reveals ho connection between the two offenses. The State concedes this issue on appeal, so the judgment denying the PCR motion on the particular issue of the $287.50 restitution award is reversed and rendered.

3. Involuntary Guilty Plea

¶ 17. Lowell next contends that his guilty plea was involuntary because he was not aware of the amount of restitution he would be required to.pay to his victims. Lowell claims that most of the stolen property was ultimately recovered, and in his PCR motion before the trial court he states that he had expected the restitution ordered would be “minimal.” Instead, he was ordered to pay approximately $35,000.

¶ 18. The record reflects that Lowell executed a sworn plea petition, where he stated that he was aware that the court would determine his sentences. And Lowell has implicitly acknowledged that he knew that restitution would be considered and tha!t the amount would be left up to the court. For a plea to be voluntary, a defendant must know the possible sentences he might receive as a result of pleading guilty, not the actual sentence he will get. See Wilson v. State, 577 So.2d 394, 396-97 (Miss. 1991). Furthermore, other courts have held that when the defendant is warned of a potential fine in excess of the restitution he is ordered to pay, the error, if any, in failing to advise him specifically of the possibility' of restitution is harmless. See, e.g., United States v. Powell, 354 F.3d 362, 369 (5th Cir. 2003); United States v. Crawford, 169 F.3d 590, 592-93 (9th Cir. 1999); United States v. Raineri, 42 F.3d 36, 41 (1st Cir. 1994). Here, the circuit court expressly informed Lowell that he faced fines of up to $10,000 per count—$50,000 total, which was more than the restitution he was ordered to pay. Lowell’s plea was therefore voluntary even if he were not aware he could be ordered to pay restitution.

¶ 19. Moreover, while it is certainly the better practice for a defendant to be expressly informed that restitution could be ordered as a result of his pleading guilty, we are aware of no authority expressly holding that Mississippi, law requires it. The trial court is required to ensure that the accused “understands the nature and consequences of the plea, and the maximum and minimum penalties provided- by law,” but many courts have held that restitution is a “quasi-civil” collateral consequence of a guilty plea, and thus a defendant need not be made aware of it in order for his guilty plea to.be voluntary. See State v. Tuialii, 121 Hawai’i 135, 214 P.3d 1125, 1129 n.2 (App. 2009) (collecting cases). At any rate, it is not necessary for this Court to decide that issue now, as Lowell has admitted he was aware restitution could be. ordered. This issue, is without merit.

4. Ineffective Assistance of Counsel

¶ 20. Finally, Lowell contends that his attorney rendered constitutionally ineffective assistance because he failed to inform Lowell of the double-jeopardy defense. As we said in our prior discussion, Lowell’s guilty plea to both offenses amounted to a confession that he had committed two separate crimes. See Knight, 192 So.3d at 365 (¶ 14). Now, on PCR, Lowell seeks to show that his attorney failed to advise, him of the potential defense. However, this claim is supported only by Lowell’s own affidavit. A claim of ineffective assistance of counsel supported only by the movant’s own affidavit fails to meet the pleading requirements of the PCR statute. Vitela v. State, 183 So.3d 104, 108 (¶ 14) (Miss. Ct. App. 2015).

¶ 21. Lowell also alleges that his attorney was ineffective for failing to object to the restitution ordered, but this claim is likewise supported only by his own affidavit and was properly dismissed-for that reason.

¶ 22. AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

LEE, C.J„ GRIFFIS, P.J., BARNES, CARLTON, GREENLEE AND WESTBROOKS, JJ., CONCUR. IRVING, P.J., AND WILSON, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . Whether the 2004 amendment actually changes the calculation of the gravity of the offense (traditionally, the value of the property taken in the individual larceny or transaction—i.e., "the offense") is an open question, but not one presented by this case as there is no dispute that each individual item was valued beyond the threshold for grand larceny. See Nations v. State, 199 So.3d 1265, 1274-75 (¶ 31) (Miss. Ct. App. 2016) (expressing skepticism that the amendment altered the preexisting rule for valuation but not deciding the issue).

      . Although the trial court offset restitution by the amounts paid by the victims’ insurance, we express no opinion as to whether it was required to do so.

      . At the relevant time,- this would have been the former Uniform Rule of Circuit and County Court Practice 8.04; presently it exists as Mississippi Rulé of Criminal Procedure 15.3(d)(2).


source: Caselaw Access Project

author: GRIFFIS, P.J., FOR THE COURT:

license: Public Domain

text:
    Mitchell ROBERTS a/k/a James Mitchell Roberts a/k/a Mitchell James Roberts a/k/a Mitchell J. Roberts a/k/a James Roberts, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00659-COA
    Court of Appeals of Mississippi.
    10/17/2017

      ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA W. BYRD

      BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶. 1. Mitchell James Roberts was convicted of aggravated driving under the influence (DUI) after a jury found that he operated a motor vehicle while under the influence of an intoxicating substance, specifically, Xanax, which impaired his ability to drive, and negligently caused the death of Arnold Altman Jr, Roberts was sentenced to twenty-five years, with seven years suspended, leaving eighteen years to serve in the custody of the Mississippi Department of Corrections, followed by five years of postrelease supervision. Additionally, Roberts was ordered to pay all court costs, a $2,000 fine, and restitution in the amount of $7,150. Following the denial of his posttrial motions, Roberts timely appealed. Upon review, we find, no error and affirm.

FACTS

¶ 2. On July 13, 2013, around 3:00 p.m., fourteen-year-old Altman-Jr., who was a passenger in his father’s .automobile, died when his father’s vehicle was struck head-on by a truck driven by Roberts. The accident occurred on a four-lane bridge on Highway 19 in Meridian.

¶ 3. At the time of the accident, Altman Jr. and his father were traveling to the store. As they were driving, a truck, driven by Roberts and traveling in the opposite direction, crossed the median-like lane, veered into the Altmans’ lane of traffic, and struck the passenger side of the Alt-mans’ vehicle head-on, killing Altman Jr. Many witnesses observed the accident and offered their assistance. Two of the witnesses, Margaret Davis an'd Stephanie Ruffin, were nurses and testified at trial.

¶ 4.. Davis testified that she and her husband were traveling on Highway 19 when Roberts’s,truck veered toward their vehicle, Davis commented to her husband that the driver almost hit them. As her husband continued to drive, Davis turned around and saw the truck veer into oncoming traffic and “implode” into the Altmans’ vehicle. Davis and her husband turned around in order to provide assistance. Davis initially went to Roberts’s vehicle and attempted to give him aid. However, Roberts was incoherent. Davis stated that Roberts was awake, but out of it and could not form a sentence.

¶ 5. In an attempt to explain Roberts’s behavior following the accident, defense counsel suggested that Roberts was suffering from retrograde amnesia. While Davis acknowledged that retrograde amnesia was common in people involved in automobile crashes, she did not think Roberts was suffering from amnesia, but instead thought he appeared to be under the influence of drugs or alcohol. Davis described Roberts’s face as “diaphoretic,” or sweaty, and his pupils as “pinpoint.”

¶ 6. Ruffin also saw Roberts veer out of his lane, of traffic. Ruffin stated it was not an abrupt move, but instead described Roberts as “gradually drifting” out of his lane. Based on Roberts’s driving, Ruffin assumed he was texting and driving, However, Ruffin stated her assumption changed when she saw the impact.

¶ 7. Ruffin initially went to the Altmans’ vehicle and helped Altman out of the car. However, she noticed Altman Jr. was not responsive and did not have a pulse. She then went to Roberts’s truck. Ruffin described Roberts as “in and out” and stated his speech was slurred. When Ruffin asked Roberts what had happened, Roberts responded that he had “blacked out” or “blanked out.”

¶ 8. Detective Greg Crain of the Meridian Police Department testified that he was called to the scene of the accident at approximately 3:30 .p.m. After Crain assessed the scene and took photographs, he went to the hospital, where he eventually spoke with Roberts. Roberts told Crain that the last thing he remembered was leaving his friend’s house in Collinsville. Roberts asked Crain how the passenger of his truck was doing. However, Crain éxpíained to Roberts that he was the only person in his vehicle. Although Roberts did not recall what he was doing at his friend’s house, he admitted to Crain that he had consumed two beers prior to the accident.

¶ 9. Crain executed an affidavit and obtained a search warrant in order for a sample of Roberts’s blood and urine to be. seized and tested for the presence of drugs and alcohol. The samples were collected at 6:35 p.m., over three hours after the accident occurred.

¶ 10. Kara Jackson, a hospital nurse who treated Roberts in the emergency room, testified that Roberts arrived at 3:28 p.m. and was agitated and cursing, but alert, oriented, and able to follow commands. Jackson described Roberts’s eyes as reactive, equal in size, and small, but not pin-, point. According to Jackson, Roberts’s skin was not diaphoretic when he arrived at the hospital.

. ¶ 11. Jackson noted that Roberts was experiencing “amnesia event retrograde,” since he could not recall any details, of the accident. However, Dr. Lindsey Prewitt, an internal-medicine doctor, testified that based on her consultation with Roberts, there was no indication of retrograde amnesia, and there was nothing in his medical history to support such a finding. Additionally, Dr. William Billups III, a surgeon who treated Roberts in the emergency room, testified that based on his consultation with other specialists, there was no indication of any underlying medical problems, including head injury or. seizure, which might have caused or contributed to the accident. - •

¶ 12. When asked ábout his medical history, Roberts advised the hospital staff that he was not taking any medications and was not being treated for any medical issues. However, the blood test revealed Roberts had benzodiazepines in his system. Specifically, the compound identified in his system was alprazolam, otherwise known as Xanax. Further testing revealed Roberts had fifty-one nanograms per milliliter of Xanax in his system. According to expert testimony, this amount of Xanax-is within the therapeutic range. Roberts did not test positive for alcohol.

¶ 13. Maury Phillips, the State’s toxicology expert, testified that Xanax is usually prescribed -to manage anxiety or panic disorders. Phillips1 stated that the two most common side effects of Xanax are drowsiness and light-headedneSs, but also include confusion, sweating, slurred speech, pinpoint pupils, and “Syncope,” which “means that you might faint or black out.” Phillips' explained that the effects of and tolerance to Xanax varied from person to person and were influenced by the duration of use and the amount taken.

¶ 14. Importantly, Phillips testified that impairment can still occur within the therapeutic range. He explained that there was not a direct correlation between driving impairment and drug concentration “like we have for alcohol to say that if you’re a certain number, you’re impaired.”

, ¶ 15. Phillips admittedly did not review Roberts’s medical records and was unable to render an opinion as to whether Roberts was driving impaired based on the concentration of Xanax alone, since the amount in his system was within the therapeutic range. According to Phillips, in order to make an assessment about drug-induced driving impairment, you must consider all of the evidence, including the particular events surrounding the accident, any eyewitness testimony, the results of the toxicology report, and the individual’s information, such as his medical history, drug tolerance, and reason for the drug use.

• ¶ 16. Roberts’s information and medical history regarding his use of Xanaxj including the duration of use, the amount taken, and the reason for use, or whether the medication was even prescribed, was unknown. However, Phillips stated that Davis’s and Ruffin’s observations at the accident scene, along with the testimony regarding Roberts’s erratic driving, were indicators of impairment.

¶ 17. Dr. Richard Ogletree Jr., an expert in toxicology and pharmacology, testified on behalf of Roberts. When asked whether Roberts was impaired, Ogletree, like Phillips, stated that such a determination required specific clinical observations in addition to blood-concentration levels. However, unlike Phillips, Ogletree reviewed Roberts’s .medical records and stated there was no evidence of impairment in the records. Ogletree -stated he could not consider Davis’s ( and Ruffin’s observations at the accident scene, since they were not .made under clinical conditions, nor were they contemporaneously recorded.

¶ 18. Ogletree testified that while fifty-one nanograms of Xanax per milliliter of blood is in the middle of a therapeutic range, a person could still be impaired with such a blood-concentration level. Ogletree agreed that tolerance is important in determining impairment, but could not state whether Roberts had built up a tolerance, since he- had not spoken with Roberts or reviewed any medical history or medical records, other than those related to the accident.

¶ 19. Prior to trial, Roberts moved to suppress the results of the blood sample seized pursuant to the search warrant obtained by Crain. Roberts claimed “there was no probable cause to believe that [he] was operating a motor vehicle under the influence of drugs and/or alcohol,” and, therefore, no “substantial credible evidence” existed to support the issuance of the search warrant. A motion hearing was held wheréin Crain and the municipal court judge who issued the search warrant testified. The circuit court subsequently denied the motion to suppress.

¶20. Following his conviction, Roberts filed a motion for a judgment notwithstanding the verdict and a motion for a new trial, both of which were denied. Roberts now appeals and argues: (1) the evidence was insufficient to support the verdict, (2) the verdict was contrary to the overwhelming weight of the évidence, (8) his confrontation rights were compromised since the circuit court allowed the technical reviewer to testify in lieu of the actual crime-lab analyst, (4) the circuit court erroneously denied his motion to suppress since there was insufficient probable cause to issue the search warrant, and (5) he received an “unfair” trial as a result of the prosecutor’s improper closing arguments.

ANALYSIS

I. Sufficiency of the Evidence

¶ 21. In considering whether the evidence is sufficient to sustain a conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005) (citation omitted). Where 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 proper remedy is to reverse and render. Id. However, if “reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense, the evidence will be deemed to have been sufficient.” Id. (citation and internal quotation marks omitted).

¶ 22. Roberts was convicted of aggravated DUI in violation of Mississippi Code Annotated section 63-11-30(5) (Rev. 2012). The essential elements for such offense are:

(1) that the defendant negligently caused the death, disfigurement, or permanent disability ... of another (2) while operating a motor vehicle under the influence of alcohol or [any other substance,] which has impaired such person’s ability to operate a motor vehicle.

Irby v. State, 49 So.3d 94, 99 (¶ 11) (Miss. 2010) (citing Miss. Code Ann. § 63-11-30(1)(b), (5)).

¶ 23. It is undisputed that Roberts negligently caused the death of Altman Jr. However, Roberts claims the State failed to prove that he was “operating [his] motor vehicle under the influence of ... [any substance,] which ... impaired [his] ability to” drive. Id. We disagree and find sufficient evidence to support the verdict.

¶ 24. The testimonial evidence indicates Roberts swerved recklessly while he-drove and was unable to maintain his lane of traffic or control of his vehicle. Testimony further shows Roberts exhibited the side effects of Xanax, including disorientation, confusion, slurred speech, pinpoint pupils, diaphoretic, and syncope. ■

¶ 25. While both experts opined that the amount of Xanax in Roberts’s system was within the therapeutic range, both agreed that the amount was at a level that could cause impairment and affect his ability to drive. Phillips testified that eight to 640 nanograms per milliliter was the range for DUI-reported arrests. Thus, the amount in Roberts’s system was within a range that caused or contributed to impaired driving in people who had been arrested for DUI.

¶ 26. Additionally, Ogletree' testified regarding a study wherein the test subjects were given one fhilligram of Xanax. The results showed that one ihilligram of Xa-nax, which would equate to around ten nanograms per milliliter in the blood, had a significant impact on the person’s ability to drive. In fact, six out of ten people fell asleep during the study and-could not continue to drive. The study showed photographs of the participants “swerving across the road.” Here, the record shows Roberts had fifty-one nanograms per'milliliter of Xanax in his blood, five times the amount in the study.

' ¶ 27. Both experts agreed that how often a person takes Xanax would affect any reaction he or she experienced. For instance, a person who takes Xanax acutely, or once in a while, would experience more of an effect than a person who had been taking the drug chronically, or multiple times a day for a period of weeks. Whether Roberts took Xanax once or whether he had taken it chronically is unclear. However, it is clear, based on the record, that Roberts was operating a motor vehicle while under the influence of Xanax 'and exhibited signs of impairment.

¶28. Based on the evidence presented, and considering the evidence in the light most favorable to the State, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Accordingly, we find sufficient evidence exists to support the verdict. Thus, Roberts’s motion for a judgment notwithstanding the verdict was properly denied.

II. ■ Weight of the Evidence

¶ 29. “When reviewing a denial of a motion for 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). The evidep.ce is weighed in the light most favorable to the verdict. Id.

¶ 30. Here, the prosecution showed Roberts had Xanax in his system at the time of the accident and exhibited signs of impairment. The fact that conflicting evidence was presented does not warrant the granting of a new trial. See Williams v. State, 64 So.3d 1029, 1032 (¶ 10) (Miss. Ct. App. 2011) (“[A] new trial should be [granted] only in exceptional cases in which the evidence preponderates heavily against the verdict,”). “The jury is the sole judge of the weight of the evidence and the credibility of the witnesses.” Id. at 1033 (¶ 13), “Conflicts in the evidence are for the jury to resolve.” Id.

If 31. Having considered the evidence presented, we do not find the verdict to be so contrary to the overwhelming weight of the evidence that to allow the verdict to stand would sanction an unconscionable injustice. Accordingly, we find the circuit court’s denial of Roberts’s motion for a new trial was proper. ■

III. Roberts’s Confrontation Rights

¶ 32. Phillips, the supervisor for the toxicology arid implied-consent section of the Mississippi Forensics Laboratory, testified regarding the results of Roberts’s blood and urine tests. Although Phillips did not conduct the testing of Roberts’s blood and urine, he served as the technical and administrative reviewer of the primary analyst’s testing and released the report.

¶33. Roberts claims that since Phillips was not actively involved in the production of the lab report and did not reveal an intimate knowledge about the testing, he should not have been allowed to testify- in lieu of the primary analyst who conducted the tests and issued the report. As a result, Roberts claims his “rights to confront his accusers were circumvented.”

¶34. In criminal cases, the accused has a constitutional right to confront the witnesses against him. U.S. Const, amend. VI; Miss, Const, art. 3, § 26. The Mississippi Supreme Court has held that a supervisor, reviewer, or other analyst may testify in lieu of the primary analyst where the surrogate witness was “actively involved in the production of the report and had intimate knowledge of the analyses even though [he or] she did not perform the tests first hand.” McGowen v. State, 859 So.2d 320, 340 (¶ 68) (Miss. 2003). Additionally,

when the testifying witness is a court-accepted expert in the relevant field who participated in the analysis in some capacity, such as by performing procedural checks, then the testifying witness’s testimony does not violate a defendant’s Sixth Amendment rights.

Id. at 339 (¶ 68).

¶ 35. Here, Phillips was a court-accepted expert in the field of toxicology. The record shows Phillips was actively involved in the production of the report, had intimate knowledge of the tests that were performed and the process that was used to confirm the findings, and reviewed the analyst’s work, including the data, tó énsure that the conclusions were correct and accurate.

T36. Specifically, Phillips testified that once an analyst has completed the analysis, his work packet is submitted for review. Phillips explained that all reports issued by an analyst must be technically and administratively reviewed before they are released. Phillips stated that as the technical and administrative reviewer, in this case,'he verified that the analyst followed protocol and used the proper scientific methods of toxicology. Moreover, Phillips stated he received the analyst’s wbrk packet “with all of the data” and examined it to ensure that the policies were followed and that the analyst’s conclusions were accurate and correct. We find Phillips, as the technical and administrative reviewer, was qualified to testify as a surrogate witness in lieu of the primary analyst.

¶ 37. Roberts further claims Phillips, as a surrogate witness, never rendered his own independent opinion, but instead “[became] a mere hearsay conduit for the original analyst.” Roberts argues that “[n]ot requiring a surrogate witness ... to render an independent opinion is, .therefore, inconsistent with Rule 703’ [of the Mississippi Rules of Evidence].” We disagree.

¶ 38. At the time of trial, Rule 703 stated as follows:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Rule 703 allows an expert to base' his opinion on the opinions of others which are not in evidence “so long as experts in the field ordinarily rely on such opinions in forming their own opinions.” Alexander v. State, 759 So.2d 411, 420 (¶ 30) (Miss. 2000). The Mississippi Supreme Court has held that .the opinion of a nontestifying expert is a type of evidence reasonably relied upon by experts in forming their own opinions. Id. at (¶¶ 29-31). Thus, it is admissible hearsay when relied on by a testifying expert. Id.

. ¶ 39. Phillips offered his expert opinion as the technical and administrative reviewer of the primary analyst’s testing. The record shows Phillips testified regarding his findings and analysis of the work and data generated by the primary analyst. Phillips opined that based on the screening methods used and the findings that he confirmed, Roberts’s blood was positive for benzodiazepines, and that the compound in Roberts’s blood was alprazolam, otherwise known as Xanax. Thus, the record makes clear that Phillips was not “so far removed from the analysis as to be essentially a records custodian for the purposes of testifying at trial.” McGowen, 859 So.2d at 339 (¶ 68).

¶ 40'. Overall, we find Phillips’s testimony did not violate Roberts’s constitutional right to confront witnesses against him and was permissible under Rule 703; See Byrd v. State, 741 So.2d 1028, 1033 (¶ 23) (Miss. Ct. App. 1999) (finding defendant in a rape trial was not denied confrontation when the DNA expert had not performed or observed the DNA testing procedures, but testified to her analysis of the scientific data obtained from the technicians).

IV. Motion to Suppress

¶ 41. At the hearing on the motion to suppress, the municipal court judge who issued the search warrant testified that “the only substance that was brought to [his] attention was alcohol.” As a result, Roberts claims the search warrant used to seize his blood was invalid, as no probable cause existed for a drug analysis. Thus, Roberts argues the circuit court erred in denying his motion to suppress.

1142. “The Fourth Amendment prohibition against unreasonable search and seizure applies when an intrusion into the body—such as a blood test—is undertaken without a warrant, absent an emergency situation.” Cole v. State, 493 So.2d 1333, 1336 (Miss. 1986). “A search warrarit is validly issued when based upon probable cause.” Thompson v. State, 92 So.3d 691, 695 (¶ 8) (Miss. Ct. App. 2012) (quoting Phinizee v. State, 983 So.2d 322, 328 (¶ 18) (Miss. Ct. App. 2007)). Our supreme court has described probable cause as follows:

Probable cause is a practical, nontechnical concept, based upon the conventional considerations of everyday life on which reasonable and prudent men, not legal technicians, act. It arises when the facts and circumstances within an officer’s knowledge, or of which he. has reasonably trustworthy information, are sufficient in themselves to justify a man of average caution in the belief that a crime has been committed and that a particular individual committed it.

Id. (citation omitted).

¶ 43. “Probable cause exists where it is based on ‘information reasonably leading an officer to believe that then and there contraband or evidence material to a criminal investigation would be found.’ ” Id. at 696 (¶ 9) (quoting Phinizee, 983 So.2d at 328 (¶ 18)). “[P]robable cause is determined by assessing the ‘totality of the circumstances.’” Id. In reviewing a finding of probable cause, “this Court does not make a de novo determination of probable cause, but only determines if there was a substantial basis for the determinar tion of probable cause.” Id. at 695 (¶ 7) (quoting Roebuck v. State, 915 So.2d 1132, 1137 (¶ 12) (Miss. Ct. App. 2005)). “On appeal, the issuance of a warrant will not be reversed where substantial evidence supports the [issuing judge’s] determination that probable cause existed.” Phinizee, 983 So.2d at 328 (¶ 18).

¶ 44. According to his affidavit and testimony at the suppression hearing, Crain had information that witnesses observed Roberts’s erratic driving and saw him cross over into the oncoming lane of traffic. Additionally, Crain was advised that prior to the accident, an anonymous caller had contacted law enforcement, complained of Roberts’s erratic driving, and provided a license-plate number. When officers arrived at the scene, they were able to confirm the information provided by the anonymous tip. Moreover, when talking to Roberts at the hospital, Crain detected the faint smell of alcohol.

¶ 45. As the circuit court properly noted during the suppression hearing,

Crain felt that it’s obvious that there was an impaired driver, impaired to the point where you are driving erratically and in the wrong lane. A faint smell of alcohol would indicate that [alcohol] may be part of it, but ... that [alcohol is] not all of it. ⅛
The fact that [Crain] didn’t mention what drug that might be, he couldn’t know. That’s why he asked that the blood be tested. And obviously, [Crain] [felt] like he [had] a severely impaired driver and only a faint smell of alcohol. [T]hat’s ... why he asked for the authority to search for alcohol and/or drugs present in [Roberts’s] blood.

If 46. Although the municipal court judge did not recall a discussion regarding potential drug impairment, he acknowledged that Crain’s affidavit specifically stated that blood and urine were needed to determine if Roberts was driving under the influence of drugs or alcohol. Moreover, the municipal court judge acknowledged that the warrant he read and signed authorized drug and alcohol testing.

¶ 47. Considering the totality of the circumstances, we find substantial evidence supports the municipal court judge’s determination that probable cause existed. As probable cause existed for the issuance of the search warrant, the circuit court did not err in denying Roberts’s motion to suppress.

V. Prosecutorial Misconduct

¶ 48. Roberts last asserts the prosecutor committed prosecutorial misconduct during his rebuttal closing argument when he made the following statement:

It ain’t about nothing except you good people in Lauderdale Comity letting him know that you’re not going to allow him to drive impaired on the highway and kill our children.

Although no objection was made in response to the statement, Roberts argues this was an improper “send a message” argument and asks this Court to find plain error.

¶ 49. “The supreme court has condemned any prosecution suggestion that the jurors ‘send a message’ with a verdict.” Forbes v. State, 771 So.2d 942, 950 (¶ 25) (Miss. Ct. App. 2000). To determine whether a “send a message” argument constitutes reversible error, we apply two threshold questions, followed by a two-pronged test, as outlined in Spicer v. State, 921 So.2d 292, 318 (¶ 55) (Miss. 2006). O’Connor v. State, 120 So.3d 390, 399 (¶ 23) (Miss. 2013).

¶ 50. The first threshold inquiry is whether defense counsel objected to the statement at issue. Id. While the failure to contemporaneously object generally waives a claim of prosecutorial misconduct during closing argument, “we will review such a claim if the prosecutor’s statement was so inflammatory that the [circuit] judge should have objected on his own motion.” Id. at (¶ 26). For the second threshold inquiry, we must consider “whether, in light of the surrounding circumstances, defense counsel invited the statement.” Id. at (¶ 24).

¶ 51. If the threshold inquiries are met, then the Court must proceed to the two-pronged test set forth in Spicer and determine “(1) whether the [prosecutor’s] remarks were improper, and (2) if so, whether the remarks prejudicially affected the accused’s rights.” Id. at (¶ 25) (quoting Spicer, 921 at 318 (¶ 55)).

¶ 52. Here, it is undisputed that no objection was made by defense counsel. Nevertheless, we do not find that the prosecutor’s statement was so inflammatory that the circuit judge should have objected on his own motion. Moreover, the record shows defense counsel invited the statement.

¶ 53. During his closing argument, defense counsel stated as follows:

This question is about whether or. not Mitchell Roberts is criminally responsible for this death. This is not about race.[] This is not about whether black lives matter in Meridian[,] Lauderdale County, Mississippi They do. This is not about' whether there’s equal access to justice in Meridian[,] Lauderdale County, Mississippi!;,] for African Americans as well as white folks. There is. The .issue for y’all to decide is whether or not Mitchell Roberts was impaired by Xanax on that day.

In response, during his rebuttal closing argument, the prosecutor made the following statement:

It ain’t about black/white. It ain’t about nothing except you good people in Laud-erdale ' County letting him know that you’re not going to allow him to drive impaired on the highway and kill our' children,

(Emphasis added to note the portion omitted by Roberts).

¶54. Based on the transcript, it appears Roberts has taken the prosecutor’s comment out of context. “Given the latitude afforded an attorney during closing argument, any allegedly improper prosecutorial comment[s] must be considered in context, considering the circumstances of the case, when deciding on their propriety.” Ahmad v. State, 603 So.2d 843, 846 (Miss. 1992). Considering the context in which the comment was made and the circumstances of the case, we And the prosecutor’s remarks were made in response to the defense counsel’s comments on race.

155. Upon review, we find, the prosecutor’s statement was invited by defense counsel and was not so inflammatory that the circuit judge should have objected. As a result, the threshold inquiries for prose-cutorial misconduct. have not been met, and this issue is.,therefore waived. See O’Connor, 120 So.3d at 400 (¶ 27).

¶ 56. Notwithstanding the waiver, we find the prosecutor’s comments do not survive the two-part test of Spicer. A'statement is not “improper simply because it sends a message that the community will not tolerate violence .... ” Spicer, 921 So.2d at 318 (¶ 55). Instead, a statement is improper if it “tend[s] to cajole or coerce a jury to reach a verdict for the purpose of meeting public favor and not based on the evidence.” Id.

¶ 57. Here, defense counsel advised the jury that it must decide whether Roberts was impaired by Xanax and was therefore criminally responsible for Altman Jr.’s death. In response, the prosecutor advised that if the jury determined that Roberts drove impaired and killed fourteen-year-old Altman Jr., he "would face the consequences of his actions. Such comments did not urge the jury to reach a verdict based on emotion or public favor. Instead, the comments were based on the evidence presented at trial.

¶ 58. Additionally, Roberts’s rights were not prejudicially affected by the prosecutor’s remarks. Indeed, a review of the record shows that absent the prosecutor’s comments during closing arguments, the jury would still have found Roberts guilty. See Brown v. State, 986 So.2d 270, 276 (¶ 16) (Miss. 2008) (To meet the second prong of the Spicer test, it must be clear that absent the prosecutor’s comments, the jury would have found the defendant guilty.). Accordingly, Roberts’s claim of prosecutorial misconduct fails.

CONCLUSION

¶ 59. We find the judgment of the Laud-erdale County Circuit Court of conviction of aggravated DUI and sentence of twenty-five years'in the custody of the Mississippi Department of Corrections, with seven years suspended and eighteen years to serve, followed by five years’ reporting postrelease supervision, a $2,000 fine, and $7,150 in restitution, should be affirmed.

¶ 60. AFFIRMED.

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

      . It is undisputed that Roberts was not administered Xanax while in the hospital '

      . The record shows Roberts did not disclose to anyone, including his own expert, any information regarding his use of Xanax.

      . The primary analyst was Duriel McKinsey, At the time of trial, McKinsey was no longer employed at the crime lab and no longer lived in Mississippi.

      . The Mississippi Rules of Evidence were stylistically revised, effective July 1, 2016.

      . Roberts is Caucasian; Altman Jr. was Afri--can American.


author: GREENLEE, J.,

text:
    Delbert Ray ALEXANDER, Appellant v. Billy Joe PITTS, Jr., Appellee
    NO. 2016-CA-01471-COA
    Court of Appeals of Mississippi.
    11/14/2017

      ATTORNEY FOR APPELLANT: MICHAEL DUANE MITCHELL, LAUREL
    ATTORNEY FOR APPELLEE: JOHN ANTHONY PIAZZA
    BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.
   GREENLEE, J.,

FOR THE COURT:

¶ 1. Billy Joe Pitts Jr. purchased real property from a person who had acquired it through a tax sale and successfully quieted title to the property. Pitts and his neighbor, Delbert Ray Alexander, subsequently had a dispute over their boundary line. Pitts and Alexander litigated the boundary-line dispute for years. The chancellor ultimately held that to the extent that Alexander had raised an adverse-possession claim, it lapsed due to the tax sale. On appeal, Alexander claims he did not have proper notice of the tax sale or the action quieting title to the property. Alexander’s collateral attack on those proceedings is unrelated to the litigation that led to this appeal—an adverse-possession claim that he never properly alleged in a complaint—and he attempts to raise it for the first time on appeal. Therefore, we affirm the chancellor’s judgment. As we grant Pitts’s motion for attorney’s fees on appeal, we remand the case so the chancellor can determine the amount of attorney’s fees and costs payable to Pitts for defending this appeal.

FACTS AND PROCEEDINGS BELOW

¶2. This litigation between adjoining landowners concerns a portion of the approximately six-acre property that Sherry Lowe bought at a 2001 tax sale. In March 2010, Lowe got a judgment quieting and confirming her title to the property. Lowe later sold that property and other land to Pitts.

¶ 3. In September 2011, Alexander filed a complaint for a preliminary injunction to prevent Pitts from trespassing over a “common boundary [that] ha[d] been separated by a fence and shrubs for more than ten ... years.” Alexander conceded that the property had been surveyed, and the fence was “not on the forty line.” Alexander also alleged that Pitts had removed some of Alexander’s personal property from the “disputed land.”

¶ 4. Pitts moved to dismiss Alexander’s complaint. Citing Mississippi Code Annotated section 27-45-23 (Rev. 2010) and Massey v. Lewis, 21 So.3d 644, 648 (¶¶ 11-12) (Miss. Ct. App. 2008) (parties with an adverse-possession claim relinquished it when they allowed the property at issue to be sold along with adjoining property at a tax sale), Pitts argued that any claim Alexander had to the disputed property had lapsed due to the tax sale. Pitts also noted that he and Alexander had agreed in advance of a survey to abide by its results, and the survey showed that the property at issue belonged to Pitts. However, Pitts admitted that he had removed some of the abandoned castoffs that Alexander had dumped on the land.

¶ 5. The chancellor conducted a hearing on October 3, 2011. The record does not include a transcript of it or any other hearing in the case. The next day, the chancellor entered an order denying Alexander’s request for a preliminary ■ injunction “at this time.” The chancellor gave Alexander thirty days to remove his personal property from the land and amend his complaint “to reflect his claim-of ownership through adverse possession of [the] property in question .... ”

¶ 6. As of July 2012, Alexander had not filed an amended complaint; so Pitts filed another motion to dismiss Alexander’s initial complaint. Nearly a year later, Alexander finally filed an amended complaint asserting that he had acquired the land through adverse possession. Pitts moved to dismiss it because it was untimely, Alexander’s interest in the land had lapsed due to the tax sale, and Alexander should have joined Lowe’s action to quiet and confirm her title to the property.

¶ 7. In November 2013, the parties convened for a hearing. As mentioned above, the record does not contain any transcripts. The hearing resulted in Pitts’s attorney’s preparation of a' proposed stipulation of facts and order. Alexander’s attorney had not signed it as of June 2014. In November 2015, Pitts’s attorney filed a motion for a trial setting. Within it, Pitts’s attorney stated that “Alexander, through his counsel, ... announced to [the chancellor] that he would be filing an appeal to the Mississippi Supreme Court ... over [a] year ago, but ... no appeal was ever[ fjiled .... ”

¶ 8. On February 9, 2016, the chancellor entered a document styled “stipulation of facts and order.” According to that document, during the November 2013 hearing, Alexander announced that he was aggrieved because he did not receive notice of the tax sale, and Lowe did not serve him with “[personal service or notice of her suit to quiet and confirm title [to the] property.” The chancellor added that “Alexander never made any such assertion prior to the instant pending litigation

¶ 9. After detailing the stipulated facts of the case, the chancellor held that “Alexander’s interest in the land at issue would have lapsed during the time [that] the municipality held title to the land, prior to the tax sale ....” Consequently, the chancellor held that Alexander’s adverse-possession claim failed. The chancellor further held that “[a]ll statutory requirements of public notice and publication were met during the tax sale, the issuance of the tax deed, and the subsequent [s]uit to quiet and confirm title.” Finally, the chancellor related that “[c]ounsel for ... Alexander desires the appellate [c]ourt to review the existing notification requirements of both the tax sale, issuance of the tax deed, andl7]or the suit to quiet and' confirm' title.” Consequently, the chancellor held that “all factual testimony or evidence except that stipulated herein by the parties[ ] is held in abeyance for a future hearing consistent with the appellate [cjourt’s opinion.”

¶ 10. Represented by different counsel, on March 7, 2016, Alexander filed a motion for a new trial so he could “put on evidence of the total lack of substantive due process” regarding the tax sale and Lowe’s complaint to quiet and confirm her title to the land. Pitts argued that the lack of a previous- trial in the case invalidated Alexander’s request for a “new” trial. On October 3, 2016, the' chancellor entered an order denying Alexander’s motion for a new trial; The chancellor also adopted the February 9, 2016 order “as the fflinal judgment in this case for purposes of appeal.” Alexander appeals.

DISCUSSION '

¶ 11. On appeal, Alexander does not challenge any decision that the chancellor made in this case. Instead, he attempts to collaterally attack the tax sale and Lowe’s complaint to quiet and confirm title to the land.' Although he cites authority discussing due-process requirements in general terms, he cites nothing in support of his claim that he was entitled to personal service of process incident to the tax sale or Lowe’s complaint to quiet and confirm title. See . M.R.A.P. 28(a)(7). Likewise, he cites no authority that would support his ability, to collaterally attack them through this appeal of what we construe as an agreed judgment in Pitts’s favor. These failures operate as a procedural bar to his claims. SASS Muni-V LLC v. DeSoto Cty., 170 So.3d 441, 449 (¶ 28).(Miss. 2015).

An .appellant cannot give cursory treatment to an issue and expect this Court.to uncover a basis for the claims, either in the record or in the law. Simply put, we will not act as an advocate for one party to an appeal. The appellant must affirmatively demonstrate error in the court below, and failure to do so waives an issue on appeal.

Satterfield v. State, 158 So.3d 380, 383 (¶ 6) (Miss. Ct. App. 2015). As such, we affirm the chancellor’s judgment.

¶12; On a related note, Pitts has filed a motion for sanctions as set forth in Rule 38 of the Mississippi Rules of Appellate Procedure. Pitts requests that this Court remand the case to the chancellor “for- determination of attorney[’s] fees and expenses” and order that Alexander pay double Pitts’s costs for defending this appeal. Alexander did not respond.

¶ 13. “In a civil- case if the ... Court of Appeals shall determine that an appeal is frivolous, it shall award just damages and single or double costs to the appellee.” M.R.A.P. 38. “Whether an appeal is frivolous pursuant to Rule 38 is evaluated using the standard from Mississippi Rule of Civil Procedure 11. Accordingly, an appeal is frivolous where the appellant has no hope of success.” Flowers v. Boolos (In re Estate of Smith), 204 So.3d 291, 316 (¶ 60) (Miss. 2016).

¶ 14. Alexander agreed to the judgment denying his claim for a preliminary injunction against Pitts. His appeal has nothing to do with that cause of action..Instead, he attempts to collaterally attack the tax sale and the judgment confirming Lowe’s title to the property as.some form of an end-run against Pitts. And although the chancellor seemed to address them to some extent,. apparently over Pitts’s objection and despite the fact that Alexander had not properly filed an amended complaint, Alexander never asserted the collateral attacks that he now advances bn appeal. Instead, he wanted “the appellate [c]ourt to review the existing notification requirements of the sale, the issuance of the tax deed, and/or [the] suit to quiet and confirm title.” An issue that has not been presented to the trial court is procedurally barred on appeal. /& at 313 (¶ 49). Because Alexander clearly relied on the idea that he would circumvent the chancellor and raise an issue for the first time on appeal, his attempted collateral attack on judgments that did not stem from the underlying litigation had no hope of success.

¶ 15. Pitts’s motion is granted. We remand this case to the Jones County Chancery Court, Second Judicial District, for a determination of the attorney’s fees and costs that Pitts incurred in defending the present appeal, and for the entry of an appropriate judgment.

¶ 16. AFFIRMED AND REMANDED.

LEE, C.J., ÍRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON AND WESTBROOKS, JJ., CONCUR. TINDELL, J„ NOT PARTICIPATING.

      . Section 27-45-23 provides that a chancery clerk’s tax deed "shall vest in the purchaser a perfect title with the immediate right of possession to the land sold for taxes."

      . Pitts attached three signed and witnessed statements supporting his claim that he and Alexander had verbally agreed to "honor the survey line ... as ... the property line separating the properties.”

      .Pitts had asked Alexander numerous times to remove his personal property, which included "old equipment, an unburied septic tank, an old abandoned trailer, a storage van[,]” old car batteries, a school bus, and old tires. An investigator from the Mississippi Department of Environmental Quality described the area as "an unauthorized landfill

      . Alexander filed his amended complaint under the wrong cause number.

      . The order noted Pitts’s position that Alexander had not asserted an adverse-possession claim.

      . See M.R.C.P. 15(a); D.P. Holmes Trucking LLC v. Butler, 94 So.3d 248, 255 (¶ 20) (Miss. 2012) ("If a party fails to seek leave of the court or permission of the opposing party prior to amending the pleadings, such amendment is improper and will be struck.”).