author: BARNES, J., FOR THE COURT:

text:
    MATHES ELECTRIC SUPPLY CO., INC., Appellant v. CAN'T BE BEAT FENCE COMPANY, LLC and International Fidelity Insurance Company, Appellees
    NO. 2016-CA-01365-COA
    Court of Appeals of Mississippi.
    September 4, 2018 Rehearing Denied January 15, 2019
    ATTORNEY FOR APPELLANT: BILLY C. CAMPBELL JR., Southhaven
    ATTORNEYS FOR APPELLEES: MARK D. HERBERT, MICHAEL MADISON TAYLOR JR., Madison, J. HENRY ROS
    BEFORE GRIFFIS, P.J., BARNES AND GREENLEE, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. On March 10, 2009, Can't Be Beat Fence Company LLC (CBB) entered into a contract with the City of Bay St. Louis, Mississippi, for the construction of the Bay St. Louis Commagere Ballfield (Project). As required by Mississippi Code Annotated section 31-5-51 (Rev. 2008), CBB, as the principal, and International Fidelity Insurance Company (International Fidelity), as the surety, executed a labor-and-material payment bond. CBB entered into a subcontract with Greg Williams Electric Co. Inc. (Williams) for electrical work on the Project.

¶ 2. Mathes Electric Supply Co. Inc. (Mathes) provided Williams with materials for the Project. Although CBB paid Williams for its work, Williams never paid Mathes for the materials; so on April 1, 2010, Mathes submitted a payment-bond claim to CBB and International Fidelity. The insurance company denied the claim. On November 22, 2010, Mathes filed suit against Williams, CBB, and International Fidelity in Hancock County Circuit Court, alleging several causes of action, including bad faith on the part of International Fidelity for failing to remit its claim. Mathes requested compensatory damages of $97,740.34, along with interest, costs of debt collection, and attorney's fees, as well as punitive damages for its bad-faith claim against International Fidelity.

¶ 3. On February 8, 2012, CBB and International Fidelity (the Appellees) filed a motion for summary judgment, asserting Mathes "failed to provide any evidence that it gave proper notice pursuant to [ section] 31-5-51," which provides:

Any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing said payment bond shall have a right of action upon the said payment bond upon giving written notice to said contractor within ninety (90) days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made , stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed. Such notice shall be given in writing by the claimant to the contractor or surety at any place where the contractor or surety maintains an office or conducts business. Such notice may be personally delivered by the claimant to the contractor or surety, or it may be mailed by certified mail, return receipt requested, postage prepaid, to the contractor or surety. No such action may be maintained by any person not having a direct contractual relationship with the contractor-principal, unless the notice required by this section shall have been given.

(Emphasis added). The Appellees argued that because there was "no evidence that any of the materials invoiced by Mathes in the [ninety-day] notice period [ (January 1-April 1, 2010) ] were incorporated into the [P]roject," the bond claim was untimely filed. They also asserted that summary judgment was appropriate for the claim of bad faith as the lack of notice was "a justifiable reason to deny Mathes's payment[-]bond claim."

¶ 4. Mathes responded, attaching two affidavits from two of Williams' employees, Sid Carroll and Charles Tow. Attesting that he was "competent to testify" and was making "th[e] affidavit from personal knowledge," Carroll, an estimator for Williams, averred that he had "performed work on the Commagere Ballfield Project," and material referenced in Mathes's Invoice 19640-00, dated January 12, 2010, "was incorporated into the Commagere Ballfield Project and/or was used and/or consumed in the course of the construction of the Commagere Ballfield Project." The invoice was attached to Carroll's affidavit. Tow, the Project supervisor for Williams, also testified that materials from Mathes had been incorporated in the Project, but the invoices referenced in his affidavit were all dated prior to January 1, 2010.

¶ 5. On April 19, 2012, the Appellees filed a rebuttal and a motion to strike Carroll's affidavit, contending the affidavit was "problematic and self-serving because he was not actually at the [P]roject at the time the materials would have been used in the [P]roject." To support its motion, the Appellees submitted "daily logs" dated January 5, 2010, to January 13, 2010, that Williams had provided to CBB. The only employees listed as working onsite at the Project were Tow, Vern Richardson, and Randy Breeden-Carroll was not listed. Mathes filed a motion to stay consideration of the Appellees' motion for summary judgment, as to the bad-faith claim, pending completion of discovery.

¶ 6. A hearing on the motion for summary judgment was held April 19, 2012, after which the circuit court asked the parties to submit proposed findings of undisputed facts and conclusions of law. Mathes continued to conduct discovery, deposing Tow and Goff. Tow testified unequivocally that materials listed in invoices dated after January 1, 2010, were used in the Project. Mathes filed Tow's March 31, 2014 deposition with the circuit court on January 6, 2016. The Appellees filed a motion to strike the additional documents filed by Mathes, particularly Tow's deposition.

¶ 7. On April 22, 2016, four years after the hearing, the circuit court granted the Appellees' motion for summary judgment, finding Mathes did not timely submit its payment-bond claim pursuant to section 31-5-51. The circuit court reasoned that "Carroll's affidavit may not be considered, because, [he] was not actually at the Commagere [P]roject at the time the materials would have been used in construction," citing the daily logs submitted by the Appellees. Therefore, the circuit court concluded that the evidence showed the last delivery to the Project was November 18, 2009; so the "notice [was] improper, and no claim against the bond [could] proceed." With regard to the bad-faith claim, the court held: "Since the lack of evidence as to the incorporation of materials creates a reasonable doubt as to amounts owed under the bond, International [Fidelity] could not be liable for bad faith denial." The court did not address Tow's affidavit or subsequent deposition; it merely commented that the daily logs reflected Tow was present on the site "from January 5, 2010, to January 13, 2010."

¶ 8. Mathes filed a motion to alter or amend the judgment, noting the court's failure to consider Tow's testimony. After a hearing on August 18, 2016, the circuit court denied the motion, finding there was "no intervening change in the law" or "any new evidence that was previously not available." The court entered a final judgment pursuant to Mississippi Rule of Civil Procedure 54(b), dismissing Mathes's claims with prejudice.

¶ 9. On appeal, we find Carroll's affidavit and the daily logs provided a genuine issue of material fact as to his personal knowledge of whether materials supplied by Mathes were used on the Project within the ninety days prior to the filing of the payment-bond claim. We reverse the circuit court's judgment and remand for further proceedings consistent with this opinion.

DISCUSSION

¶ 10. Mathes claims that the circuit court erred in granting summary judgment because its April 1, 2010 payment-bond claim was timely provided within ninety (90) days from the date on which Mathes last supplied materials for the Project. A de novo standard of review is employed when reviewing a circuit court's grant of summary judgment. Blanchard v. Mize , 186 So.3d 403, 405 (¶ 11) (Miss. Ct. App. 2016). Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." M.R.C.P. 56(c). All evidence before the court must be examined "in the light most favorable to the nonmoving party." Blanchard , 186 So.3d at 405 (¶ 11). "The party opposing the motion may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in Rule 56, must set forth specific facts showing that there is a genuine issue for trial." Id. (citations and internal quotation marks omitted). "Any opposing affidavits must: (1) be sworn; (2) be made upon personal knowledge; and (3) show that the party providing the factual evidence is competent to testify." Hans v. Mem 'l Hosp. at Gulfport , 40 So.3d 1270, 1277 (¶ 16) (Miss. Ct. App. 2010).

¶ 11. Mathes contends that Carroll's affidavit testimony was "sufficient (by itself) to defeat [the Appellees'] motion for summary judgment as to the timeliness of [its] payment[-]bond claim." We agree. Carroll, a Williams employee, testified that he made his statements based on "personal knowledge," but the trial judge relied on Williams's internal daily work logs submitted by the Appellees in determining that Carroll was not present at the Project site during that time period. "To survive a motion for summary judgment, the party opposing the motion need only present a material issue of fact." Doe v. Stegall , 757 So.2d 201, 206 (¶ 14) (Miss. 2000). There was also deposition testimony by a Mathes employee attached to the Appellees' motion for summary judgment that indicated Carroll was familiar with the materials used at the Project site:

A. And the reason I shipped material to [Williams's] shop, because I was told that there wasn't a very secured area at the job. For, like, small stuff like this that can get lost, usually I'll ship that to their shop.
Q. Okay. Who told you that there wasn't a secure place at the job?
A. Sid Carroll.
Q. Who is Sid Carroll?
A. Sid Carroll was an estimator for Greg Williams Electric.
Q. Okay. Do you know if he was ever at the [P]roject?
A. I think he went to the [P]roject. I didn't go with him. I don't personally know that he did. I think that he did.

Viewing the evidence in the light most favorable to the nonmovant, Mathes, we find the discrepancy among Carroll's affidavit, the daily logs, and the Mathes employee's testimony, created a genuine issue of material fact as to whether Carroll had personal knowledge that material supplied by Mathes to Williams was incorporated into the Project after January 1, 2010.

¶ 12. Moreover, as Mathes argues, the daily work logs "were unauthenticated, and the record is void of any sworn testimony that such daily logs identify the only persons who were on the [P]roject site or who may have personal knowledge about the materials incorporated in the [P]roject."See M.R.E. 801 and 901. Rule 56(e) does provide that the court "may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits," but nowhere does Rule 56 state that affidavits may be opposed by documents submitted without supporting affidavits or other sworn testimony. Therefore, we find the Appellees failed to show they were entitled to a judgment as a matter of law.

¶ 13. Additionally, Mathes claims that the circuit court should have considered Tow's 2014 deposition testimony, which stated that Mathes supplied materials to the Project "as late as January 20, 2010." The Appellees' response is that Tow's deposition was not submitted until 2016, more than three years after the summary-judgment hearing; so the court was correct not to consider that evidence in its ruling. Although this argument is rendered moot by our finding on the first issue, we acknowledge that Rule 56(c) requires an adverse party to serve opposing affidavits "prior to the day of the hearing." Furthermore, in Lawrence v. Lawrence , 956 So.2d 251, 257 (¶ 15) (Miss. Ct. App. 2006), our Court held:

It is certainly contrary to Rule 56(c) for the chancellor to consider documents that are not "on file" prior to the hearing on the motion. M.R.C.P. 6(b). See also Richardson v. APAC-Miss. Inc. , 631 So.2d 143, 146 (Miss. 1994). We conclude that Rule 56(c) requires that all matters upon which a party or the court may rely must be filed with the clerk and served on the other party prior to the hearing .

(Emphasis added). However, this is a particularly unusual situation since the circuit court made no ruling on the summary-judgment motion until four years after the hearing, and the parties continued discovery during that period. Rule 56(c) requires that "[t]he judgment sought shall be rendered forthwith" if the summary-judgment materials show the moving party is entitled to such judgment. The term "forthwith" is defined as "[i]mmediately; without delay." Black's Law Dictionary 725 (9th ed. 2009). Here, due to the extremely long delay between the hearing and the circuit court's ruling, additional discovery was conducted and submitted, which further showed the Appellees' lack of entitlement to summary judgment. Under these circumstances, we further find that the court erred in failing to take into consideration the deposition testimony of Tow, Williams's Project supervisor, filed months prior to its ruling.

¶ 14. Accordingly, we reverse the circuit court's grant of summary judgment and remand for further proceedings on Mathes's claims.

¶ 15. REVERSED AND REMANDED.

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

      CBB filed a third-party complaint against Larry Goff, a registered agent for Williams. However, Williams ceased operations in March 2011. Larry Goff, its agent and former secretary/treasurer, testified in a deposition that all records for the company had been destroyed. But he acknowledged that Williams had been paid by CBB for its payment applications, and he was unaware of any payments to Mathes.


source: Caselaw Access Project

license: Public Domain

text:
    Clayton Paul BATEMAN a/k/a Clayton P. Bateman a/k/a Clayton Bateman, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-01353-COA
    Court of Appeals of Mississippi.
    September 25, 2018 Rehearing Denied January 29, 2019
    ATTORNEY FOR APPELLANT: CLAYTON PAUL BATEMAN (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH, JACKSON
    BEFORE GRIFFIS, P.J., BARNES AND GREENLEE, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. Clayton Bateman, appearing pro se, appeals the Harrison County Circuit Court's dismissal of his "Motion for Relief from Judgment" for lack of jurisdiction. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In January 2010, Bateman was indicted for three counts of sexual battery and two counts of lustful touching of a child. The victims were his two daughters, aged eight and nine. In February 2011, Bateman, appearing pro se, filed a "Petition for Habeas Corpus in PreConviction," claiming he was illegally imprisoned and requesting "immediate release." The petition was filed after his indictment but approximately one year before his trial. Bateman argued that the circuit court, or any court within the State, lacked jurisdiction over his case because the boundaries of the State of Mississippi had allegedly been dissolved by constitutional amendment in 1990, and the court's jurisdiction is dependent upon these constitutional boundaries. He claimed the State took his liberty by "fraud." Additionally, Bateman alleged that his indictment was void from lack of jurisdiction, and the court's officers, including the circuit-court judge, were illegitimate "agents of the state" because they had not provided him with their oaths of office. Finally, he requested copies of transcripts of his proceedings, appointment of counsel, and an evidentiary hearing on his petition.

¶ 3. On February 7, 2012, the day before trial commenced, a hearing was held on Bateman's habeas-corpus petition, as well as other pro-se pretrial motions he had filed. The circuit court denied his petition and motions from the bench. Bateman proceeded to trial, where a jury convicted him of two counts of sexual battery and two counts of touching of a child for lustful purposes. Bateman was sentenced to thirty years for each count of sexual battery, to run concurrently. He was sentenced to fifteen years for each count of touching of a child for lustful purposes, to run consecutively to each other, and concurrently with the two counts of sexual battery, all in the custody of the Mississippi Department of Corrections. Bateman appealed, and the Mississippi Supreme Court affirmed his convictions and sentences in Bateman v. State , 125 So.3d 616 (Miss. 2013).

¶ 4. On February 16, 2016, approximately four years after his conviction, Bateman filed a "Motion for Relief from Judgment" under Mississippi Rule of Civil Procedure 60(b)(4) and (6). In the motion, Bateman reiterated and elaborated the arguments of his habeas-corpus petition, claiming that the judgment (presumably of conviction)

was void and the State committed a fraud upon the court because the court lacked jurisdiction. The circuit court treated the motion as one for post-conviction relief (PCR) under the Mississippi Uniform Post-Conviction Collateral Relief Act (UPCCRA) of Mississippi Code Annotated section 99-39-1 through -29 (Rev. 2015). The circuit court ruled that it lacked jurisdiction to hear the motion because, under post-conviction relief procedures, Bateman failed to request permission from the Mississippi Supreme Court to file the motion under section 99-39-7. Bateman timely appealed.

STANDARD OF REVIEW

¶ 5. This Court reviews the circuit court's denial or dismissal of a PCR motion for abuse of discretion. The circuit court's findings will only be disturbed if they are clearly erroneous. Doss v. State , 19 So.3d 690, 694 (¶ 5) (Miss. 2009). Questions of law are reviewed de novo. Id.

ANALYSIS

¶ 6. Bateman makes two arguments on appeal-one procedural and one substantive. Procedurally, he argues that the circuit court misconstrued his self-styled "Motion for Relief from Judgment" as a PCR motion. Bateman claims the motion was in response to the denial of his habeas-corpus petition four years earlier and should be treated as such; it was not a post-conviction collateral challenge. Substantively, he claims that the State of Mississippi lacked jurisdiction over his entire criminal proceeding because the State has no boundaries due to the 1990 Mississippi constitutional amendment of Section 3 of Article 2.

¶ 7. We find the circuit court did not err in considering Bateman's motion as one for post-conviction relief. Bateman had already been convicted once he filed the motion, and the circuit court properly dismissed the motion for lack of jurisdiction.

¶ 8. Proper post-conviction procedure mandates that where a criminal defendant's case is affirmed on direct appeal, the defendant must obtain permission from the Mississippi Supreme Court to seek post-conviction relief from the circuit court. Miss. Code Ann. § 99-39-7 (Rev. 2007). "This procedure is not merely advisory, but jurisdictional." Doss v. State , 757 So.2d 1016, 1017 (¶ 6) (Miss. App. 2000). Here, the circuit court considered Bateman's filing as a PCR motion. Bateman's conviction and sentence had been previously affirmed on direct appeal by the supreme court; therefore, he was required to obtain permission from the supreme court to seek post-conviction relief, but he failed to do so. Accordingly, the circuit court lacked jurisdiction to consider the merits of Bateman's motion. See Cortez v. State , 9 So.3d 445, 446 (¶ 6) (Miss. Ct. App. 2009).

¶ 9. In an apparent attempt to avoid the requirement of obtaining permission from the supreme court to file a PCR, Bateman contends that his "Motion for Relief from Judgment" is not a PCR motion, as the circuit court considered it, but a response to the circuit court's ruling on his habeas-corpus petition. Therefore, he claims the circuit court should not have dismissed his motion. We disagree.

¶ 10. In Mississippi, the writ of habeas corpus is "narrow in its scope and applicability" unlike the "boundless" federal habeas corpus. Nelson v. Tullos , 323 So.2d 539, 542 (Miss. 1975). A writ of habeas corpus tests "the legality of a petitioner's detention prior to conviction. " Id. (emphasis added). "The function of the habeas corpus court in Mississippi in criminal cases is to release a prisoner who is being unlawfully held or to grant [the prisoner] a bail bond which [the prisoner] can make." Smith v. Banks , 134 So.3d 715, 719 (¶ 9) (Miss. 2014) (quoting Keller v. Romero , 303 So.2d 481, 483 (Miss. 1974) ). After a defendant has been indicted, the habeas-corpus court has no power to discharge the defendant, but the court is limited to granting bail. Id. (citing Street v. State , 43 Miss. 1, 30 (1870) ). Further, a habeas-corpus writ cannot "be used as a collateral method to prevent a trial on an indictment." Id.

¶ 11. Prior to the 1984 enactment of the UPCCRA, habeas-corpus procedure for both pre-and post-conviction matters was governed by Chapter 43 of Title 11 of the Mississippi Code Annotated of 1972. The UPCCRA "repealed post-conviction use of habeas corpus and implemented a motion framework specifically for post-conviction collateral review of challenges to convictions or sentences, as opposed to pre-conviction challenges." Edmond v. Miss. Dep't of Corr. , 783 So.2d 675, 677 (¶ 8) (Miss. 2001) (citing Miss. Code Ann. § 99-39-3 (Rev. 2015) ) (emphasis added). Mississippi appellate courts have stated the UPCCRA, "in the pure post-conviction collateral relief sense, is arguably 'post-conviction habeas corpus renamed.' " Putnam v. Epps , 963 So.2d 1232, 1234 (¶ 5) (Miss. Ct. App. 2007) (citing Walker v. State , 555 So.2d 738, 740-41 (Miss. 1990) ). Now, if inmates request post-conviction relief, the UPCCRA must be followed. See Miss. Code Ann. § 99-39-3 (explaining the purpose of UPCCRA).

¶ 12. Bateman claims he may utilize a writ of habeas corpus to seek "immediate release" post-conviction because the circuit court lacked jurisdiction over his case. In support, he quotes the following passage in Allred v. State , 187 So.2d 28, 30 (1966) : "In this state the writ of habeas corpus has a limited function: to inquire into the competency and jurisdiction of the tribunal and to determine whether or not it had jurisdiction to enter the judgment on conviction." (Quoting Smith v. State , 155 So.2d 494, 495 (1963) ) (emphasis added). These cases were, however, decided prior to the enactment of the UPCCRA. "[R]elief formerly accorded by such writs may be obtained by an appropriate motion under [the UPCCRA]." Jeanty v. State , 148 So.3d 1056, 1058 (¶ 6) n. 4 (Miss. Ct. App. 2014).

¶ 13. Next, Bateman attempts to evade the fact his motion was filed post-conviction by pointing out that it was filed under Rules 60(b)(4) and (6) of the Mississippi Rules of Civil Procedure, and claiming it relates back to his "preconviction" habeas-corpus petition. These portions of Rule 60 allow the trial court to provide relief from judgment when the judgment is void or "any other reason justifying relief from the judgment," respectively. However, neither of these conditions apply to the case before us. Moreover, a motion under Rule 60(b)(4) or (6) must be made in a "reasonable time." Four years after the ruling is not "reasonable."

¶ 14. Bateman also complains that the circuit court never entered an order denying his writ of habeas-corpus petition; therefore, he could not "appeal" in a timely manner, and his due-process rights were violated. He also claims he requested the cause's "final disposition" from the circuit-court clerk but received no response. We find these complaints without merit. Bateman was present and represented himself at the hearing, and heard first-hand the circuit-court judge's "final disposition" of his petition. The next day his trial began. Bateman was convicted and that conviction was upheld on appeal. Any relief must be obtained through the post-conviction procedures outlined in the UPCCRA. Bateman did not obtain permission from the supreme court; therefore, neither the circuit court nor this Court has jurisdiction. Should he wish to continue his novel argument, Bateman must obtain permission from the supreme court.

¶ 15. The circuit court did not err in dismissing Bateman's PCR motion for lacking jurisdiction.

¶ 16. AFFIRMED.

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

      Bateman is referring to Senate Concurrent Resolution Number 520, which proposed to repeal Section 3 of Article 2 of the Mississippi Constitution of 1890, which identified the boundaries of the State. The resolution was adopted by both the Mississippi Senate and House of Representatives in February and March 1990, respectively. The electorate ratified the amendment in November 1990, and the Secretary of State proclaimed Section 3 repealed in December 1990. See Laws, 1990, Ch. 692, eff. December 19, 1990. In 2013, the Legislature amended section 3-3-1 of the Mississippi Code to exchange a reference to Section 3, Article 2 with a reference to "the boundaries described in the act of Congress of March 1, 1817, together with all territory ceded to the State of Mississippi by later acts of Congress or by compacts or agreements with other states, as such territory and boundaries may have been or may be modified by the United States Supreme Court ...." See Chapter 23, 14th Cong., 2 Stat. 348 (1817) (enacted).

      Apparently Bateman requested the oaths to question the validity of the judicial officers and judges.

      Bateman initially complained that he was not represented by counsel at his pretrial motions hearing, but then he modified his argument to state his counsel "refused to assist" him and "did nothing"; however, contrary to Bateman's assertions, his appointed counsel was present and available, but Bateman insisted on arguing the motions himself.

      Further, the circuit court found that even if it had jurisdiction, Bateman's arguments were without merit.

      The UPCCRA specifically repealed the statutory writ of error coram nobis and abolished the common law writs relating to post-conviction collateral relief, including post-conviction habeas corpus. The UPCCRA explains that "relief formerly accorded by such writs may be obtained by an appropriate motion under this article." However, "[t]he enactment of this article does not affect any pre-conviction remedies." Miss. Code Ann. § 99-39-3 (Rev. 2015). Portions of Chapter 43, Title 11, were amended to exclude post-conviction claims from that chapter. See Miss. Code Ann. § 11-43-3 (Rev. 2012) (excepting post-conviction relief from chapter) and -9 (deleting reference to claims by inmates).


author: GREENLEE, J., FOR THE COURT:

text:
    Kelton K. HATHORNE a/k/a Kelton K. Hathorne Sr. a/k/a Kelton Keshawn Hathorne a/k/a Kelton Hathorne, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00811-COA
    Court of Appeals of Mississippi.
    October 23, 2018 Rehearing Denied February 26, 2019
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, Jackson
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER, Jackson
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. Kelton K. Hathorne was convicted of possession of a controlled substance (ethylone) in excess of thirty grams. Pursuant to Mississippi Code Annotated section 41-29-139(f)(2)(C) (Rev. 2013), the Forrest County Circuit Court sentenced Hathorne to thirty years in the custody of the Mississippi Department of Corrections, with ten years suspended, twenty years to serve, and five years of post-release supervision. Hathorne filed posttrial motions, which the trial court denied. Hathorne now appeals, asserting that (1) the indictment was defective, and (2) his conviction was legally insufficient or against the overwhelming weight of the evidence.

FACTS

¶ 2. On November 7, 2015, Officer Jason Jarvis witnessed a black Dodge Charger run a red light at an intersection in Hattiesburg, Mississippi. Officer Jarvis initiated a traffic stop, and the driver stopped the car in a motel parking lot. As Officer Jarvis approached the car, he noticed two occupants. But, the driver then sped the car away, ultimately stopping behind the motel. Officer Jarvis followed in his patrol car and witnessed a man exit the driver's side of the car. Officer Jarvis testified that he followed this man, later identified as Hathorne, through the parking lot and up one flight of stairs. Hathorne then jumped over the railing and landed in a flower bed. Officer Jarvis saw another officer, Brad Nix, apprehend Hathorne. While assisting Officer Nix move Hathorne to the patrol car, Officer Jarvis saw the passenger in the car move to the driver's seat and begin to drive the car in reverse. After quickly searching Hathorne for a weapon, Officer Jarvis placed Hathorne in Officer Nix's patrol car and then apprehended the other occupant. The other occupant rode to the police station in Officer Jarvis's patrol car.

¶ 3. At the police station, Officer Jarvis searched Hathorne and found $890 in his pocket. Officer Nix, who had transported Hathorne to the police station, checked the back seat after removing Hathorne and found a Crown Royal bag containing marijuana, Xanax, two counterfeit twenty-dollar bills, and a white, rock-like substance later identified as ethylone. The bag had been stuffed under the back seat. Officer Nix testified that the back seat of the patrol car could be lifted up in one piece and that prior occupants handcuffed in the same manner as Hathorne have stuffed drugs under the seat while being transported. Officer Nix also stated that he routinely checks this particular area of his patrol car as a result. He further testified that no one else had been in the back seat of his patrol car that day.

¶ 4. Officer Jarvis testified that he conducted a field test on the white substance, and it tested positive for methamphetamine.

¶ 5. Grady Downey, a forensic scientist who works as a drug analyst for the state, tested the drug and identified it as 31.959 grams of ethylone, commonly known as bath salts. Downey stated that ethylone is a "psychotropic stimulant drug" in the class of amphetamines and cathinones and sometimes mistaken for methamphetamine in field tests.

DISCUSSION

I. DEFECTIVE INDICTMENT

¶ 6. Hathorne first argues that his indictment was defective. Specifically, Hathorne claims that the indictment did not sufficiently charge him with drug trafficking, only simple possession. The indictment listed the charging statute as "Trafficking in Controlled Substance, Mississippi Code Annotated section 41-29-139(f)(2)(C)." The body of the indictment charged Hathorne with "knowingly, willfully, unlawfully, and feloniously possess[ing] thirty (30) grams or more of Ethylone, a Schedule I Controlled Substance, contrary to the form of the statute in such cases made and provided ...."

¶ 7. Section 41-29-139(f) provides:

(f) Trafficking . (1) Any person trafficking in controlled substances shall be guilty of a felony and, upon conviction, shall be imprisoned for a term of not less than ten (10) years nor more than forty (40) years and shall be fined not less than Five Thousand Dollars ($5,000.00) nor more than One Million Dollars ($1,000,000.00). The ten-year mandatory sentence shall not be reduced or suspended. The person shall not be eligible for probation or parole, the provisions of Sections 41-29-149, 47-5-139, 47-7-3 and 47-7-33, to the contrary notwithstanding.
(2) "Trafficking in controlled substances" as used herein means:
....
(C) A violation of subsection (c) of this section involving thirty (30) or more grams or forty (40) or more dosage units of a Schedule I or II controlled substance except marijuana and synthetic cannabinoids ....

¶ 8. Section 41-29-139(f)(2)(C) references section 41-29-139(c), which states in part:

(c) Simple possession . It is unlawful for any person knowingly or intentionally to possess any controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this article.

¶ 9. Hathorne argues that the State was required to prove that he violated section 41-29-139(a), which prohibits the "transfer and possession with intent to transfer" controlled substances. But the statutory language relied upon by the State requires the State to prove that (1) Hathorne possessed the controlled substance as set forth in section 41-29-139(c), and (2) the weight of the drugs was over thirty grams to warrant the greater punishment under section 41-29-139(f)(1). "[T]he Mississippi Supreme Court [has] held that an indictment is generally sufficient if it tracks the language of the relevant criminal statute." Ludwig v. State , 147 So.3d 360, 363 (¶ 9) (Miss. Ct. App. 2014). The indictment reflects the required language; thus, this issue is without merit.

¶ 10. In his reply brief, Hathorne also argues that both section 41-29-139(f)(2)(A) and section 41-29-139(f)(2)(C) subject an offender to the same punishment options regardless of whether there is an intent to transfer under subsection (2)(A) or simple possession under subsection (2)(C). The Legislature, however, has defined trafficking to include the possession of specific amounts of controlled substances, in this instance ethylone. It is our Legislature's prerogative "to define crimes and set out punishment for offenders, and this prerogative is given great latitude." Faraga v. State , 514 So.2d 295, 302 (Miss. 1987).

II. SUFFICIENCY AND WEIGHT OF THE EVIDENCE

¶ 11. In the alternative, Hathorne argues that the verdict was against the sufficiency and overwhelming weight of the evidence.

Hathorne also contends that the evidence was insufficient to prove simple possession.

A. Sufficiency of the Evidence

¶ 12. When reviewing a challenge to the legal sufficiency of the evidence:

[T]he 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. Where the facts and inferences point in favor of the defendant on any element of the offense with sufficient force that reasonable jurors could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is to reverse and render. However, if reasonable fair-minded jurors 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.

Topps v. State , 227 So.3d 1177, 1180 (¶ 5) (Miss. Ct. App. 2017) (citations and internal quotation marks omitted).

1. Trafficking

¶ 13. Hathorne argues that no evidence was produced to show possession with intent to transfer. But as previously stated, the State was required to prove that (1) Hathorne possessed the controlled substance as set forth in section 41-29-139(c), and (2) the weight of the drugs was over thirty grams to warrant the greater punishment under section 41-29-139(f)(1). The State was operating under the theory that Hathorne had constructive possession of the controlled substance. For that, "there must be sufficient facts to warrant a finding that [the] defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it." Curry v. State , 249 So.2d 414, 416 (Miss. 1971). "Constructive possession may be shown by establishing that the drug[s] involved [were] subject to his dominion or control." Id. "Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances." Gavin v. State , 785 So.2d 1088, 1093 (¶ 16) (Miss. Ct. App. 2001). In Gavin , we stated the following:

Being in a closed area such as a vehicle or a room with contraband does not by itself permit the inference of dominion and control. If the accused is the owner of the premises, or if he is the exclusive user for some extended period of time, or if there are additional incriminating circumstances, then the inferences might be permissible.

Id. at 1094 (¶ 21).

¶ 14. Officer Nix testified that he found the bag of drugs under the back seat after transporting Hathorne to the station. He further testified that no one else had ridden in his patrol car that day and that he routinely checks his patrol car because prior occupants had attempted to hide drugs under the back seat. This Court has upheld a possession-of-a-controlled-substance conviction in a factually similar case. See Jefferson v. State , 964 So.2d 615, 619 (¶ 13) (Miss. Ct. App. 2007). The State also proved that the drug in question was a controlled substance and the amount was over thirty grams. From the evidence presented, reasonable jurors could have concluded that Hathorne was guilty of trafficking. This issue lacks merit.

2. Simple Possession

¶ 15. Hathorne contends that the indictment charged him with simple possession; thus, the jury "without deliberating any intent to transfer element, really only found Hathorne guilty of the lesser included offense of simple possession." Hathorne argues that the evidence was not sufficient to convict him of simple possession. Because we have already found that the indictment was not defective and that the evidence was sufficient to convict Hathorne of trafficking, we find no merit to this issue.

B. Weight of the Evidence

¶ 16. When reviewing a challenge to the weight of the evidence, this Court will only disturb the verdict if "it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Roberts v. State , 229 So.3d 1060, 1068 (¶ 29) (Miss. Ct. App. 2017). We review the evidence in the light most favorable to the verdict. Id.

1. Trafficking

¶ 17. When we take the evidence in the light most favorable to the verdict, we find the weight of the evidence supports the guilty verdict. Testimony revealed that Officer Nix's patrol car was clean of any drugs when Hathorne was arrested, and there was no evidence to the contrary. Immediately after he was removed from the car, Officer Nix discovered the bag of drugs under the seat where Hathorne had been sitting. Based on the evidence, we cannot say the verdict creates an unconscionable injustice and requires reversal. This issue is without merit.

2. Simple Possession

¶ 18. Because we have found the weight of the evidence supports the guilty verdict, this issue is without merit.

¶ 19. AFFIRMED.

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


author: GREENLEE, J., FOR THE COURT: CARLTON, J., CONCURRING IN PART AND DISSENTING IN PART:

text:
    Cameron Dwayne MAY a/k/a Cameron D. May a/k/a Cameron May, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00884-COA
    Court of Appeals of Mississippi.
    December 11, 2018 Rehearing Denied March 12, 2019
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, JACKSON
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN
    BEFORE IRVING, P.J., GREENLEE AND TINDELL, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. Cameron May challenges his convictions for two counts of aggravated assault (Counts I and II), one count of sexual battery (Count III), and one count of kidnapping (Count IV). The Jackson County Circuit Court sentenced him to serve twenty years for Count I, twenty years for Count II, thirty years for Count III, and thirty years for Count IV. His sentences for Counts II, III, and IV are to run concurrently with each other, but consecutively to Count I, all in the custody of the Mississippi Department of Corrections. May appeals.

¶ 2. On appeal, he alleges that: (1) double jeopardy bars his two aggravated-assault convictions; (2) evidence is insufficient to sustain his sexual-battery conviction; (3) evidence is insufficient to sustain his kidnapping conviction; and (4) the circuit court erred when it denied his motion to suppress his statement to the police. Finding error, we affirm in part and reverse and render in part.

FACTS AND PROCEDURAL HISTORY

¶ 3. May scoured Ocean Springs for a victim. In the hapless Barbara Jalanivich, he found one. After feigning interest in a rental at the apartment complex where Jalanivich worked, May closed Jalanivich's office door, blocked her exit, and then beat and strangled her until she lost consciousness. When she came to, her undergarments and shoes were removed, and the door to her office was locked. She immediately sought help from complex residents; they called the police and Jalanivich's relatives.

¶ 4. Police questioned Jalanivich, and she told them and her father that she may have been raped. They then took her to the hospital. There, nurses documented her injuries and performed a sexual-assault examination, documenting Jalanivich's vaginal redness and deep bruising inside her vagina.

¶ 5. May fled to Florida, where police officers arrested him. During questioning, May admitted to having battered and strangled Jalanivich, but he denied having sexual intercourse with her. When he invoked his right to counsel, the police officers stopped the interview.

¶ 6. In March 2017, a jury convicted May for two counts for aggravated assault (Counts I and II), one count for sexual battery (Count III), and one count for kidnapping (Count IV). The Jackson County Circuit Court then sentenced him to serve twenty years for Count I, twenty years for Count II, thirty years for Count III, and thirty years for Count IV. Counts II, III, and IV were to run concurrently with each other, but consecutively to Count I, all in the custody of the Mississippi Department of Corrections.

¶ 7. May filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which the circuit court denied. He appeals, asserting that: (1) double jeopardy bars his two aggravated-assault convictions; (2) evidence is insufficient to sustain his sexual-battery conviction; (3) evidence is insufficient to sustain his kidnapping conviction; and (4) the circuit court erred when it denied his motion to suppress his statement to the police.

DISCUSSION

I. Does double jeopardy bar May's two aggravated-assault convictions?

¶ 8. "We apply a de novo standard of review to claims of double jeopardy." Kelly v. State , 80 So.3d 802, 804 (¶ 8) (Miss. 2012) (quoting Boyd v. State , 977 So.2d 329, 334 (¶ 14) (Miss. 2008) ).

¶ 9. May asserts that his right under the Fifth Amendment not to be twice put in jeopardy for the same offense is violated by the two aggravated-assault convictions. He first raised this issue before trial and continues to raise it on appeal.

¶ 10. The Double Jeopardy Clause of the Fifth Amendment provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb ...." U.S. Const. amend. V ; see also Miss. Const. art. 3, § 22 ("No person's life or liberty shall be twice placed in jeopardy for the same offense; but there must be an actual acquittal or conviction on the merits to bar another prosecution.").

¶ 11. The State asks us to look to the Blockburger (or "same-elements") test in determining May's double-jeopardy claim. In Blockburger , the United States Supreme Court held that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States , 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The State argues that May's two convictions do not stem from the same act. Rather, the State purports they stem from two different ones: (1) May beating Jalanivich; and (2) May strangling Jalanivich.

¶ 12. The jury instructions mirror the stated assertion. The instruction for Count I asked the jury to find May guilty if he "willfully, unlawfully and feloniously cause[d] serious bodily injury, to-wit: causing a mandible fracture, pterygoid fracture and biltateral intraparenchymal subarchnoid hemorrhages" to "Jalanivich by striking her face and head ...." The instruction for Count II asked the jury to find May guilty if he "willfully, unlawfully and feloniously cause[d] bodily injury, to-wit: causing unconsciousness and injury to the neck" to "Jalanivich by a means likely to produce death or serious bodily harm ...."

¶ 13. May advocates that we, instead, embrace the "unit of prosecution" concept detailed in Sanabria v. United States , 437 U.S. 54, 69, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978), despite the fact-and May acknowledges this-that "[t]here is no Mississippi case directly on point applying the unit of prosecution analysis to our aggravated assault statute."

¶ 14. Our state supreme court has noted that "an overt act toward the commission of one crime can constitute a separate independent crime." Greenwood v. State , 744 So.2d 767, 771 (¶ 20) (Miss. 1999). However, May has two convictions under one statute- Mississippi Code Annotated section 97-3-7(2)(a) (Rev. 2014)-arising out of the same occurrence: his attack on Jalanivich. The State broke the assault down into two phases, the beating and the strangling, charging each under the same statute. But May's striking and strangling of Jalanivich was during the same assault. "Whether a transaction results in the commission of one or more offenses is determined by whether separate and distinct acts made punishable by law have been committed." United States v. Prestenbach , 230 F.3d 780, 783 (5th Cir. 2000).

¶ 15. Aggravated assault is defined in section 97-3-7(2)(a) of the Mississippi Code Annotated :

A person is guilty of aggravated assault if he (i) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; (ii) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm ....

Miss. Code Ann. § 97-3-7(2)(a).

¶ 16. "It is bedrock law in Mississippi that criminal statutes are to be strictly construed against the State and liberally in favor of the accused." Coleman v. State , 947 So.2d 878, 881 (¶ 10) (Miss. 2006). The State has attempted to divide the attack, the aggravated assault, into more than one incident. The evidence shows there was one attack to harm her. To utilize the State's logic, a third crime would have been committed if May kicked Jalanivich during the attack.

¶ 17. Notably, some jurisdictions have approached this area of law with a definite test. Kansas has a differentiated approach to the issue:

In analyzing a double jeopardy issue, the overarching inquiry is whether the convictions are for the same offense. There are two components to this inquiry, both of which must be met for there to be a double jeopardy violation: (1) Do the convictions arise from the same conduct? and (2) By statutory definition are there two offenses or only one? Under the first component, if the conduct is discrete, i.e., committed separately and severally, the convictions do not arise from the same offense and there is no double jeopardy violation. If the charges arise from the same act or transaction, the conduct is unitary and the second component must be analyzed to see if the convictions arise from the same offense. Under the second component, it must be determined whether the convictions arise from a single statute or from multiple statutes. If the double jeopardy issue arises from convictions for multiple violations of a single statute the unit of prosecution test is applied. If the double jeopardy issue arises from multiple convictions of different statutes, in other words it is a multiple description issue, the same-elements test is applied.

State v. Schoonover , 281 Kan. 453, 133 P.3d 48, 55 (2006). Here, the Kansas Supreme Court helpfully adopted the "unit of prosecution" test, explaining it is "not necessarily dependent upon whether there is a single physical action ...; [r]ather, the key is the nature of the conduct proscribed." Id. at 65.

¶ 18. We note that such certainty is lacking in Mississippi, but in the present case, evidence shows that May committed one attack to harm Jalanivich. His actions were not each a discrete and separate act but a part of May's single attack on Jalanivich, i.e., one aggravated assault. Even though the statute for aggravated assault has two methods of proof for the one occurrence, May was not charged under a separate statute with differing elements of proof. Therefore, the same-elements test is inapplicable. Because statutes are to be strictly construed against the State, the two methods of proof are to be construed as describing one aggravated assault in this case.

¶ 19. Thus, the right to protection from double jeopardy precludes the second conviction, and because the jury found May guilty of Count I, we vacate May's Count II conviction and sentence.

II. Is evidence sufficient to sustain May's sexual battery conviction?

¶ 20. "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." Roberts v. State , 229 So.3d 1060, 1066-67 (¶ 21) (Miss. Ct. App. 2017) (internal quotation marks omitted) (quoting Bush v. State , 895 So.2d 836, 843 (¶ 16) (Miss. 2005), overruled on other grounds by Little v. State , 233 So.3d 288, 289 (Miss. 2017) ). We will reverse and render a conviction "if facts and inferences considered by the Court 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." Powell v. State , 249 So.3d 355, 361 (¶ 35) (Miss. 2018) (quoting Edwards v. State , 469 So.2d 68, 70 (Miss. 1985) ).

¶ 21. The Mississippi Code governs sexual battery: "A person is guilty of sexual battery if he or she engages in sexual penetration with: ... (b) A mentally defective, mentally incapacitated or physically helpless person ...." Miss. Code Ann. § 97-3-95(1)(b) (Rev. 2014). At trial, the circuit court gave the jury the following instruction:

If you find from the evidence in this case beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence that:
1. on or about September 10, 2015, in Jackson County, Mississippi;
2. the Defendant, Cameron Dwayne May, did willfully, unlawfully and feloniously engage in sexual penetration with Barbara Jalanivich; and
3. Barbara Jalanivich was a physically helpless person at the time of said act[,]
then you shall find the defendant guilty of the crime of Count III Sexual Battery.

¶ 22. The contended issue is not whether Jalanivich was physically helpless; she testified that May had beat and strangled her until she passed out, and unconsciousness is consistent with the statutory definition of a "physically helpless person." Miss. Code Ann. § 97-3-97(d) (Rev. 2014). Rather, May's contention focuses on sexual penetration. He asserts that because Jalanivich never testified that she was sexually assaulted and because the State never presented medical proof showing that Jalanivich's vaginal trauma was the result of illegal penetration, the evidence is not sufficient to sustain his sexual-battery conviction.

¶ 23. In Mississippi, sexual penetration "includes cunnilingus, fellatio, buggery or pederasty, any penetration of the genital or anal openings of another person's body by any part of a person's body, and insertion of any object into the genital or anal openings of another person's body." Miss. Code Ann. § 97-3-97(a).

¶ 24. At trial, Jalanivich testified that when she became conscious, she noticed that her undergarments had been removed. She said, "I believed [May raped me] because my panties were off and I was just bloody all over and couldn't walk, my legs hurt." She also testified that before the incident, she had no redness or other vaginal trauma. The responding police officer testified that Jalanivich told her father at the scene that she may have been raped. Finally, the nurse who performed Jalanivich's sexual-assault examination testified that Jalanivich had vaginal redness and deep bruising inside her vagina.

¶ 25. We find that Jalanivich's testimony and the sexual-assault examination provide sufficient evidence of penetration of her vagina. Therefore, after viewing all of the evidence in the light most favorable to State, we note that any rational trier of fact could have found the essential elements of sexual battery beyond a reasonable doubt. We affirm the circuit court's judgment.

III. Is evidence sufficient to sustain May's kidnapping conviction?

¶ 26. Again, "[w]hen addressing the legal sufficiency of evidence, we consider all evidence in a light most favorable to the State." Jenkins v. State , 101 So.3d 161, 165 (¶ 12) (Miss. Ct. App. 2012) (citing Beasley v. State , 74 So.3d 357, 364 (¶ 33) (Miss. Ct. App. 2010) ). "The critical inquiry is whether the evidence shows beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed." Id. (internal quotation marks omitted) (quoting McBride v. State , 61 So.3d 174, 183 (¶ 29) (Miss. Ct. App. 2010) ).

¶ 27. May was charged with kidnapping under Mississippi Code Annotated section 97-3-53 (Rev. 2014), which provides: "Any person who, without lawful authority and with or without intent to secretly confine, shall forcibly seize and confine any other person, or shall inveigle or kidnap any other person with intent to cause such person to be confined or imprisoned against his or her will ...." Miss. Code Ann. § 97-3-53. The jury instruction echoed the statute:

If you find from the evidence in this case, beyond a reasonable doubt that:
1. on or about September 10, 2015, in Jackson County, Mississippi;
2. the Defendant, Cameron Dwayne May;
3. did willfully, unlawfully, and feloniously, with or without the intent to secretly confine;
4. seize and confine Barbara Jalanivich with the intent to confine her against her will[,]
then you shall find the defendant guilty of the crime of Count IV Kidnapping.

¶ 28. May alleges that there was no evidence of forced detention and that his entrance into Jalanivich's office was "incidental to the crime of assault." But Jalanivich testified that she had been prevented from leaving her office by May, and that she had tried to fight back to escape but could not. Furthermore, May even admitted to locking the door after he left "because [he] didn't want anybody to come in there and find her laying there."

¶ 29. Therefore, after viewing Jalanivich's and May's testimony in the light most favorable to State, we find that any rational trier of fact could have found the essential elements of kidnapping beyond a reasonable doubt. Thus, we affirm the circuit court's judgment.

IV. Did the circuit court err when it denied May's motion to suppress his statement to the police?

¶ 30. "In reviewing the trial court's denial of a petitioner's motion to suppress confessions, we apply the familiar general rule that since the trial court sits as the fact-finder when determining the issue of whether an accused's confession has been intelligently, knowingly and voluntarily given, we will only reverse the trial court's determination of this issue when such determination is manifestly wrong." Keller v. State , 138 So.3d 817, 835 (¶ 16) (Miss. 2014) (quoting Glasper v. State , 914 So.2d 708, 716 (¶ 21) (Miss. 2005) ). "[W]e will not disturb the trial court's determination on the admissibility of a confession unless the trial court applied an incorrect legal standard, committed manifest error, or rendered a decision which was contrary to the overwhelming weight of the evidence." Id.

¶ 31. During custodial interrogation in Florida, May admitted to assaulting Jalanivich after he read and acknowledged his Miranda rights. Several minutes into the interrogation, but after May's admission, May responded to the officer's additional questions: "That is what, see I actually wanted to speak to my lawyer first before I spoke to you guys." But the interview continued, and May discussed additional charges with the officers. Around the eighteen-minute mark, he stated, "Okay well I can't talk about why until I speak with a lawyer first because I have to know, because I have to actually have some kind of legal counsel." The police officers ended the interview. May moved to suppress his statement, and the circuit court granted in part and denied in part his motion. Under Mississippi caselaw, including Franklin v. State , 170 So.3d 481 (Miss. 2015), Barnes v. State , 30 So.3d 313 (Miss. 2010), and Harris v. State , 123 So.3d 925 (Miss. Ct. App. 2013), the court found that May's first statement was "a statement of his past, and not his present, desire," whereas his last statement was an unequivocal invocation of his rights.

¶ 32. Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), requires custodial interrogation to be preceded by advising the defendant of his right to remain silent and his right to an attorney. "If the defendant invokes his right to counsel, the interrogation must cease until an attorney is present." Barnes v. State , 30 So.3d 313, 316 (¶ 9) (Miss. 2010). But, the defendant "must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Id. (citing Davis v. United States , 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) ). That invocation must be unambiguous. Harris v. State , 123 So.3d 925, 933 (¶ 23) (Miss. Ct. App. 2013).

¶ 33. The police officers advised May of his right to remain silent and his right to an attorney. May read those rights and signed his name acknowledging that he understood them. Still, May asserts that the entire interrogation should be excluded. But the circuit court correctly found May's first statement that he "actually wanted to speak to [his] lawyer first" was not an unambiguous invocation of his right. Rather, the statement was "mere mention of a past desire to speak with an attorney ...." However, May's later statement constituted an unambiguous articulation of May's desire for counsel. And, as such, the circuit court correctly found that all questioning after that point to be excluded. Thus, we affirm the circuit court's judgment.

CONCLUSION

¶ 34. We find that double jeopardy bars the second aggravated-assault conviction, but that evidence was sufficient to sustain his battery conviction and kidnapping conviction. We also find that the circuit court did not err when it denied May's motion to suppress his statement to the police. Thus, we affirm the convictions in Counts I, III, and IV. We reverse and render the conviction in Count II. Because the sentence for Count II was for twenty years to run concurrently with Counts III and IV sentences of thirty years each, the case is not remanded for sentencing.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, WESTBROOKS AND TINDELL, JJ., CONCUR. WILSON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.

CARLTON, J., CONCURRING IN PART AND DISSENTING IN PART:

¶ 36. I would affirm the convictions and judgment imposed by the trial court in this case. I therefore concur in part and dissent in part with the majority's decision that finds Counts I and II collectively violate the right against double jeopardy.

¶ 37. Pursuant to the precedent of the Mississippi Supreme Court and this Court, the test to determine whether a criminal defendant's right to be free from double jeopardy has been violated is the Blockburger "same elements" test. See Watkins v. State , 101 So.3d 628, 632 (¶ 12) (Miss. 2012) ; Towner v. State , 812 So.2d 1109 (¶ 22) (Miss. Ct. App. 2002). Under the Blockburger test, May was not subjected to double jeopardy because the two aggravated-assault offenses under Count I and Count II require proof of a different element under two separate provisions within section 97-3-7(2)(a) of Mississippi's aggravated-assault statute. Blockburger , 284 U.S. at 304, 52 S.Ct. 180. Also, even though Mississippi has not approved of, used, or adopted the "unit of prosecution" test, May's convictions do not offend the protection of double jeopardy under that test either because Mississippi's statute plainly and unambiguously sets forth three separate and distinct ways of committing the crime of aggravated assault.

¶ 38. The facts showed in this case that May first attacked Barbara by charging her and beating her head and face, causing serious bodily injury, including a mandible bone fracture, pterygoid fracture, and hemorrhages. The State charged this aggravated-assault offense in Count I under section 97-3-7(2)(a)(i), which covers those circumstances under which a person attempts to cause, or causes "serious bodily injury to another ... purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life."

¶ 39. May then choked Barbara, causing bodily injury to her by "[a] means likely to produce death or serious bodily harm"-May strangled Barbara causing her to become unconscious and causing injury to her neck. The State charged this different aggravated-assault offense, committed with means likely to produce death or serious bodily injury, in Count II under section 97-3-7(2)(a)(ii).

¶ 40. Section 97-3-7(2)(a) clearly and unambiguously sets forth three separate and distinct ways of committing the crime of aggravated assault. In this case, the offenses set forth in Count I and Count II are charged under separate and distinct provisions of section 97-3-7(a)(2), subsection 97-3-7(a)(2)(i) and subsection 97-3-7(a)(2)(ii), each containing an element not present in the other. In Towner , we recognized that "[a] relatively recent restatement of Blockburger was that when 'each [separately charged crime] requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes....' " Towner , 812 So.2d at 1114 (¶ 22) (quoting Iannelli v. United States , 420 U.S. 770, 785 n.17, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975) ). Although Count I and Count II both involve the same victim, the means by which May harmed Barbara, and the injuries she suffered, were separate and distinct under each Count, each requiring proof of facts that the other does not. In contrast to the majority, I would affirm the trial court's convictions and judgment of May on both Counts I and II.

      The federal Constitution's prohibition of double jeopardy applies to the states through the Fourteenth Amendment. Benton v. Maryland , 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

      Justice Rehnquist described double jeopardy as "a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator." Albernaz v. United States , 450 U.S. 333, 343, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981).

      Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    ALFA INSURANCE CORP. et al. v. R.G. "Bubba" HOWELL, Jr., and M. Stuart "Chip" Jones
    1150151
    Supreme Court of Alabama.
    September 29, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    WIREGRASS CONSTRUCTION CO. v. OZARK SAFETY SERVICES, LLC, and Parker Grassing, Inc.
    1150828
    Supreme Court of Alabama.
    August 25, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    DEUTSCHE BANK NATIONAL TRUST CO., AS TRUSTEE FOR the REGISTERED HOLDERS OF MORGAN STANLEY ABS CAPITAL 1, INC., TRUST 2007-HE7 MORTGAGE PASS THROUGH CERTIFICATES SERIES 2007-HE7; and Ocwen Loan Servicing, LLC v. Wilmer B. CALDWELL and Sonya L. Caldwell
    1150793
    Supreme Court of Alabama.
    August 25, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jennifer WINGATE, as personal representative of the estate of Jimmy Isbell v. CEQUENT CONSUMER PRODUCTS, INC.
    1140953
    Supreme Court of Alabama.
    June 24, 2017 Reh. denied September 22, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.*


text:
    DOLGENCORP, LLC v. Howard Wade LUTTRELL
    1150981
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    William POINTER v. Patrick CROWE
    1151092
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jerome MARSHALL et al. v. BOGGS & BOULDERS, LLC
    1150991
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    CITY OF BIRMINGHAM v. ENSLEY REVITALIZATION COMMITTEE, LLC, and Gilmer Drug Co.
    1150842
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    WAL-MART STORES EAST, L.P. v. Dana WILLIAMS
    1151177
    Supreme Court of Alabama.
    August 25, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Guy Dewitt CHAPPELL III v. ALABAMA STATE BAR
    1151311
    Supreme Court of Alabama.
    August 25, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Shawn BERDUX v. ALTAPOINTE HEALTH SYSTEMS, INC.
    1160007
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    BARNETT FAMILY PROPERTIES, LLC v. POUNDERS & ASSOCIATES, INC., and Gregg Pounders
    1151327
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Glynn B. CASE v. WHITNEY BANK
    1160096
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    George Locke GALBRAITH et al. v. REGIONS BANK
    1160044
    Supreme Court of Alabama.
    July 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kenneth MORROW v. CORIZON MEDICAL SERVICES, INC. (Corizon, LLC), et al.
    1160064
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    D'Miya MADISON v. Gray C. BUCK III
    1160035
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    John E. ENSLEN, in his official capacity as Probate Judge of Elmore County v. ELMORE COUNTY et al.
    1160102
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    ALABAMA STATE BAR v. Guy Dewitt CHAPPELL III
    1160188
    Supreme Court of Alabama.
    August 25, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Henry PENICK v. The MOST WORSHIPFUL PRINCE HALL GRAND LODGE F&AM OF ALABAMA
    1160145
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Valissa POGUE v. HOMESOUTH LLC
    1160151
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    John MONFEE v. Grady HICKS and Hicks Equipment Sales, LLC
    1160238
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    C. D. & O., L.L.C. v. Albert C. STRIPLIN
    1160263
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE Vivian White PAUL
    1160264
    Supreme Court of Alabama.
    August 25, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Mand. pet. denied.


text:
    EX PARTE Vivian White PAUL
    1160260
    Supreme Court of Alabama.
    August 25, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Mand. pet. denied.


text:
    Steven T. PERREAULT v. CHAOTIC INGENUITY ENTERPRISES, LLC
    1160254
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE Willie Edward FOSTER
    1160196 (CR-15-0832)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    Patricia WORKING et al. v. JEFFERSON COUNTY SHERIFF et al.
    1160270
    Supreme Court of Alabama.
    September 1, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    George Locke GALBRAITH et al. v. REGIONS BANK
    1160282
    Supreme Court of Alabama.
    August 25, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Steven Mark HAYDEN v. William B. CASHION et al.
    1160291
    Supreme Court of Alabama.
    August 25, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jerry DONOGHUE and Kellie Donoghue v. PROVIDENCE HOSPITAL, an Alabama nonprofit corp.
    1160307
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    HEALTH OPTIONS PLUS, INC. v. Winfred PETREY
    1160359
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Donna SATTERWHITE v. Kenneth PRESCOTT and Joe Wingo
    1160439
    Supreme Court of Alabama.
    August 25, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Stephen L. CURTIN and Melody L. Curtin v. FIELD ASSET SERVICES, LLC
    1160349
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Brandon JOHNSON v. Victor REVILL et al.
    1160471
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE Dominick Lewis EVERSON
    1160317 (CR-15-1224)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    Shirley MOREMAN v. DEPARTMENT OF HUMAN RESOURCES
    1160587
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE David PERRY
    1160552 (2150719)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Lacy SLATE
    1160484 (CR-15-0507)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Stephen Dewayne PARKER
    1160550 (CR-15-0602)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE David PERRY
    1160551 (2150856)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Demetrius Avery JACKSON
    1160529 (CR-15-1099)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    E.B. INVESTMENTS, L.L.C. v. PAVILION DEVELOPMENT, LLC, and Madison County Tax Collector
    1160637
    Supreme Court of Alabama.
    September 22, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE Milton BARNETT
    1160609 (2151015)
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    Taisha NEALY and Cassie Stahl v. ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT
    1160624
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE NATIONWIDE AGRIBUSINESS INSURANCE CO. et al.
    1160606
    Supreme Court of Alabama.
    August 25, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Mand. pet. denied.


text:
    EX PARTE Jonathan Mikeal RAYNES
    1160632 (CR-15-0767)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Farron Alexander TAYLOR
    1160617 (CR-15-1430)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    SKIDMORE WHITT FARM, LLC, et al. v. MADISON COUNTY
    1160648
    Supreme Court of Alabama.
    September 22, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE Nicholas Robert DUNLAP
    1160667 (CR-15-0439)
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    John C. ALLEN v. Patsy ALLEN, Jacob B. Webster, M.D., William Brantley, Carolyn M. Dohn, and Samuel N. Crosby
    1160705
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    EX PARTE Shannon GARY
    1160650 (CR-15-1425)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE William C. COLEMAN
    1160662 (CR-15-1497)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Arthur Lee GRIGGS
    1160685 (CR-15-1445)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE J.O.L.
    1160723 (2160112)
    Supreme Court of Alabama.
    August 25, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Writ of cert. quashed.


text:
    EX PARTE Leo HENLEY
    1160724 (CR-16-0074)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Alfred P. MONTGOMERY
    1160742 (CR-16-0076)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Garron BETHEL
    1160728 (CR-16-0244)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Rigoberto HERNANDEZ
    1160735 (CR-15-1513)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Katherine B. LONG
    1160741 (2160172)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Arlis WILSON
    1160743 (CR-15-0746)
    Supreme Court of Alabama.
    July 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Danny L. SMITH
    1160750 (CR-16-0417)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Charlie Joe WILSON, Jr.
    1160744 (CR-16-0380)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Gary DAY
    1160751 (CR-16-0436)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Don Evan ROBINSON III
    1160753
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Steven Duatell RICE
    1160754 (CR-15-1480)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE The QUIKRETE COS.
    1160774
    Supreme Court of Alabama.
    September 22, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Mand. pet. denied.


text:
    EX PARTE Montavious Kentrell ASKEW
    1160773 (CR-15-0056)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE NEWPORT TELEVISION, LLC
    1160775 (2150770)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Marion Cortez FELDER
    1160756 (CR-15-1446)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE D.J.P.
    1160757 (2160004)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Bobby Ray JONES
    1160772 (CR-16-0113)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Courtney Jamal FULLER
    1160776 (CR-15-0936)
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Edward Dwight COLEMAN
    1160789 (CR-16-0447)
    Supreme Court of Alabama.
    July 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Dongli Xia TRAYWICK
    1160780 (CR-15-1113)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Derrick Wayne MURRAY
    1160785 (CR-15-0268)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE T.M.H.
    1160779 (2151013)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Robert LITTLETON III
    1160788 (CR-16-0390)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Brandon Scott COLE
    1160802
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Jason Matthew SIMMONS
    1160801 (CR-15-1466)
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Terry L. BRIGGS
    1160791 (CR-15-1119)
    Supreme Court of Alabama.
    July 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Mitchell Bernard JOHNSON
    1160790 (CR-15-1442)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Ashley Brooke CRUTCHFIELD
    1160803 (CR-15-1098)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Ledon HALL
    1160805
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Adam Justin STOVALL
    1160808 (CR-15-0848)
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Ronnie Lenear COLVIN
    1160829 (CR-15-1457)
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE A.W.
    1160823 (2160140, 2160141, 2160142)
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Sarah E. JUNGWIRTH
    1160842
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Hector CARRANZA
    1160810 (CR-15-1454)
    Supreme Court of Alabama.
    July 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Anthony Tyrone GURLEY
    1160809 (CR-16-0177)
    Supreme Court of Alabama.
    July 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Michael Deon DRAPER
    1160860 (CR-15-0646)
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Woodburck NOE
    1160847 (CR-16-0525)
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Samuel J. MITCHELL
    1160858 (CR-16-0277)
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Robert Gary SIMS, Jr.
    1160859 (CR-15-0402)
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Jimmie Edward PARKER
    1160855 (CR-15-0871)
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE T.M.
    1160861 (2160271)
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE James Michael KELLY
    1160863 (CR-16-0149)
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE T.M.
    1160865 (2160272)
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Lawrence Eddie HINKLE, Jr.
    1160864 (CR-16-0318)
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Glennarius Antwuan BALDWIN
    1160868
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE J.S.
    1160878 (2160345)
    Supreme Court of Alabama.
    August 25, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE J.S.
    1160879
    Supreme Court of Alabama.
    August 25, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Garrick Demetrice CLOPTON
    1160869 (CR-16-0103)
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Terrance Kareem GARRETT
    1160873 (CR-15-1015)
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE James WINSTON
    1160872 (CR-15-0760)
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Bobby Gene MILES
    1160880 (CR-16-0593)
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE James MCINTURFF
    1160905 (CR-15-1401)
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Reuben I. PIERCE, Jr.
    1160882 (2150870)
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Devaris Cornez BROWNING
    1160900 (CR-15-1400)
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Trayon Omar WASHINGTON
    1160883 (CR-16-0570)
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE M.E.M.
    1160885 (CR-15-1186)
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Ollie Gabriel LANIER
    1160902 (CR-16-0442)
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE James ROBINSON
    1160909 (CR-16-0480)
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Jody HENDERSON
    1160910 (CR-16-0668)
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Leslie G. LOWE
    1160916 (CR-16-0777)
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE A.M.
    1160918 (2160001)
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Ned Levon HUGHES
    1160911 (CR-16-0351)
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Michael Lamar HOWARD
    1160906 (CR-16-0479)
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE STATE
    (In re State v. Caleb Tyler Haywood)
    1160934 (CR-16-0309)
    Supreme Court of Alabama.
    September 22, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Major ANDERSON
    1160929 (CR-16-0467)
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE IT ALL, INC., It All Leasing, L.L.C., Roller Knights, L.L.C., and Jim Wilhelm
    1160942 (2160154)
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Roger Anthony DIXON
    1160932 (CR-15-0152)
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Janice GREEN
    1160919 (CR-15-0531)
    Supreme Court of Alabama.
    August 11, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Antonio Deon REED
    1160952 (CR-16-0296)
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Arthur Terry HOCKADAY
    1160955 (CR-16-0464)
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE J.W.S.
    1160965 (CR-16-0101)
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Sandy Michelle OGLESBY
    1160967 (CR-16-0428)
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Wendy Michelle GILBERT
    1160968 (CR-15-0894)
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Steven Lewis COTTON
    1160954 (CR-15-1496)
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Donald Andrea DAVIS
    1160975 (CR-16-0547)
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Sterling Michael GARRETT
    1160977 (CR-16-0313)
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Tony SMITH
    1160985 (2160104)
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Harriett HOLLOWAY
    1160969 (CR-16-0299)
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Melton CROSBY III
    1160976 (CR-15-0710)
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Richardson Arthur Johnson KENNEDY
    1160970 (CR-15-1331)
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Sylvester DAVIS, Jr.
    1161010 (CR-15-1458)
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Cecelia N. KING
    1161021 (2160042)
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Lee EAKINS
    1160986 (2160330)
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Steven Barry GOODWIN
    1160992 (CR-16-0323)
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Lee EAKINS
    1160987
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.


text:
    EX PARTE Isaac Isahas WASHINGTON
    1160996 (CR-16-0571)
    Supreme Court of Alabama.
    September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Cert. denied.