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

text:
    Keith FRISTON a/k/a Key-Man a/k/a Keith Ladell Friston, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01467-COA
    Court of Appeals of Mississippi.
    August 8, 2017 Rehearing Denied February 13, 2018 Certiorari Denied May 24, 2018
    OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN T. COOK, ATTORNEY FOR APPELLANT.
    OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT, ATTORNEY FOR APPELLEE.
    BEFORE GRIFFIS, P.J., FAIR AND WILSON, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Keith Friston appeals his convictions of aggravated driving under the influence and felony leaving the scene of an accident. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On August 17, 2013, Clarksdale police officer Howard Woodward responded to an automobile accident. When he arrived at the scene, Woodward saw a white Oldsmobile Alero against a brick wall, and found Norman Williams and Valerie West on the ground outside of the car. Williams was injured, but conscious and able to walk. However, West was deceased. Williams identified Friston as the driver of the car. Woodward did not see Friston at the scene of the accident.

¶ 3. Friston was subsequently located by Clarksdale patrol officer Byron Vaughan not far from the scene of the accident. Friston was placed in Vaughn's vehicle and taken to the hospital.

¶ 4. Kendrick Walker, an investigator with the Clarksdale Police Department, received permission to obtain blood samples from Friston and Williams. Laboratory analysis showed Friston tested positive for the presence of marijuana and had a blood-alcohol level of .19. Williams tested negative for alcohol, but positive for marijuana. Two days after the accident, Friston gave a statement to Investigator Walker, during which Friston admitted that at the time of the accident, he was driving the car.

¶ 5. Friston was indicted on Count I, aggravated driving under the influence, and Count II, felony leaving the scene of an accident. The indictment was subsequently amended to charge Friston as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2015).

¶ 6. This matter initially went to trial in November 2014. However, during trial, Dr. Erin Barnhart, the forensic pathologist who performed West's autopsy, became ill and was unable to testify. The State of Mississippi moved for a mistrial, which was granted over Friston's objection.

¶ 7. The matter was retried beginning February 17, 2015. At trial, Williams testified that, at the time of the accident, Friston was driving the car, he was in the passenger seat, and West was in the back seat. Williams was unable to state whether Friston had been drinking on the day of the accident.

¶ 8. Dr. Barnhart identified various autopsy photographs, which showed West's injuries. Dr. Barnhart opined that West's cause of death was blunt force trauma to the head and torso, and that her manner of death was an accident.

¶ 9. Friston testified in his own defense. Friston stated he and West had been in a relationship since 2007. Friston further stated he had worked for Lew Houston, a contractor, for ten years. Houston typically picked up Friston for work since, according to Friston, "[he] never drives because [he is] always under the influence of alcohol." Although he claimed to never drive, Friston admitted that he purchased the Alero and that it was his car.

¶ 10. Friston testified that, on the day of the accident, he, Williams, and West went by Houston's house to check on him. Friston stated Williams was driving the car when they left Houston's house. Moreover, Friston stated that at the time of the accident, Williams was driving the car, West was in the passenger seat, and he was sitting in the back on the driver's side. Friston acknowledged that as a result of the impact, Williams was injured and West died, yet he was not injured. Friston further acknowledged that most of the impact from the accident was on the passenger side of the car, with little damage to the driver's side. However, Friston denied that this indicated he was driving at the time of the accident, with Williams on the passenger side.

¶ 11. Friston admitted that during his statement to the police, he stated he was driving the car at the time of the accident. However, Friston claimed he only said that to cover up for Williams, as he considers Williams his nephew.

¶ 12. Friston stated he left the scene of the accident to get help. However, he admitted that despite "a lot of houses" in the subdivision, he never went to one of the houses for help.

¶ 13. Friston attempted to call Houston as a witness during the retrial. Houston had previously testified at Friston's first trial. However, the circuit court excluded Houston's testimony at the retrial.

¶ 14. Friston was convicted on both counts and sentenced, as a habitual offender, to twenty-five years in Count I, and twenty years in Count II, to run concurrently, for a total of twenty-five years to serve in the custody of the Mississippi Department of Corrections. He was also ordered to pay a fine in the amount of $5,000. Following the denial of his post-trial motions, Friston appealed.

¶ 15. On appeal, Friston argues: (1) the retrial violated his right against double jeopardy since the mistrial was not manifestly necessary, (2) the circuit court erroneously excluded Houston's testimony, and (3) the circuit court failed to instruct the jury on the specific act of negligence and, as a result, constructively amended the indictment.

ANALYSIS

I. Double Jeopardy

¶ 16. Friston first argues the circuit court erroneously granted the State's motion for mistrial since a mistrial was not manifestly necessary. As a result, Friston claims the retrial violated his constitutional right against double jeopardy.

¶ 17. "[T]he decision to declare a mistrial is within the sound discretion of the trial judge." Whitaker v. State , 114 So.3d 725, 730 (¶ 14) (Miss. Ct. App. 2012). "If a mistrial is granted upon the court's motion or upon the State's motion, a second trial is barred because of double jeopardy, unless taking into consideration all the circumstances[,] there was a 'manifest necessity' for the mistrial." Jenkins v. State , 759 So.2d 1229, 1234 (¶ 18) (Miss. 2000) (citing Watts v. State , 492 So.2d 1281, 1284 (Miss. 1986) ). While "a defendant has a valued constitutional right to be tried by a particular jury," that "right is sometimes subordinate to the public interest in allowing the prosecutor one full and fair opportunity to present his case to an impartial jury." Id . at 1234-35 (¶¶ 21-22).

¶ 18. Friston asserts the testimony of Dr. Barnhart was unnecessary since the law does not require an autopsy or medical evidence to establish cause of death. Friston contends the State could have had the coroner testify or could have offered into evidence a death certificate. However, "the mere existence of alternatives does not bar a second trial." Leslie v. State , 171 So.3d 549, 552 (¶ 4) (Miss. Ct. App. 2015). The forensic pathologist who performed the autopsy was the proper witness to identify and authenticate the autopsy photographs, not the coroner. Moreover, there is no indication that the coroner was available to testify on such short notice or was even able to testify as to the cause of death. Additionally, there is no indication that a properly certified copy of the death certificate was available during trial.

¶ 19. Taking into consideration all the circumstances, we find there was a manifest necessity for the mistrial. While cause of death is not an element of aggravated driving under the influence, the State must prove a causal connection between the car accident and the victim's death. Therefore, Dr. Barnhart's testimony was necessary to show that West died from blunt force trauma to the head and torso received in the car accident. Accordingly, the circuit court did not abuse its discretion in declaring a mistrial, and Friston's subsequent retrial did not violate his right against double jeopardy.

II. Exclusion of Houston's Testimony

¶ 20. Friston next argues the circuit court improperly excluded Houston's testimony, thereby denying him the opportunity to establish a defense. "The standard of review applied to a circuit judge's admission or exclusion of evidence and testimony is abuse of discretion." Carpenter v. State , 132 So.3d 1053, 1055 (¶ 5) (Miss. Ct. App. 2013).

¶ 21. During the retrial, defense counsel advised the circuit court that based on a conversation he had with Houston on a break, he anticipated that Houston's testimony would be contrary to his former trial testimony. As a result, defense counsel requested that he be allowed to call Houston as a witness in order to impeach him with his former trial testimony.

¶ 22. The following exchange between defense counsel and the circuit court occurred:

DEFENSE: -I'm not asking you to make the decision, whether to call [Houston] or not. I am asking the Court to be allowed-although I know it's not customary-to be allowed to call [Houston] and impeach him.
COURT: In front of the jury?
DEFENSE: Yes, sir.
COURT: I don't believe I can.
....
COURT: I don't know that I can-you know, you want to call him for impeachment purposes, but-
DEFENSE: No, sir.
COURT: -in reality, the impeachment that you want to use, you want the jury to receive as substantive evidence.
DEFENSE: Yes, your Honor.
....
COURT: I don't think I can-I don't believe-under those circumstances, I wouldn't allow you to call Mr. Houston.

¶ 23. "A criminal defendant is entitled to present his defense to the finder of fact, and it is fundamentally unfair to deny the jury the opportunity to consider the defendant's defense where there is testimony to support the theory." Clark v. State , 40 So.3d 531, 542 (¶ 30) (Miss. 2010). "However, all evidence admitted in support of the defendant's theory of the case must comport with the Mississippi Rules of Evidence." Id .

¶ 24. Impeachment tests the credibility of a witness. Lanier v. State , 533 So.2d 473, 487 (Miss. 1988). Friston asserts that pursuant to Mississippi Rule of Evidence 607, "[a]ny party, including the party that called the witness, may attack the witness's credibility." Friston claims his attempt to call Houston as a witness was not made in bad faith, but was an attempt to establish his defense, which was supported by Houston's former testimony. See Carothers v. State , 152 So.3d 277, 284 (¶ 21) (Miss. 2014) ("[T]o prevent abuse of Rule 607, impeachment should not be allowed where the trial court finds the purported purpose of impeachment for offering the statement(s) is in bad faith, or is subterfuge to mask the true purpose of offering the statement(s) to prove the matter asserted.").

¶ 25. However, the record shows Friston did not seek to impeach Houston's credibility with his former testimony. Instead, Friston sought to introduce Houston's former testimony as substantive evidence in support of the central issue of Friston's guilt. While a prior inconsistent statement can be used to impeach the witness's credibility, it is not admissible as substantive evidence of the defendant's guilt. See Brown v. State , 556 So.2d 338, 341 (Miss. 1990) (prior inconsistent sworn statements, which provided substantial support for the central issue of guilt, were not admissible as substantive evidence of guilt).

¶ 26. It is important to note that the circuit court simply denied Friston's attempt to use Houston's former testimony for substantive purposes. The circuit court did not exclude Houston as a witness on these grounds. Instead, the circuit court found Houston's former testimony for that limited purpose would not be allowed. Overall, we find no abuse of discretion in the exclusion of Houston's testimony.

¶ 27. Defense counsel next requested to introduce the transcript of Houston's former trial testimony in lieu of calling Houston as a witness. Pursuant to Mississippi Rule of Evidence 804(b)(1), in order for former testimony to be admissible under the hearsay exception, the declarant must be unavailable as a witness. Here, it is undisputed that Houston was available to testify. Thus, the circuit court did not err in excluding Houston's testimony.

III. Jury Instructions

¶ 28. Friston last argues the jury was not properly instructed on the elements of aggravated driving under the influence. In particular, Friston argues the jury was not instructed on the specific negligent act that caused West's death, as outlined in Friston's indictment. Friston claims the improper instructions resulted in a constructive amendment to his indictment.

¶ 29. At the jury-instruction conference, Friston did not object to the State's elements instruction or the State's negligence instruction, which were subsequently marked Jury Instruction C-20 and Jury Instruction C-21 respectively. "[A]n offended party's failure to object to jury instructions at trial procedurally bars the issue on appeal." Neal v. State , 15 So.3d 388, 397 (¶ 13) (Miss. 2009). As Friston failed to object, he failed to preserve for appellate review his challenge to the instructions. Accordingly, we find this issue is procedurally barred.

¶ 30. Procedural bar notwithstanding, we find the issue is without merit. "It is well settled that jury instructions generally are within the discretion of the trial court, and the appropriate standard of review is abuse of discretion." Faust v. State , 113 So.3d 614, 616 (¶ 9) (Miss. Ct. App. 2013) (quoting Bolton v. State , 87 So.3d 1129, 1132 (¶ 10) (Miss. Ct. App. 2012) ). Jury instructions must be read together as a whole. Wilson v. State , 967 So.2d 32, 36 (¶ 11) (Miss. 2007). When so read, "if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law, no error results." Id . at 36-37 (¶ 11).

¶ 31. Count I of the Indictment alleged Friston:

[D]id unlawfully, willfully and feloniously drive or otherwise operate a motor vehicle ... while under the influence of an intoxicating liquor, or any other substance, to wit: marijuana, which impaired his ability to operate a motor vehicle, or while having a concentration of [eight] one-hundredths percent of alcohol (.08%) or more in his blood ... and did, in a negligent manner, cause the death of Valerie West, by running off the roadway and into a brick wall[.]

(Emphasis added). Jury Instruction C-20 instructed the jury:

[I]f you find from the evidence in this case beyond a reasonable doubt ... that:
1. On or about August 17, 2013, that the Defendant, [Friston], negligently caused a motor vehicle accident resulting in the death of [West], a living human being, when he was driving or operating a motor vehicle, to-wit: a white Oldsmobile Alero, and
2. the Defendant, [Friston], was driving or operating said motor vehicle while under the influence of an intoxicating liquor, or any other substance, to-wit: marijuana, that impaired his ability to operate his motor vehicle, or
3. the Defendant, [Friston], was driving or operating said motor vehicle while having a blood concentration level of eight one-hundredths percent of alcohol (.08%) or more, then you should find the defendant guilty of DUI Death in Count One.

¶ 32. Friston argues that in order to convict him of aggravated driving under the influence, the State "had to prove that [he] drove while under the influence ... and that he caused West's death [by running off the roadway and into a brick wall]." Friston claims the circuit court "failed to instruct the jury on the specific negligence the jury should find before convicting Friston of the crime." As a result, Friston argues the circuit court constructively amended his indictment "by omitting the specific act of negligence." We disagree.

¶ 33. "[N]ot all variances between the indictment and instructions constitute a constructive amendment." Graham v. State , 185 So.3d 992, 1001 (¶ 25) (Miss. 2016). "The central question [we] must ask when reviewing an alleged constructive amendment is whether the variance is such as to substantially alter the elements of proof necessary for a conviction." Id .

¶ 34. "The elements of DUI homicide are (1) operating a vehicle while under the influence of an intoxicating liquor, or operating a vehicle with [.08%] or more by weight volume of alcohol in the person's blood; and (2) causing the death of another in a negligent manner." Andino v. State , 125 So.3d 700, 703 (¶ 8) (Miss. Ct. App. 2013) ; see also Miss. Code Ann. § 63-11-30(1), (5) (Rev. 2013). The State is not required to prove a specific act of negligence, only that the death was caused in a negligent manner. Thus, contrary to Friston's claim, the jury was not required to be instructed on a specific negligent act, i.e., running off the roadway and into a brick wall, in order to convict him of the charge. Instruction C-20 simply removed language that was unnecessary to prove.

¶ 35. Additionally, Instruction C-20 did not materially alter Friston's defense. Friston claims he was not driving the car at the time of the accident. Whether Friston was negligent by running off the roadway and into a brick wall does not affect this defense. Accordingly, the removal of such language was immaterial.

¶ 36. We find the jury was properly instructed on the elements of aggravated driving under the influence. Instruction C-20 did not constructively amend Friston's indictment, as the instruction did not substantially alter the elements of proof necessary for a conviction, and did not materially alter his defense.

¶ 37. AFFIRMED.

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


source: Caselaw Access Project

author: WESTBROOKS, J., FOR THE COURT: LEE, C.J., DISSENTING:

license: Public Domain

text:
    Shalonda Nikkia VALE a/k/a Shalonda N. Vale a/k/a Shalonda Vale a/k/a Shalondra Nikkia Vale a/k/a Shalondra Vale, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00914-COA
    Court of Appeals of Mississippi.
    August 29, 2017 Rehearing Denied January 16, 2018 Certiorari Denied May 24, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE
    EN BANC.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. Shalonda Vale and Kawaskei Bender were charged as codefendants with burglary of a dwelling. After Vale's jury trial in the Circuit Court of Jones County, she was sentenced to twenty-one years in the custody of the Mississippi Department of Corrections (MDOC), with seventeen years to serve, and the remaining four years suspended for postrelease supervision (PRS). Vale filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which was denied. Vale appeals, raising two issues:

I. Whether the indictment was fatally defective; and
II. Whether the indictment was constructively amended by jury instruction S-1.

After review of the record, we find Vale's indictment neglected to allege an essential element of the crime of burglary of a dwelling under Mississippi law. Accordingly, we reverse the judgment of the circuit court and render a dismissal of the indictment.

FACTS AND PROCEDURAL HISTORY

¶ 2. After arriving home from work, Carolyn Mulloy observed dust by her apartment door. Inside her apartment, Mulloy noticed a white envelope of coins and other valuables were missing. Mulloy filed a police report with the Laurel Police Department, and an officer advised her to check the local pawn shops to see if any of the shops were in possession of her missing items.

¶ 3. An employee at "The Gold Shop" notified Mulloy that a bag of jewelry and several other items had been sold to the shop. Mulloy testified the shop had several items of jewelry she did not even realize were missing. These items included a wedding-ring set, earrings, and various gold rings. The shop employee also noted that a high-school class ring and a University of Massachusetts class ring had already been sent to be melted down. The Gold Shop provided Mulloy with the names of two individuals responsible for selling the jewelry. Mulloy recognized the names of Vale and Bender, because the individuals lived together above her in the same apartment complex.

¶ 4. Mulloy submitted both Vale and Bender's names to Brandon Evans, an investigator with the Laurel Police Department. Shortly thereafter, Vale was arrested at her home. After waiving her right to an attorney, Vale confessed on videotape to burglarizing Mulloy's apartment. Vale confessed that she broke the lock on Mulloy's apartment door with a fingernail file and took the jewelry from Mulloy's night stand. Vale also confessed that she took coins in a white envelope from Mulloy's apartment. Vale told Detective Evans where all the items were located in Mulloy's home at the time she broke in, and that Bender was not with her during the time of the burglary.

¶ 5. However, at trial, she vehemently denied burglarizing Mulloy's home. Vale testified she confessed to the burglary because Bender stated he could not "take another charge." She testified Bender gave her the items of jewelry and said they belonged to his grandmother. Vale stated she took the jewelry to The Gold Shop, along with Bender's identification, and sold the items for cash.

¶ 6. Also at trial, Bender testified he broke into Mulloy's apartment alone, gave the stolen items to Vale, and asked her to find out whether the jewelry was real to possibly sell for cash. Bender stated he told Vale the jewelry belonged to his grandmother. Bender testified that Vale likely made up the story about her burglarizing Mulloy's apartment, because he would face life in jail for a conviction of burglary.

¶ 7. A jury found Vale guilty of burglary of a dwelling. She was sentenced to twenty-one years in the custody of the Mississippi Department of Corrections, with seventeen years to serve, and with four years suspended, based upon the successful completion of four years of PRS. Vale filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The motion was denied. Vale timely appeals.

STANDARD OF REVIEW

¶ 8. "The issue of whether an indictment is fatally defective is an issue of law and deserves a relatively broad standard of review by this Court." Snowden v. State , 131 So.3d 1251, 1255 (¶ 11) (Miss. Ct. App. 2014). "As the issue involves a question of law, this Court applies a de novo standard of review." Id. (internal citation omitted).

DISCUSSION

I. Whether the indictment was fatally defective.

¶ 9. The Mississippi Supreme Court has held that "where a deficiency appearing in an indictment is non-jurisdictional, it may not be raised for the first time on direct appeal absent a showing of cause and actual prejudice." Brown v. State , 37 So.3d 1205, 1209 (¶ 9) (Miss. Ct. App. 2009). However, "[the] courts have identified two instances where deficiencies are deemed jurisdictional: where the indictment fails to charge a necessary element of a crime, and where there exists no subject matter jurisdiction." Id. at 1209-10 (¶ 9) (citation and quotation marks omitted).

¶ 10. Vale did not object to the indictment before or during trial; however, the supreme court has previously held that "since the intent to steal was an essential element of the crime[,] the appellant's failure to demur to the indictment did not constitute a waiver of [the] right to raise the question on [a] motion for a new trial and on appeal." Taylor v. State , 214 Miss. 263, 268, 58 So.2d 664, 666 (1952) (citations omitted).

¶ 11. The indictment against Vale states:

[I]n said County, District, and State, on or about the 27th day of April, 2015, A.D., [Vale] did then and there unlawfully, feloniously, and burglarious break into and enter the dwelling house of Carolyn Mulloy located at [address redacted], Laurel, MS, wherein valuable things were kept for use, and did carry away jewelry :
in violation of Section 97-17-23, Mississippi Code of 1972, and contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Mississippi.

Mississippi Code Annotated section 97-17-23(1) (Rev. 2014) reads as follows:

Every person who shall be convicted of breaking and entering the dwelling house or inner door of such dwelling house of another, whether armed with a deadly weapon or not, and whether there shall be at the time some human being in such dwelling house or not, with intent to commit some crime therein , shall be punished by commitment to the custody of the Department of Corrections for not less than three (3) years nor more than twenty-five (25) years.

(Emphasis added).

¶ 12. Vale argues her indictment was defective, because it failed to set forth the element of "intent to commit a crime" inside Mulloy's dwelling. "Numerous Mississippi cases have held that the failure to include an essential element of the crime in the indictment is a jurisdictional defect that cannot be cured with extrinsic proof." Patton v. State , 34 So.3d 563, 573 (¶ 33) (Miss. 2010) (Kitchens, J., specially concurring) (citations omitted). "Thus, the indictment's failure to charge an essential element of the crime, value, violates fundamental federal and state constitutional rights and requires automatic reversal." Id. at 573-74 (¶ 33). We agree.

¶ 13. Vale's indictment failed to include the element "with intent to commit some crime therein." The words "wherein valuable things were kept for use, and did carry away jewelry" do not equate to the statutory element needed to indict Vale on the charge of burglary of a dwelling. "It has been uniformly holden, that where the evil intent accompanying an act is necessary to constitute such act a crime, the intent must be alleged in the indictment, and proved; and the intent with which the act was done, must be proved to be the same with that charged." Taylor , 214 Miss. at 267, 58 So.2d at 665. In Taylor, the supreme court reversed a conviction and quashed an indictment, because the indictment failed to allege an "intent to steal." Id. at 267-68, 58 So.2d at 664-66.

¶ 14. "An indictment must contain (1) the essential elements of the offense charged, (2) sufficient facts to fairly inform the defendant of the charge against which he must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense." Spearman v. State , 80 So.3d 116, 119 (¶ 12) (Miss. Ct. App. 2011) (citations omitted).

¶ 15. "The supreme court has repeatedly held that indictments based on statutory offenses are void if they do not charge all essential elements of the statutory crime." Gales v. State , 131 So.3d 1238, 1240 (¶ 10) (Miss. Ct. App. 2013) (citing Spears v. State , 253 Miss. 108, 116, 175 So.2d 158, 161-62 (1965) ). Accordingly, we find Vale's indictment failed to charge her with a crime under Mississippi law. This constitutional error requires dismissal of the indictment and reversal of Vale's burglary conviction.

II. Whether the indictment was constructively amended.

¶ 16. Vale argues that her indictment was constructively amended due to the variance in the indictment and jury instruction S-1. "Not all variances between the indictment and instructions constitute a constructive amendment." Graham v. State , 185 So.3d 992, 1001 (¶ 25) (Miss. 2016) (citing Bell v. State , 725 So.2d 836, 855 (¶ 61) (Miss. 1998) ). "The central question [a] [c]ourt must ask when reviewing an alleged constructive amendment is whether the variance is such as to substantially alter the elements of proof necessary for a conviction." Id. (quotation marks omitted). "As long as the change does not materially alter facts which are the essence of the offense on the fac[e] of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood in a way that would prejudice the defendant's case, then the amendment is permissible." Id. at 1001-02 (¶ 25). (quotation marks omitted).

¶ 17. "All objections to an indictment for a defect appearing on the face thereof, shall be taken by demurrer to the indictment, and not otherwise, before the issuance of the venire facias in capital cases, and before the jury shall be impaneled in all other cases, and not afterward .... " Brown , 37 So.3d at 1209 (¶ 9) ; see also Miss. Code Ann. § 99-7-21 (Rev. 2015). "Further, the ... [s]upreme [c]ourt has held that where a deficiency appearing in an indictment is non-jurisdictional, it may not be raised for the first time on direct appeal absent a showing of cause and actual prejudice." Id. (quoting Baker v. State , 930 So.2d 399, 404-05 (¶ 9) (Miss. Ct. App. 2005) ) (quotation marks omitted).

¶ 18. Jury instruction S-1 reads in part:

SHALONDA NIKKIA VALE, has been charged with the offense of burglary of a dwelling.
If you find from the evidence in this case beyond a reasonable doubt that:
1. On or about the 27th day of April, 2015, in the Second Judicial District of Jones County, Mississippi;
2. Shalonda Nikkia Vale did unlawfully break and enter;
3. The dwelling house of Carolyn Mulloy located at [address redacted], Laurel, Mississippi;
4. With the intent to commit to steal valuable things once inside ;
then you shall find the defendant, Shalonda Nikkia Vale, guilty of Burglary of a Dwelling.

(Emphasis added).

¶ 19. Notwithstanding the procedural bar, we find Vale's indictment was constructively altered by the jury instruction, because it contained the element "with the intent to commit to steal valuable things once inside," which was not charged in her indictment. Accordingly, this Court finds that Vale's indictment failed to charge her with a crime under Mississippi law, and we reverse her conviction and render a dismissal of the indictment.

¶ 20. REVERSED AND RENDERED.

IRVING, P.J., BARNES, AND ISHEE, JJ., CONCUR. FAIR AND WILSON, JJ., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. LEE, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.

LEE, C.J., DISSENTING:

¶ 21. I disagree with the majority's opinion that Vale's indictment was fatally defective for failure to use the word "intent." The indictment substantially described the offense and fully informed Vale that she was charged with burglary in violation of Mississippi Code Annotated section 97-17-23 (Rev. 2014)-which expressly contains the element of intent. Therefore, the element of intent was set forth in Vale's indictment. Thus, I respectfully dissent.

¶ 22. Mississippi law provides that an indictment "shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation." Williams v. State , 169 So.3d 932, 935 (¶ 9) (Miss. Ct. App. 2014). "The primary purpose of an indictment is to give a defendant fair notice of the crime charged." Id.

¶ 23. Burglary of a dwelling, as codified in section 97-17-23, contains two essential elements: "(1) the unlawful breaking and entering; and (2) the intent to commit some crime when entry is attained." Smith v. State , 150 So.3d 122, 126 (¶ 17) (Miss. Ct. App. 2014) (quoting Parker v. State , 962 So.2d 25, 27 (¶ 9) (Miss. 2007) ). Vale's indictment stated that she did "unlawfully, feloniously, and burglarious[ly] break into and enter the dwelling house ... wherein valuable things were kept for use, and did carry away jewelry; in violation of Section 97-17-23...."

¶ 24. While Vale's indictment did not directly use the word "intent," it did, however, specifically charge Vale with "carry[ing] away jewelry ... in violation of section 97-17-23...." As section 97-17-23 specifies that the crime of burglary includes "intent to commit some crime therein," Vale's indictment, which charged her with violation of section 97-17-23, gave her fair notice of the crime charged, including the element of intent by reference to the statute. Additionally, the indictment specified the actual underlying crime Vale was accused of committing-stealing jewelry. Our courts have noted that the element of intent is "an emotional operation of the mind, and is usually shown by acts and declarations of the defendant .... A defendant's intention is manifested largely by the things [s]he does." White v. State , 195 So.3d 801, 805 (¶ 14) (Miss. Ct. App. 2015) (quoting Dixon v. State , 240 So.2d 289, 290 (Miss. 1970) ). As such, the indictment fully notified Vale of the crime she was charged with committing-burglary of a dwelling-as well as the specific underlying crime she intended to and did commit.

¶ 25. "The ultimate test, when considering the validity of an indictment on appeal, is whether the defendant was prejudiced in the preparation of h[er] defense." Warren v. State , 187 So.3d 616, 621-22 (¶ 10) (Miss. 2016) (quoting Medina v. State , 688 So.2d 727, 730 (Miss. 1996) ). In the instant case, Vale was not in any way prejudiced in the preparation of her defense. Vale did not, at any point before or during her trial, object to the indictment. Vale did not raise the issue in her posttrial motion for a judgment notwithstanding the verdict or a new trial. And Vale's defense did not center on an argument regarding intent. Rather, Vale's defense was that she did not break and enter the dwelling or steal the jewelry at all-that she was not present during the commission of the crime, despite having previously confessed to the crime. Moreover, Vale cannot state on appeal that her defense was prejudiced in that she did not know she was charged with the element of intent. The record clearly shows that the jury instructions proposed by Vale's defense required the jury to find that Vale had broken and entered the dwelling of another "with intent to commit to steal valuable things once inside." As such, it is clear Vale had full knowledge that the crime with which she was charged contained the element of intent.

¶ 26. "The Mississippi Supreme Court has stated, 'so long as a fair reading of the indictment, taken as a whole, clearly describes the nature and cause of the charge against the accused, the indictment is legally sufficient.' " Martin v. State , 65 So.3d 882, 884 (¶ 7) (Miss. Ct. App. 2011) (quoting Sanderson v. State , 883 So.2d 558, 561 (¶ 9) (Miss. 2004) ). With regard to intent, Vale's indictment expressly charged that she did carry away jewelry-evidencing her intent-in violation of section 97-17-23, which expressly states the element of intent. Here, I find that Vale's indictment, read as a whole, clearly charges her with all the essential elements of the crime of burglary and that Vale was not prejudiced in her defense. Thus, I dissent.

¶ 27. The majority also finds that Vale's indictment was constructively amended due to the variance in the indictment and jury instruction S-1. Though the majority acknowledges that the issue is procedurally barred by Vale's failure to object, the majority goes on to find the indictment was constructively altered by the jury instructions. I disagree. Not only is the issue barred from our appellate review, I do not find-as the majority apparently does-that the change materially alters the facts which are the essence of the offense. As such, with respect to this issue, I also dissent and would affirm Vale's conviction.

GRIFFIS, P.J., CARLTON AND GREENLEE, JJ., JOIN THIS OPINION.

      Bender's first name is also spelled "Kawaski" in the record. At the time of Vale's trial, Bender was incarcerated and awaiting trial.

      At the time of the trial, Bender testified he had been charged with conspiracy, possession of marijuana, and possession of synthetic marijuana in Green County. He also testified he had two drug charges and the burglary charge, with Vale, in Jones County.


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

text:
    ESTATE OF Frances Christine JONES, BY AND THROUGH The Duly Appointed and Qualified Executor Sidney JONES ; Sidney Jones, Heir At Law of Frances Christine Jones, Decedent; Lindrith Jones Thompson, Heir At Law of Frances Christine Jones, Decedent; and Jeffrey Patrick Jones, Trustee of the Lindrith Jones Thompson Testamentary Trust, an Unfunded Testamentary Trust Established Pursuant To the Last Will And Testament of Frances Christine Jones, Deceased, Appellants/Cross-Appellees v. Irozenell PRUITT, Appellee/Cross-Appellant and Bocee Pruitt, Appellee
    NO. 2015-CA-01559-COA
    Court of Appeals of Mississippi.
    September 26, 2017 Rehearing En Banc Denied February 20, 2018 Certiorari Denied May 11, 2018
    ATTORNEYS FOR APPELLANTS: PAMELA L. HANCOCK, GLENN S. SWARTZFAGER
    ATTORNEYS FOR APPELLEES: C.R. MONTGOMERY, JOHN PRINCE MARTIN
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. Sidney Jones, Jeffrey Patrick Jones, and Lindrith Jones Thompson-hereinafter collectively referred to as the Joneses-brought a claim against Irozenell Pruitt and Bocee Pruitt-hereinafter collectively referred to as the Pruitts, as to the direct appeal-maintaining that they had acquired ownership of two segments of the Pruitts' land through either adverse possession or a prescriptive easement. The Pruitts responded with a counterclaim for ejectment, and sought damages for trespass and attorneys' fees. Chancellor Janace Harvey-Goree of the Chancery Court of Madison County denied the Joneses' claims, and granted the Pruitts' claims for ejectment and attorneys' fees. The Joneses filed a motion for reconsideration or a new trial, and Chancellor Robert Clark modified the judgment entered by Chancellor Harvey-Goree to eliminate the award of attorneys' fees. The Joneses have appealed, maintaining that the chancery court erred in (1) denying their claims with respect to the two segments of the Pruitts' land, and (2) excluding expert testimony regarding a survey of one segment of the disputed land, which was prepared by a now-deceased surveyor. Irozenell Pruitt filed a cross-appeal, maintaining that the chancery court erred in denying attorneys' fees. We affirm, both on direct appeal and cross-appeal.

FACTS

¶ 2. Frances Christine Jones and her husband bought a 206-acre plot of land in Madison County, Mississippi, in the 1950s. After her husband died in 1968, Frances held title to the land until she died in 1993. Frances's will specified that the land be left in equal parts to her three children, Sidney, Jeffrey, and Lindrith. Although they did not actually hold record title to the land until Frances's estate was closed in 2000, the Joneses frequently used the land for farming and hunting from the 1970s until the 1990s. The Joneses also allowed others to farm or hunt on the land; at trial, several witnesses testified to having utilized the property in that manner.

¶ 3. Bocee Pruitt inherited the property adjacent to the Joneses' property in 1966. Bocee transferred title to her daughter, Irozenell, on October 4, 2011. The Pruitts did not live on the land, and visited infrequently. The Joneses and the Pruitts maintained a peaceful relationship prior to the current dispute.

¶ 4. At trial, Sidney testified that he, his family, and their guests have historically accessed the Joneses' property through a 455-foot section of road-hereinafter referred to as the "roadway"-connecting their property to Patrick Road, a public road. Sidney testified that the road existed at the time his parents bought the property in the 1950s; however, it has since been widened and improved upon. In or about 1974, Sidney installed a gate at the roadway's entrance at Patrick Road. Sidney testified that he never asked for anyone's permission to put the gate up, and that no one ever told him that he could not. Sidney replaced that gate with a larger one approximately twenty years later. Both the old gate and the new gate had locks on them, and Sidney testified that "[o]nly the people that farm the land and people that had a key to the gate, mostly family members," could access the roadway. Sidney testified that the only conversation he had with Bocee regarding his placement of a gate on that road occurred five to ten years prior to trial, when Bocee asked him for a key to the new gate. Sidney testified that he told her "that if it was necessary for them to get to their place through those gates, [he] would gladly give her a key, but it was not necessary. They had their own entrance." Sidney further testified that he "always felt like [he] used [the roadway] as [his] own," and that neither Bocee nor Irozenell ever confronted him as to his use of the roadway, prior to October 8, 2011.

¶ 5. In contrast, Bocee testified at trial that, before transferring title to Irozenell, she "permitted Sidney Jones to hunt on [her] land, to put up a gate to protect [them], to keep people from just driving in doing whatever they wanted to do," and that "Sidney Jones promised [her] that if [she] would let him continue to use the land, he would be [her] eyes because [she] was out of town and he would watch out. And, if anything illegal occurred out there, he would call [her]." Bocee further testified that she had expressly given Sidney permission to erect the gate on the roadway, after he called her and asked to remove the old gate currently in place and replace it with a new one. However, Bocee testified that although she requested a key to the new gate, Sidney never gave her one. Bocee also testified that Sidney had not kept his promise to keep the roadway maintained, and that it had become overgrown and had developed deep holes as a result of his use of heavy machinery on the road.

¶ 6. Both Sidney and Jeffrey testified at trial that their property is landlocked, and that the surrounding properties are owned by multiple neighbors. Jeffrey testified that, to create a new access point, the Joneses would still have to obtain an easement allowing access over one of those properties. Furthermore, building a road pursuant to such a new easement would not be feasible, as a new road would be several miles long and would have to run through plow fields and ditches. In response, Irozenell testified that she never sought to eject the Joneses from the roadway; rather, she wanted them to remove their lock from the gate at the roadway's entrance.

¶ 7. Additionally, Sidney testified that, since 1994, when he and his family hunted the land, they would camp in an area on the very edge of their property, adjacent to a barbed-wire fence. This barbed-wire fence served as the boundary between the Joneses' property and the Pruitts'. The Joneses built an actual "deer[-]camp structure" in the camp area, which consisted of a 750-square-foot wooden shelter, of sorts. Sidney testified that this construction took place in 2001, while Jeffrey testified that it took place "in late [19]99, 2000, 2001." At some point-although the Joneses and Pruitts differ in their accounts as to when-the structure was enlarged to the extent that it crossed the barbed-wire fence and encroached onto the Pruitts' property. Sidney testified that no one ever gave him permission to cross the barbed-wire fence. However, Irozenell testified that a survey was conducted sometime around 2004, which did not reflect that the deer-camp structure was encroaching onto their property. Irozenell further testified that she visited the land in 2004 during a family reunion, and that the structure was not encroaching onto her land at that time.

¶ 8. At some point, Bocee asked Sidney to remove the deer-camp structure from her property. Sidney agreed to do so, but ultimately never did. On October 8, 2011, Bocee, Ironezell, and Bocee's sister delivered an eviction notice demanding that Sidney "remove all buildings, materials, and personal property" from the Pruitts' land, and that Sidney "remove [the] lock from the gate entering the property," within the next thirty days. Sidney agreed to comply but requested an extension of the time period so that he could harvest his crop before winter. The Pruitts orally agreed to extend the thirty-day deadline to the beginning of the next year (2012). However, the Joneses ultimately refused to comply and, as stated above, filed their complaint on December 29, 2011. The Pruitts filed their answer and counterclaim.

¶ 9. The Chancery Court of Madison County, Chancellor Harvey-Goree presiding, conducted a two-day trial. During trial, the Joneses presented Kelly Blake Mendrop, who was admitted as an expert in civil roadway design and construction. Mendrop testified that he had prepared a report using his personal observations of the property, aerial photographs depicting the property, and a survey that had been previously prepared by "Mr. McDonald." Mendrop testified that he used Mr. McDonald's survey as a "basis" for when he looked at the property, but that he "did not review property lines or apparent property lines," nor did he conduct "a detailed review" of the survey. At this point, counsel for the Pruitts objected on the basis that Mr. McDonald was deceased, and that Mendrop was therefore barred from testifying as to "the credibility of the survey and whether or not it was done accurately." The court agreed, finding that Mendrop could not testify as to the truth and veracity of the survey. Mendrop continued his testimony, and counsel for the Joneses asked Mendrop if there were any points on the survey that he verified or identified when he made his personal visit to the property in question. Mendrop began describing the property as it was depicted on the survey, along with his personal observation of the property. At this point, counsel for the Pruitts again objected on the basis that Mendrop could testify from his personal observations of the property, but not in reference to the survey. The survey was not mentioned again during the remainder of Mendrop's testimony.

¶ 10. On January 5, 2015, the court filed its "Findings of Fact, Conclusions of Law, and Judgment," in which it denied the Joneses' claims for adverse possession or a prescriptive easement as to the roadway and denied the Joneses' claim for adverse possession as to the deer-camp structure. The court instructed the Joneses to remove the lock from the gate on the roadway within thirty days. Further, the court granted the counterclaim for ejectment in part, ordering the Joneses to remove their deer-camp structure from the Pruitts' property by February 1, 2015. The chancery court also granted the Pruitts' request for $12,000 in attorneys' fees. The court denied the Pruitts' claim for damages resulting from the alleged trespass.

¶ 11. The Joneses filed a motion for reconsideration or, in the alternative, a new trial. Chancellor Robert G. Clark III-who succeeded Chancellor Harvey-Goree following her retirement from the bench-heard the motion and issued an order on September 16, 2015, in which he upheld all of Chancellor Harvey-Goree's findings except for the award of attorneys' fees to the Pruitts, which he set aside. The Joneses filed a timely notice of appeal on October 14, 2015, and Irozenell filed a notice of cross-appeal on October 19, 2015.

DISCUSSION

¶ 12. When reviewing a chancellor's judgment, we will apply the following standard of review:

On appeal, this Court will not reverse a chancery court's findings, be they of ultimate fact or of evidentiary fact, where there is substantial evidence supporting those findings. We only disturb a chancellor's findings of fact where the chancellor abused his discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal standard. We review questions of law de novo.

McDowell v. Zion Baptist Church , 203 So.3d 676, 681 (¶ 15) (Miss. Ct. App. 2016) (citation omitted).

A. The Joneses' Appeal

1. Whether the chancery court erred in denying the Joneses' claims for adverse possession or a prescriptive easement

¶ 13. The Joneses argue that the chancery court erred in denying their claims for adverse possession or a prescriptive easement with respect to the 455-foot roadway, and for adverse possession with respect to the deer-camp structure. Mississippi Code Annotated section 15-1-13(1) (Rev. 2012) provides:

Ten (10) years' actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title ....

"The standard and burden of proof to establish a prescriptive easement is the same as a claim for adverse possession of land." Morris v. W.R. Fairchild Constr. Co. , 792 So.2d 282, 284 (¶ 7) (Miss. Ct. App. 2001) (citation omitted). In either claim, the following elements must be proven: that use of the property is "(1) under a claim of ownership; (2) actual or hostile; (3) open, notorious and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful." Webb v. Drewrey , 4 So.3d 1078, 1082 (¶ 12) (Miss. Ct. App. 2009). "The person claiming the possession has the burden of proving each of these elements by clear and convincing evidence." Biddix v. McConnell , 911 So.2d 468, 475 (¶ 18) (Miss. 2005) (citation omitted).

a. Roadway

¶ 14. First, the Joneses maintain that the chancery court erred in finding that their use of the 455-foot roadway was permissive-and therefore insufficient to satisfy the hostility requirement of adverse possession or a prescriptive easement-on the basis that the Pruitts had given them verbal permission to use the roadway. In support of their argument, the Joneses cite this Court's decision in Delancey v. Mallette , 912 So.2d 483, 489 (¶ 17) (Miss. Ct. App. 2005), in which we held that "[w]hen a use of the lands of another for roadway purposes has been open, visible, continuous and unmolested since some point in time anterior to the aged inhabitants of the community, such use will be presumed to have originated adversely." (Quotations omitted). Further, the Joneses argue that "[r]equiring a litigant who is attempting to establish adverse possession or a prescriptive easement to prove that there was no permission for use would be unreasonable. The law typically frowns upon requiring a party to prove a negative averment." Morris , 792 So.2d at 284 (¶ 9).

¶ 15. In response, the Pruitts contend that one of the most basic principles in establishing adverse possession or a prescriptive easement is that the use must be hostile, and that "permissive use by the possessor of the property in question defeats the claim of adverse possession." Ellison v. Meek , 820 So.2d 730, 735 (¶ 15) (Miss. Ct. App. 2002) (citation omitted). In support of their argument, the Pruitts cite the testimony at trial that the Pruitts and Joneses had a friendly relationship up until this dispute. The Pruitts further argue that the fact that Sidney kept the gate locked is consistent with Bocee's testimony at trial that she allowed him to cross into her land as long as he watched out for her property. Additionally, the Pruitts argue that the fact that Sidney never gave Bocee a key is irrelevant, as Sidney, himself, admitted that the Pruitts did not need a key to access the Joneses' property.

¶ 16. This Court held in Cleveland v. Killen , 966 So.2d 848, 851 (¶ 11) (Miss. Ct. App. 2007) :

As a general rule, permissive possession of lands, even if long continued, does not confer title in the person in permissive possession until a positive assertion of a right hostile to the owner has been made known to him. If there was never a request or a grant of permission to use the land, however, the use would not be permissive, but would be adverse. It is a fact question for a chancellor to determine whether a use is prescriptive or permissive.

(Internal citations and quotations omitted). Furthermore, we reiterated:

Use of property by permission does not evolve into a hostile or adverse use until the permission ends. The time period for obtaining adverse possession or a prescriptive easement, when express or implied permission is previously given, does not begin to run until some form of objection to the use is made by the landowner.

Id. at 852 (¶ 15).

¶ 17. Chancellor Harvey-Goree, in her order, found that "all the testimony revealed that the use [of the roadway] was peaceable and permissive." Chancellor Clark made similar findings in his order on the Joneses' motion for reconsideration or for a new trial, and affirmed Chancellor Harvey-Goree's holding with respect to the roadway. We affirm. The record is void of any evidence suggesting that the Joneses' use of the roadway was anything but peaceful. Furthermore, Irozenell even testified at trial that she never sought to bar the Joneses from using the roadway; rather, she merely sought to have them remove their lock from the gate on the roadway. As such, the Joneses have failed to establish that their use of the roadway was hostile, and their claim for adverse possession or a prescriptive easement thereto is unsuccessful.

b. Deer-Camp Structure

¶ 18. Second, the Joneses argue that the chancery court erred in finding that they failed to establish that their deer-camp structure had encroached onto the Pruitts' property for the statutorily required ten years. In support of their argument, the Joneses point to Jeffrey's testimony that the deer-camp structure was built sometime between 1999 and 2001, and Sidney's testimony that the structure was built in 2001. The Joneses also point to the testimony of several witnesses who had worked on or farmed the property in the past, who maintained that the deer camp had existed in that area in some capacity since 1994.

¶ 19. In response, the Pruitts argue that the Joneses provide no exact date for when the deer-camp structure actually began encroaching upon the Pruitts' property, nor did they provide witness testimony as to such. Thus, the Joneses did not prove this statutory requirement by clear and convincing evidence. We agree. The Joneses presented evidence that they began camping in the general vicinity of the future deer-camp structure in 1994, and that the structure itself was built sometime between 1999 and 2001. However, the Joneses presented no evidence as to when the structure was enlarged to the extent that it began actually encroaching upon the Pruitts' property. To the contrary, the Pruitts presented evidence that the structure was not encroaching upon their property as late as 2004. We therefore find no merit to this issue.

2. Whether the chancery court erred in excluding Kelly Blake Mendrop from testifying regarding a survey of the property

¶ 20. The Joneses also argue that the chancery court erred in refusing to allow their expert witness, Kelly Blake Mendrop, to testify at trial regarding a survey that had been previously completed by a surveyor who is now deceased. "[D]ecisions concerning the relevancy of evidence are in the broad discretion of the trial court." Terrain Enterprises, Inc. v. Mockbee , 654 So.2d 1122, 1131 (Miss. 1995). Appellate courts "will not reverse the trial court's decision unless abuse of that discretion is shown." Id. (citation omitted). "Further, for a case to be reversed on the admission or exclusion of evidence, it must result in prejudice and harm or adversely affect a substantial right of a party." Id. (citation omitted).

¶ 21. Both the Joneses and the Pruitts reference King v. Gale , 166 So.3d 589 (Miss. Ct. App. 2015), as controlling authority for this issue. In King , a party seeking a prescriptive easement attempted to elicit testimony from an expert witness regarding a survey prepared by another surveyor. Id. at 592 (¶ 16). The party attempted to introduce the survey as a business record, but the chancellor excluded it as hearsay. Id. at 593 (¶ 17). This Court found that while the chancellor should have admitted the document under the business-records exception to the hearsay rule, any error was harmless since the chancellor was also the finder of fact. Id.

¶ 22. The Joneses argue in their brief that, here, just as in King , any evidentiary problems with the survey had to do with the weight and credibility of the evidence as opposed to the admissibility of it. The Joneses do not explicitly argue in their brief that the survey falls under the business-records exception to the hearsay rule; however, they do cite the portion of King discussing the business-records exception. The Pruitts, in response, point out that counsel for the Joneses did not seek to introduce the survey as a business record at trial; thus, the Joneses cannot argue that the survey was a business record on appeal. The Pruitts further maintain that, even if the chancellor erred in failing to admit Mendrop's testimony with respect to the survey, such an error was harmless because here, as in King , the chancellor was the finder of fact and was qualified to make such a decision. Furthermore, the Pruitts point out that in this matter, the chancellor had an opportunity to visit the site herself.

¶ 23. We refuse to consider whether the survey falls under the business-records exception to the hearsay rule, as the Joneses made no such argument at trial, and make no competent argument of such on appeal. "A trial judge cannot be put in error on a matter not presented to him." Conley v. Wright , 193 So.3d 663, 666 (¶ 12) (Miss. Ct. App. 2016) (citation omitted). Further, "it is the duty of counsel to make more than an assertion; they should state reasons for their propositions, and cite authorities in their support." Minor v. City of Indianola , 909 So.2d 146, 148 (¶ 3) (Miss. Ct. App. 2005) (citation omitted).

¶ 24. However, we note that even if the chancellor erred in excluding Mendrop's testimony with respect to the survey, such an error was harmless. First, the chancellor was the finder of fact and heard all of the testimony presented; she even had an opportunity to visit the property site. Second, Mendrop stated that, in compiling his summary, he only referred to the survey as a basis to "get [his] bearings on where [he] was" while he was personally inspecting the property. The survey was a minimal aspect of Mendrop's report. As such, we find no merit to this issue.

B. Irozenell's Cross-Appeal

¶ 25. Irozenell asserts one issue on cross-appeal: Whether the chancery court, pursuant to the Joneses' motion for reconsideration or a new trial, erred in vacating its award of attorneys' fees. "[T]he issue of attorney[s'] fees falls within the sound discretion of the trial court." Ford Motor Co. v. Tennin , 960 So.2d 379, 395 (¶ 57) (Miss. 2007) (citation omitted). Appellate courts "will not reverse the trial court on the question of attorney[s'] fees unless there is a manifest abuse of discretion in making the allowance." Deer Creek Const. Co. v. Peterson , 412 So.2d 1169, 1173 (Miss. 1982). "With the sole exception of punitive damages cases, in the absence of contractual provision or statutory authority therefor, [the Mississippi Supreme Court] has never approved awarding trial expenses and attorney[s'] fees to the successful litigant." Grisham v. Hinton , 490 So.2d 1201, 1205 (Miss. 1986). "Of course, parties may by contract provide that in event of dispute, the losing party must pay the winner attorney[s'] fees." Id.

¶ 26. "Punitive damages may be awarded as punishment for trespass where the proof shows the trespass was willful, grossly negligent or wanton." R & S Dev., Inc. v. Wilson , 534 So.2d 1008, 1013 (Miss. 1988) (citation omitted). "Furthermore, attorneys['] fees may be included as part of an award of punitive damages." Id. (citation omitted). The "awarding of punitive damages is not a prerequisite for the awarding of attorney[s'] fees." Walker v. Murphree , 722 So.2d 1277, 1283 (¶ 25) (Miss. Ct. App. 1998) (citation omitted). The Mississippi Supreme Court held in Aqua-Culture Technologies, Ltd. v. Holly , 677 So.2d 171, 184 (Miss. 1996), that attorneys' fees may be awarded where "punitive damages would have been justified." Ultimately, "the question of whether punitive damages should be awarded depends largely upon the particular circumstances of the case." Id.

¶ 27. Irozenell asserts that Chancellor Clark erred in setting aside Chancellor Harvey-Goree's award of $12,000 in attorneys' fees. In their counterclaim for ejectment, the Pruitts sought punitive damages for trespass that was "willful, grossly negligent, or wanton." The Pruitts also sought recovery of "[r]easonable attorneys' fees." Chancellor Clark, in granting the Joneses' motion for a reconsideration of the award of attorneys' fees, determined that the Pruitts failed to offer any evidence as to the financial ability of the Joneses to pay, in accordance with the requirements of McKee v. McKee , 418 So.2d 764, 767 (Miss. 1982), so as to determine the reasonableness of the attorneys' fees requested. We cannot find that this was an abuse of discretion.

¶ 28. Accordingly, we affirm the chancellor's judgment denying the Joneses' claim, granting the Pruitts' claim for ejectment, and denying Irozenell's claim for attorneys' fees.

¶ 29. ON DIRECT APPEAL: AFFIRMED. ON CROSS-APPEAL: AFFIRMED.

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

      Bocee did not join Irozenell in the cross-appeal.

      Of note is the fact that Lindrith was given title to the land subject to a trust, of which Jeffrey was made the trustee. At the time of trial, the record owners of the property were Sidney, Jeffrey, and Jeffrey as the trustee for Lindrith. However, as this fact has no bearing on the outcome of the trial, we treat Lindrith as if she owned an equal share of the property along with both of her brothers.

      "Mr. McDonald['s]" full name was not stated at trial; however, in his actual report, Mendrop wrote that the survey was conducted by "T E McDonald."

      While the chancery court dated its judgment as December 31, 2014, the judgment was not electronically filed until January 5, 2015, and was not file-stamped until October 16, 2015.