author: COLEMAN, JUSTICE, FOR THE COURT:

text:
    Alvin C. WILSON a/k/a Alvin Wilson a/k/a Alvin Cornelious Wilson v. STATE of Mississippi
    NO. 2018-KA-00314-SCT
    Supreme Court of Mississippi.
    April 11, 2019
    ATTORNEY FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, Jackson
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA McCLINTON, Jackson
    BEFORE KITCHENS AND KING, P.JJ., AND COLEMAN, J.
   COLEMAN, JUSTICE, FOR THE COURT:

¶1. On August 1, 2016, a grand jury indicted Wilson for sexual battery in violation of Mississippi Code Section 97-3-95(1)(d) (Rev. 2014). The indictment charged Wilson with willfully, unlawfully, and feloniously engaging in sexual penetration with a child under the age of fourteen years old on or about March 1, 2012. The indictment provided that at the time of the sexual battery, Wilson was over the age of eighteen and was twenty-four months older than the victim.

¶2. A Jasper County jury found Wilson guilty of sexual battery as charged. The trial court sentenced Wilson to thirty-five years, with thirty years to be served day for day followed by five years of supervised post release supervision. Wilson appeals, arguing that the trial court erred by (1) admitting into evidence a video recording of his interview with law enforcement and (2) proceeding with his trial and sentencing in absentia . Discerning no error, we affirm Wilson's conviction and sentence.

FACTUAL AND PROCEDURAL HISTORY

¶3. The trial court appointed public defender Rance Ulmer to represent Wilson. On August 22, 2016, Wilson personally appeared before the trial court, waived arraignment, and entered a plea of not guilty. Wilson was released on bond, and the court set trial for February 14, 2017. The trial court ordered that Wilson remain in constant contact with his attorney and keep him advised of changes to his address and phone number.

¶4. On February 9, 2017, Wilson appeared before the trial court and entered a plea of not guilty. The trial court entered an order allowing Wilson to remain out on bond and setting trial for February 7, 2018. The order again required Wilson to remain in constant contact with his attorney and to keep him advised of any change of address and phone number. The order also provided that Wilson's "failure to appear on the aforementioned date may result in [Wilson's] being tried in [his] absence." Wilson signed the order, agreeing to its form and content.

¶5. On February 1, 2018, Wilson filed a petition to plead guilty to statutory rape in violation of Section 97-3-65(1)(b) (Rev. 2014). Wilson was scheduled to appear before the trial court to enter his guilty plea on Monday, February 5, 2018, but Wilson did not appear. After Wilson failed to appear, the sheriff's department attempted to contact Wilson. Likewise, Ulmer attempted to contact Wilson. Ulmer and the sheriff's department were unsuccessful.

¶6. Trial commenced as scheduled on Wednesday, February 7, 2018. The State announced it was ready for trial. The trial court then asked Ulmer whether Wilson was present. Ulmer responded that he had not seen Wilson and moved for a continuance because of his absence. Ulmer explained,

Last Wednesday, which according to my calendar is January 31st, 2018, I met with Mr. Wilson at my office along with his wife. We discussed this case and prepared, went over a guilty plea which he signed, executed, and we filed the next day, February 1st, 2018. He has previously been told of his trial both by verbally and by mail, which is today February 7th, 2018.
Since he was supposed -- he was to appear before this Court Monday, February the 5th, 2018, to enter his guilty plea in Bay Springs at 1 o'clock p.m. He did not show up. After that, my secretary and I made numerous phone calls to two different numbers that I have in my file. One number is disconnected, which is if I recall correctly is the number, his number which it says -- the answering machine disconnected, unavailable, and I forgot the other term that the voice on the phone left. The other number was to his mother, which just said the mailbox was full and hung up. Or no, excuse me, the mailbox had not been set up and hung up.
I tried to contact him after 5 o'clock on Monday and I believe on yesterday. Still to no avail contact him at either number. I do not know if he has had an emergency, but he is not here today and I feel on behalf -- to do my duty, I have to ask the Court for a continuance.

¶7. Ulmer informed the trial court that the last day he had contact with Wilson had been on January 31, 2018. Before the last contact, Ulmer stated that he and Wilson had spoken about his case, including possible defenses. The State offered into evidence the trial court's February 9, 2017, order of arraignment setting the case for trial on February 7, 2018. Ulmer had no objection, and the order was admitted into evidence. The trial court also recalled that the February 7, 2018, trial date had been confirmed at docket call.

¶8. The State called Investigator Chris Thompson of the Jasper County Sheriff's Department to the stand. Investigator Thompson testified that on February 6, 2018, he went to Wilson's address on file. Upon arriving at the address, Thompson spoke to Wilson's mother, who advised Thompson that she had not heard from Wilson in "a couple of days." Wilson's mother provided a phone number to Investigator Thompson. Investigator Thompson called the number on February 6, 2018, and February 7, 2018, the day of trial. Investigator Thompson was unable to contact Wilson with the phone number provided by Wilson's mother.

¶9. The trial court denied the motion for continuance in light of the evidence presented, the arraignment order setting the trial for February 7, 2018, and the confirmation of the trial date at docket call. The trial court recognized Wilson's constitutional right to be present in the courtroom at every stage of his trial, however it noted that the right is subject to waiver. The trial court found that Ulmer had made diligent efforts to contact Wilson. The trial court also found that Ulmer had done everything within his power to have his client present for trial.

¶10. The trial court found that sufficient evidence had been presented showing that Wilson's absence was not due to any intervening cause other than Wilson's own willful and voluntary absence. The trial court found that Wilson's absence was willful and voluntary amounting to a deliberate attempt to avoid trial. As such, the trial court concluded that Wilson had waived his right to be present at trial and ordered that the trial proceed in absentia . Ulmer announced that he was ready for trial, and the trial proceeded.

¶11. At the time of trial, the minor victim Jane was seventeen years old. Jane testified that she was born on October 26, 2000. Jane testified that in 2012, Wilson was her mother's boyfriend and that he lived with Jane and her mother. Jane testified that she had sexual intercourse with Wilson on March 1, 2012. On March 1, 2012, Jane was eleven years old, and Wilson was twenty-two years old. Jane became pregnant and, at the age of twelve years old, gave birth to her daughter Mary on December 6, 2012. Jane testified that Wilson is Mary's father.

¶12. Investigator Thompson testified that he investigated the alleged sexual battery of Jane. After Wilson waived his Miranda rights, Investigator Thompson interviewed Wilson. A video of the interview was played for the jury and entered into evidence.

¶13. Forensic DNA analyst Katherine Rodgers testified as an expert in the field of DNA testing. Rodgers performed a paternity test to determine whether Wilson was Mary's father using DNA samples from Wilson, Jane, and Mary. Rodgers testified that Wilson could not be excluded as the biological father of Mary. Rodgers opined that the probability that Wilson is the father of Mary is 99.999998 percent compared to an untested, unrelated man of the same race. Rodgers prepared a report of her findings, which was admitted into evidence.

¶14. The jury found Wilson guilty of sexual battery in violation of Section 97-3-95(1)(d) as charged in the indictment. The trial court sentenced Wilson to thirty-five years, with thirty years to be served day for day and the remaining five years to be served on supervised post release supervision.

¶15. Following trial, Wilson filed a motion for a judgment notwithstanding the verdict or, alternatively, for a new trial. The trial court denied the motion, and Wilson filed a notice of appeal. On appeal, Wilson raises two assignments of error: (1) whether the trial court erred by admitting a video recording of Wilson's interview with law enforcement into evidence and (2) whether the trial court erred by trying and sentencing Wilson in absentia .

STANDARD OF REVIEW

¶16. The admission or exclusion of evidence is reviewed for an abuse of discretion. Hargett v. State , 62 So.3d 950, 952 (¶ 7) (Miss. 2011). "Unless the [trial court] abuses [its] discretion so as to be prejudicial to the accused, the Court will not reverse this ruling." Shaw v. State , 915 So.2d 442, 445 (¶ 8) (Miss. 2005) (quoting Jefferson v. State , 818 So.2d 1099, 1104 (Miss. 2002) ).

¶17. The decision to grant or deny a motion for a continuance is reviewed for an abuse of discretion. Miles v. State , 249 So.3d 362, 367 (¶ 23) (Miss. 2018). Likewise, the decision to try a felony defendant in absentia is reviewed for an abuse of discretion. Wales v. State , 73 So.3d 1113, 1119-20 (¶¶ 16-18) (Miss. 2011).

DISCUSSION

I. Whether the trial court erred by admitting the video of Wilson's interview with law enforcement .

¶18. Wilson argues that the trial court erred by admitting a video of Wilson's inculpatory interview with law enforcement because no foundation had been established by the State under Mississippi Rule of Evidence 901. Wilson argues that no evidence was presented showing that the video recording was accurate. Wilson also argues that no evidence explained how the recording was made and whether the equipment used was functioning properly or otherwise was reliable.

¶19. At trial, Investigator Thompson testified that he had interviewed Wilson as part of the investigation of the case. Investigator Thompson testified that he read Wilson his Miranda rights prior to conducting the interview. Investigator Thompson testified that Wilson waived his Miranda rights and executed a Miranda waiver form. Investigator Thompson testified that, after executing the Miranda waiver, Wilson provided a statement to him in the Jasper County Sheriff's Department's interview room. Investigator Thompson testified that the statement was video recorded. Investigator Thompson also testified that he did not threaten or coerce Wilson into providing the statement. Investigator Thompson testified that the statement was freely and voluntarily given. Investigator Thompson testified that he did not offer any reward to Wilson in exchange for making the statement. Investigator Thompson testified that Wilson did not appear to be under the influence of alcohol or drugs.

¶20. After the Miranda waiver was admitted into evidence without objection, the following colloquy ensued:

MR. SMITH: I would also ask at this point in time that the video statement that [Investigator Thompson] just mentioned be entered into evidence and be allowed to play it for the jury at this time.
THE COURT: Any objection?
MR. ULMER: Play the whole thing, Judge.

¶21. The video was then played for the jury. After the video concluded, the State requested that the video be admitted into evidence. Ulmer objected "for lack of a proper foundation to admit the video into evidence." The State responded that it had laid the proper foundation, that Wilson had been advised of his Miranda rights, that the statement was voluntary, and that the statement had been provided without threat or coercion.

¶22. Ulmer raised no specific concern about the accuracy, video recording equipment, or reliability of the video recording; rather, Ulmer inquired about the date of the executed Miranda waiver. Investigator Thompson verified the date of the waiver, and the trial court overruled the objection. Investigator Thompson then testified that Wilson had provided his video recorded statement immediately after he had executed the Miranda waiver. The trial court then admitted the video statement into evidence. The State asked Investigator Thompson a follow up question: "to recap that interview with you, what did Mr. Alvin Wilson admit to you during the statement?" Ulmer objected, and the trial court said he would allow "some leeway[, b]ut Mr. Smith the video is going to speak for itself."

¶23. Based on Wilson's trial counsel's invitation to "play the whole thing, Judge[,]" we cannot say that Wilson suffered any prejudice due to the subsequent admission of the video interview into evidence. See Shaw , 915 So.2d at 445 (¶ 8) ("Unless the [trial court] abuses [its] discretion so as to be prejudicial to the accused, the Court will not reverse this ruling."

(quoting Jefferson v. State , 818 So.2d 1099, 1104 (¶ 6) (Miss. 2002) ) ).

¶24. Notwithstanding Ulmer's invitation to play the entire video, Wilson's interview was sufficiently authenticated by Investigator Thompson's testimony under Mississippi Rule of Evidence 901. Rule 901 provides, "To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." M.R.E. 901(a). An example that satisfies the requirement is testimony of a witness with knowledge that an item is what it is claimed to be. M.R.E. 901(b)(1). "A party need only make a prima facie showing of authenticity, not a full argument on admissibility. 'Once a prima facie case is made, the evidence goes to the jury and it is the jury who will ultimately determine the authenticity of the evidence, not the court.' " Walters v. State , 206 So.3d 524, 535 (¶ 32) (Miss. 2016) (quoting Sewell v. State , 721 So.2d 129, 140 (¶ 60) (Miss. 1998) ).

¶25. Wilson cites Conway v. State , 915 So.2d 521, 526 (¶ 19) (Miss. Ct. App. 2005), in support of his argument. In Conway , the Mississippi Court of Appeals reasoned that an edited surveillance video of the crime scene was admitted without proper authentication, because the officer whose testimony had been used to authenticate the video was not present at the crime scene, the officer had not edited the original video, and the officer never indicated that he had ever watched the original video. Id. at 526 (¶¶ 18-19) (concluding that the State had failed to prove that the officer had sufficient knowledge of the crime scene in order to testify that the edited videotape accurately depicted the events on the day in question). Unlike the testimony in Conway , the authentication testimony offered to authenticate Wilson's video interview was based on information within Investigator Thompson's knowledge.

¶26. Investigator Thompson testified that he personally conducted the interview with Wilson. Investigator Thompson testified about the events immediately preceding Wilson's statement involving his waiver of Miranda rights. Investigator Thompson also described where he interviewed Wilson. Furthermore, Investigator Thompson testified that the interview had been video recorded.

¶27. Investigator Thompson, who was familiar with and had knowledge of the contents of the recording, provided testimony supporting the trial court's finding that the video interview was what the State claims it was, i.e. , Wilson's interview with Investigator Thompson. Authentication might be accomplished "by testimony from someone familiar with and with knowledge of the contents of the document or recording" under Rule 901(b)(1). Corrothers v. State , 148 So.3d 278, 310 (¶ 78) (Miss. 2014) (quoting Bunch v. State , 123 So.3d 484, 492 (¶ 20) (Miss. Ct. App. 2013) ). The trial court did not abuse its discretion by admitting the video interview into evidence.

II. Whether the trial court erred by trying and sentencing Wilson in absentia .

¶28. Wilson argues that, although he did not appear for his scheduled trial, the trial court erred by denying his motion for a continuance, because it was not abundantly clear that his absence was willful. Wilson also argues that the trial court erred by proceeding with his trial and sentencing him in absentia .

¶29. "The decision to grant or deny a motion for a continuance is within the sound discretion of the trial court and will not be grounds for reversal unless shown to have resulted in manifest injustice." Simmons v. State , 805 So.2d 452, 484 (¶ 72) (Miss. 2001) (citing Coleman v. State , 697 So.2d 777, 780 (Miss. 1997) ). Here, the trial court properly proceeded within its discretion under Mississippi Code Section 99-17-9, which provides

In criminal cases the presence of the prisoner may be waived (a) if the defendant is in custody and consenting thereto, or (b) is on recognizance or bail, has been arrested and escaped, or has been notified in writing by the proper officer of the pendency of the indictment against him, and resisted or fled, or refused to be taken, or is in any way in default for nonappearance, the trial may progress at the discretion of the court, and judgment made final and sentence awarded as though such defendant were personally present in court.

Miss. Code Ann. § 99-17-9 (Rev. 2015). The trial court's discretion under Section 99-17-9 is "limited by the fact that a felony defendant has a constitutional right to be present at trial." Wales , 73 So.3d at 1120 (¶ 17) (citing U.S. Const. amend. VI ; Miss. Const. art. 3, § 26 ).

¶30. In Wales , the Court held that the trial court did not abuse its discretion in finding that defendant Leo Wales had voluntarily absented himself from his trial. Wales , 73 So.3d at 1120 (¶ 18). The Court explained that Wales had assisted in his defense by consulting with his attorney in anticipation of trial a week later. Id. Although Wales knew his trial date, he did not appear at the courthouse for his trial. Id. The Court noted that extensive efforts to locate Wales over a two day period by the prosecution, the defense, and law enforcement were fruitless. Id. Like Wilson, Wales argued that "no direct evidence was before the trial court that his absence was voluntary[,]" however, the Court held that "substantial circumstantial evidence was before the trial court demonstrating Wales's intent to avoid trial." Id.

¶31. Here, Wilson failed to appear on the date of his scheduled trial, and the trial court thoroughly inquired into Wilson's nonappearance. Ulmer informed the trial court that he personally told Wilson that his trial was set for February 7, 2018. Ulmer informed the trial court that Wilson had been advised of his February 7, 2018, trial date by mail. Ulmer explained his multiple unsuccessful efforts to contact Wilson, even though Wilson had been ordered by the trial court to keep in constant contact with his trial counsel, including advising his trial counsel of any address or telephone number changes. Investigator Thompson also testified that he had made multiple unsuccessful efforts to contact Wilson after he had failed to appear at a hearing two days before his scheduled trial date.

¶32. Based on the evidence presented, the trial court found that Wilson's absence had been a willful, voluntary, and deliberate attempt to avoid trial. As a result, the trial court found that Wilson waived his constitutional rights to be present at trial. As in Wales , we hold that the trial court did not abuse its discretion in trying Wilson in absentia .

¶33. Alternatively, Wilson argues that even if the trial court did not err by trying him in absentia , the trial court should have waited to sentence Wilson until he was in custody.

¶34. After the jury returned a guilty verdict, the trial court announced

Because we tried this matter in absentia under Section 99-17-9, as I read the statute even though we had trial today, we may proceed to final judgment. Any objection from the defendant on me sentencing Mr. Wilson at this time?

¶35. Ulmer responded that he was not familiar with the statute and that he would "certainly defer to [the trial court's] judgment on [the statute]." The State also stated that it would "[d]efer to the [trial c]ourt." After reviewing the statute, the trial court found that it might progress with sentencing at its discretion. The trial court proceeded by sentencing Wilson as though he were present.

¶36. Even if Wilson's alternative argument had been properly preserved, his argument wholly lacks merit. As written above, the trial court did not abuse its discretion by finding that Wilson had waived his constitutional rights to be present at trial and by trying him in absentia . Under Section 99-17-9, "the trial may progress at the discretion of the court, and judgment made final and sentence awarded as though such defendant were personally present in court. " Miss. Code Ann. § 99-17-9 (emphasis added).

CONCLUSION

¶37. For the reasons stated above, we affirm the trial court's judgment.

¶38. AFFIRMED.

RANDOLPH, C.J., KITCHENS AND KING, P.JJ., MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.

      To protect the identity of the minor victim, the Court will use the fictitious name Jane.

      To protect the identity of the victim's daughter's name, the Court will use the fictitious name Mary.

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

      The prosecutor for the State was Carter Smith.

      The record's exhibit envelope contains a CD/DVD purporting to be the subject interview. The CD/DVD is marked "Alvin Wilson Interview 9-24-15" along with the exhibit sticker labeled "EXHIBIT S-3." The CD/DVD contains two video files. The video files are a video recording of a law enforcement interview with a female apparently from an entirely unrelated case based on the content of the interview. No other video file is on the CD/DVD, and no other CD/DVD is contained in the exhibit folder or elsewhere in the record.
      On June 8, 2018, the Jasper County Circuit Clerk served notice of the completion of the appeal record for attorney review as required by Mississippi Rule of Appellate Procedure 11(d)(2). On June 21, 2018, Ulmer certified that the record was correct and complete to the best of his knowledge after careful examination as required by Rule 10(b)(5). On July 19, 2018, Ulmer filed a motion to withdraw and requested that the Indigent Appeals Division of the Office of the State Public Defender be substituted as counsel of record. On June 23, 2018, Ulmer's motion was granted. Although the representations made in the parties' briefs and exhibit list indicate that Wilson's video interview is in the record, it is not. Wilson's appellate counsel had the "duty to see that all ... exhibits ... are included in the record, and he may not complain of his own failure in that regard.... There are adequate procedures and safeguards to assure that incorrect or incomplete records are remedied." State ex rel. Miss. Bureau of Narcotics v. Canada , 164 So.3d 1003, 1006 (¶ 9) (Miss. 2015) (quoting Oakwood Homes Corp. v. Randall , 824 So.2d 1292, 1293 (¶ 4) (Miss. 2002) ). Notwithstanding appellate counsel's failure, a review of the police interview is not necessary for purposes of the issues on appeal. Both parties agree that the interview contained inculpatory statements. Other than generally referring to the statements as inculpatory, neither party describes the substantive content of the interview.

      Wilson never raised-at trial or on appeal-Mississippi Rule of Criminal Procedure 10.1, which went into effect on July 1, 2017.


source: Caselaw Access Project

author: MAXWELL, JUSTICE, FOR THE COURT:

license: Public Domain

text:
    Michael J. MALOUF v. Lisa EVANS d/b/a Lake Harbour Marine
    NO. 2017-CT-00374-SCT
    Supreme Court of Mississippi.
    April 11, 2019
    ATTORNEYS FOR APPELLANT: MICHAEL J. MALOUF, Jackson, ROBERT EUGENE JONES, II, Brookhaven
    ATTORNEY FOR APPELLEE: CHRISTOPHER A. TABB, Brandon
    EN BANC.
    ON WRIT OF CERTIORARI
   MAXWELL, JUSTICE, FOR THE COURT:

¶1. The county court judge granted Lisa Evans's motion for a directed verdict in Michael J. Malouf's tort-based lawsuit over boat repairs promised and paid for but allegedly never made. The judge dismissed the case after finding Malouf failed to prove Lisa and her deceased husband, a boat mechanic, had been in a partnership when doing business as Lake Harbour Marine. But in granting Lisa a directed verdict, the court wrongly gave Lisa, not Malouf, favorable evidentiary inferences drawn from Malouf's testimony and did not take Malouf's testimony as true-as is required before a trial judge may take a case away from a jury. The trial judge also incorrectly found that insufficient proof of a partnership between Lisa and her husband was dispositive of all of Malouf's tort claims-even those that did not hinge on the existence of a partnership.

¶2. Malouf testified that Lisa presented herself as an owner of Lake Harbour Marine and was thoroughly involved in almost all of his interactions with the business-acting as if she had authority in its dealings. Even so, the trial judge inferred Lisa "was just doing as she was told." And the Court of Appeals, in affirming the trial court's judgment, similarly assumed she was "nothing more than an employee" who could not be held liable for demanding Malouf pay $ 3,850 in cash for boat repairs her husband never made. After review, we find that when Malouf's testimony and evidence is taken as true and he is given all reasonable inferences, the evidence at least creates a jury issue on whether Lisa, as her husband's partner, is liable for his actions in the boat-repair shop. It was also error for the county court and appellate court to cite the supposed lack of a partnership as reason to dismiss Malouf's claims against Lisa individually for her own alleged fraudulent or negligent misrepresentations. For these reasons, we find the trial judge should not have taken the case from the jury.

¶3. We thus reverse the judgment granting Lisa a directed verdict and remand this case to the Circuit Court of Rankin County for a new trial de novo.

Background Facts and Procedural History

I. Purported Boat Repair

¶4. In May 2014, Malouf discovered his ski boat did not run properly. He first took the boat to Ivy Marine. Mike Ivy told Malouf the engine was cracked. Ivy estimated the repairs would cost $ 6,000 to $ 7,000.

¶5. Wanting a second opinion, Malouf took the boat to Lake Harbour Marine in Flowood, Mississippi. Important to this case, "Lake Harbour Marine" is not a recognized business registered with the Mississippi Secretary of State's Office. Instead, it was run under a d/b/a ("doing business as") type of arrangement. At Lake Harbour Marine, Mike Evans inspected the boat and told Malouf he could put a new 350-horsepower engine in the boat and make other necessary repairs for $ 4,500 to $ 5,500. Malouf agreed to the deal, with the stipulation he needed the boat by July 4, 2014. Evans directed Justin Atwood, who was working at Lake Harbour Marine that summer, to "write [Malouf] up" and collect a $ 2,000 down payment.

¶6. As the July 4th approached, Malouf worried his boat would not be ready. He called Lake Harbour Marine several times, but no one answered. He then went by the business. This is when he met Lisa, Evans's wife. When Malouf told her he was looking for Evans, Lisa directed Malouf to the back where the boats were. Malouf asked Evans about the boat's status, and Evans said, "there's your brand new engine right there." But Malouf protested that the old and beat-up engine Evans pointed to was not new. According to Malouf, Evans became "very vocal and very violent" and told Malouf to get off his property. The next day, Malouf sent his stepson to check on the boat, and Evans ran off the stepson too.

¶7. Following his confrontation with Evans, Malouf called Lake Harbour Marine multiple times. Each time he spoke with Lisa, who assured Malouf they were working on his boat. According to Malouf, Lisa presented herself as an owner of Lake Harbour Marine. In their conversations, Lisa knew what was going on with his boat. And she acted like she had authority. For example, in one conversation, Lisa told Malouf some parts were missing from his boat. Malouf told her the parts had probably been left at Ivy Marine. So Lisa arranged for her daughter to pick them up. In another call, Lisa accused Malouf's daughter of spreading lies about "our company" on Facebook. And Lisa told Malouf that if he wanted his boat back, he would have to pay $ 3,850 in cash.

¶8. July 4th came and went without the boat being repaired, despite Malouf's numerous phone calls. On July 11th, Malouf sent Lisa a letter:

Lisa,
This will confirm our conversation of a few moments ago wherein you advised that you would not release my boat or send me an invoice. You stated that I must go through your attorney, Chris Tabb[.]

Through Tabb, Malouf arranged to pick up his boat that day. Malouf, his son, and a Flowood police escort arrived at Lake Harbour Marine with $ 3,850 in cash. Lisa was present with her attorney, Tabb, and Tabb's legal assistant. The assistant collected the cash and turned over an invoice. On the invoice, Lisa had handwritten the purported boat parts that had been installed, including a new short-block engine.

¶9. Malouf and his son immediately took the boat to the nearby Ross Barnett Reservoir. But the boat did not run properly. The ski boat, when throttled, would not exceed five miles per hour. Malouf then took the boat back to Ivy Marine. Ivy told Malouf the work Malouf had paid Lake Harbour Marine for had never been performed. In particular, the cracked engine had not been replaced.

II. Lawsuit

¶10. On July 22, Malouf informed Lisa's attorney, Tabb, by letter that it was obvious the cracked engine had not been replaced. Malouf made clear he "intend[ed] to pursue all available legal remedies against Mike Evans and Lake Harbour Marine."

¶11. Malouf followed through with his intention. On August 12, 2014, Malouf sued both Evans and Lisa, individually and d/b/a Lake Harbour Marine. Among other things, Malouf alleged fraud and misrepresentation. Shortly after Malouf filed the complaint, Evans died. So Malouf's suit proceeded against Lisa, individually and d/b/a Lake Harbour Marine.

¶12. In June 2016, trial commenced in the County Court of Rankin County before a six-member jury. Malouf called four witnesses-himself, his son, Atwood, and Ivy. Relevant to this appeal, Malouf's son testified he spoke only to Lisa about the boat. According to him, "she was controlling everything at that point." Atwood testified that, while he worked at Lake Harbour Marine, Lisa did all the paperwork and tried to help out as much as possible. She did not work set hours. Instead, she would "come and go," checking in on the business daily. Lisa helped log in parts that were delivered and write up invoices about the work Evans performed. Regarding Malouf's boat, Atwood testified Lisa and Evans "had a bunch of conversations."

¶13. Atwood confirmed that no new engine had been delivered to Lake Harbour Marine during this time frame. And Ivy testified that the boat appeared to have the exact same engine as it did before Malouf took it to Lake Harbour Marine. During Malouf's son's testimony, it also came to light that the serial number for the engine had been removed.

III. Directed Verdict

¶14. At the end of Malouf's case in chief, before Lisa put on any evidence to dispute Malouf's claims, Lisa moved for a directed verdict. She claimed Malouf failed to prove she was liable. Her cited reason was his failure to establish she and her husband had formed a partnership. The county court granted Lisa's motion. The court was convinced, based on Malouf's evidence, that Evans "absolutely hoodwinked, bamboozled, and cheated Mr. Malouf." But the judge agreed with Lisa's counsel that she lacked the necessary control to be in a partnership with Evans. And if Lisa was not a partner, the county court concluded, there was no reason to assume she knew her husband had tried to pawn off the same motor as new. Rather, Lisa, who merely "worked in the front," was "just the messenger." The county court directed a verdict in Lisa's favor, dismissing Malouf's claims against her.

IV. Appeal

¶15. Malouf appealed to the Rankin County Circuit Court, which affirmed. Malouf then appealed to this Court. And we assigned the matter to the Court of Appeals. In a five-to-four decision, the Court of Appeals affirmed. Malouf v. Evans , No. 2017-CA-00374-COA, --- So.3d ----, 2018 WL 3434280 (Miss. Ct. App. July 17, 2018). The majority opinion focused on the three considerations for determining whether a partnership has been formed-intent, control, and profit sharing. The majority found that "Malouf did not present evidence to establish that Lisa was more than an employee," so the trial court was correct to find Malouf had failed to prove Lisa and Evans were in a partnership. Id. at ----, 2018 WL 3434280 at *4.

¶16. Following the appellate court's decision, Malouf petitioned for certiorari review, which we granted.

Discussion

¶17. We begin by noting that the Court of Appeals' opinion focused on the factors for determining when a partnership exists-and understandably so. The reason for this narrow review was because both Lisa's motion for a directed verdict and the county court's decision were based on Lisa's argument that Malouf had failed to prove a partnership. But the reality is that this case is not about whether a partnership existed. This is a tort case-a case in which Malouf seeks to hold Lisa liable for either fraud or negligence based on boat repairs that were undisputedly never made. Malouf presented three theories of liability: Lisa is liable for Evans's actions because she was a partner in Lake Harbour Marine; Lisa is liable for Evans's actions because, in her dealings with Malouf, she held herself out as Evans's partner; and/or Lisa is liable individually for her own fraudulent or negligent misrepresentations to Malouf. Only one theory hinges on the existence of a partnership. So the partnership question is not dispositive.

¶18. Regarding Malouf's theories, we note the jury made no findings on whether Lisa was or was not liable. In fact, the jury made no findings at all. Instead, the county court took this case away from the jury and directed a verdict in Lisa's favor following Malouf's case in chief.

¶19. Of course, Mississippi Rule of Civil Procedure 50(a)"requires the trial court to take a case from a jury and grant a directed verdict if any verdict other than the one directed would be erroneous as a matter of law." Harrison v. McMillan , 828 So.2d 756, 764 (Miss. 2002). However, when ruling on a motion for directed verdict, the trial court must "look solely to the testimony on behalf of the party against whom a directed verdict is requested[,] ... tak[ing] such testimony as true along with all reasonable inferences which can be drawn from that testimony which is favorable to that party[.]" White v. Thomason , 310 So.2d 914, 916-17 (Miss. 1975). And if the evidence, when viewed in this light, "could support a verdict for that party, the case should not be taken from the jury." Harrison , 828 So.2d at 764 (quoting McKinzie v. Coon , 656 So.2d 134, 137 (Miss. 1995) ). But "[i]f reasonable minds might differ as to this question, it becomes a jury issue." White , 310 So.2d at 917 (citing Williams v. Weeks , 268 So.2d 340 (Miss. 1972) ; Jones v. Phillips , 263 So.2d 759 (Miss. 1972) ).

¶20. Here, based on a de novo review, we find it was error to take this case away from the jury. Both the county court's and Court of Appeals' decisions hinged on inferences from Malouf's testimony. But contrary to our directed-verdict standard, the courts' inferences favored Lisa , the moving party, and not Malouf.

¶21. Specifically, the county court found Lisa lacked the necessary control to be a partner. The judge inferred this from evidence that Malouf only dealt with Lisa after his confrontation with Evans. In other words, the county court inferred that Lisa was a subordinate who only became involved after Malouf refused to deal with Evans. But considering the evidence in the light most favorable to the non-movant, it is just as reasonable to infer Lisa was a partner or co-owner with her husband. And she stepped into a customer dispute when her partner became difficult. This latter inference is consistent with Malouf's testimony that Lisa presented herself as an owner of Lake Harbour Marine. And it is in line with Malouf's testimony that Lisa acted as if she had authority, which under our directed-verdict standard we must accept as true.

¶22. The county court also found that, because Lisa "worked in the front" and Evans "worked in the back," there was a "real inference" that Lisa did not know anything about the actual work performed on Malouf's boat. According to the county court, "there's no way to even assume she did anything other than write down [on Malouf's invoice] what she was told." These inferences similarly favored Lisa, which conflicts with the directed-verdict standard.

¶23. Malouf testified Lisa appeared to know the status of his boat, even arranging to have missing parts picked up. Atwood testified that Lisa and Evans "had a bunch of conversations" about Malouf's boat. And it was uncontested that no motor was delivered to Lake Harbour Marine during this time. Based on this evidence, it was just as reasonable to infer Lisa did know what work had or had not been performed when she hand wrote the invoice describing the work claimed but not actually performed on Malouf's boat. And the trial court's assumption that she was "just the messenger" is just that-an assumption not supported by specific evidence.

¶24. The Court of Appeals majority likewise assumed that Lisa was "nothing more than an employee." Malouf , --- So.3d at ----, 2018 WL 3434280, at *4. But the record contains no evidence that Lisa was merely an employee and not a co-owner or partner of Lake Harbour Marine. There was no evidence she worked regular hours, had established job duties, or was paid hourly wages or a salary. Instead, Atwood testified that Lisa would "come and go," checking in at some point every day and that she tried to "help out" as much as possible. Malouf testified Lisa dealt with him extensively, finally demanding he talk to "her lawyer." Further, Lisa was the one who told Malouf he would have to show up with $ 3,850 in cash to get his boat back. And it was Lisa who wrote out the invoice, releasing the boat after receiving his cash. From this evidence and from Malouf's testimony that Lisa presented herself as an owner, it is just as reasonable to infer that Lisa was acting as a partner. Taking this evidence in the light most favorable to the non-movant, it was reasonable to infer Lisa was checking in on and helping her family business run smoothly. Regardless, when reasonable minds might differ, the question is one for the jury to resolve, not the trial court on directed verdict. White , 310 So.2d at 917.

¶25. To reiterate, "[i]n deciding whether a directed verdict ... should be granted, the trial judge is to look solely to the testimony on behalf of the party against whom a directed verdict is requested." White , 310 So.2d at 916. The judge must "take such testimony as true along with all reasonable inferences which can be drawn from that testimony which is favorable to that party [.]" Id. at 916-17 (emphasis added). When viewed in this light, there is evidence to create a jury question on Malouf's theories that Lisa is liable for Evans's false repairs because she was doing business as Lake Harbour Marine and/or that Lisa is liable individually because she knew or should have known the invoice she gave Malouf was false.

¶26. We thus find the county court erred in granting Lisa's motion and directing a verdict against Malouf. And the reviewing courts erred in affirming the judgment. The judgments of the Court of Appeals, the Circuit Court of Rankin County, and the County Court of Rankin County are reversed. The case is remanded to the Circuit Court of Rankin County for a trial de novo. See Miss. Code Ann. § 11-51-79 ("[I]f if a new trial is granted [by the Supreme Court,] the cause shall be remanded to the docket of such circuit or chancery court and a new trial be had therein de novo.").

¶27. REVERSED AND REMANDED.

RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. GRIFFIS, J., NOT PARTICIPATING.

      Harrison v. McMillan , 828 So.2d 756, 764 (Miss. 2002).

      See Miss. Code Ann. § 11-51-79 (Rev. 2012), invalidated on other grounds by Brown v. Collections, Inc. , 188 So.3d 1171, 1177 (Miss. 2016).

      According to Atwood, when it comes to engines, "[y]ou have a short block and a long block. A short block is just the block, the crank, the pistons, the rings[, while] ... the long block comes with intake, comes with everything except your front accessories."

      Malouf testified that he had filed a claim with Evans's estate, but the estate was insolvent.

      The majority also rejected the dissent's contention that Lisa could still be potentially liable as a purported partner or joint venturer, again asserting that the "evidence presented nothing more than an employee status." Id. at ----, 2018 WL 3434280 at *4.


text:
    Robert PERKINS v. Rashida NELSON
    2016-CT-01789-COA
    Supreme Court of Mississippi.
    Filed: December 18, 2018 Closed: April 4, 2019
    Motion Desc: Appellants' Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    Jason CASTLE v. Mary CASTLE
    2017-CT-00213-COA
    Supreme Court of Mississippi.
    Filed: January 16, 2019 Closed: April 4, 2019
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    Jeremy Shane FOGLEMAN v. STATE of Mississippi
    2016-CT-01244-SCT
    Supreme Court of Mississippi.
    Filed: January 24, 2019 Closed: April 11, 2019
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Granted.


text:
    Sidney Keith Austin FERGUSON v. STATE of Mississippi
    2017-CT-00855-COA
    Supreme Court of Mississippi.
    Filed: January 28, 2019 Closed: April 11, 2019
    Motion Desc: Petition for Certiorari.
    Certiorari - Denied.


text:
    Skylar O'KELLY v. STATE of Mississippi
    2016-CT-01147-COA
    Supreme Court of Mississippi.
    Filed: January 2, 2019 Closed: April 11, 2019
    Motion Desc: Petition for Certiorari.
    Certiorari - Denied.


text:
    Cortavius FERGUSON v. STATE of Mississippi
    2017-CT-00540-COA
    Supreme Court of Mississippi.
    Filed: February 12, 2019 Closed: April 4, 2019
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    Kep LAFOON v. STATE of Mississippi
    2017-CT-01724-COA
    Supreme Court of Mississippi.
    Filed: March 7, 2019 Closed: April 25, 2019
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    Clayton Paul BATEMAN v. STATE of Mississippi
    2016-CT-01353-COA
    Supreme Court of Mississippi.
    Filed: February 26, 2019 Closed: April 18, 2019
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    Cameron Dwayne MAY v. STATE of Mississippi
    2017-CT-00884-COA
    Supreme Court of Mississippi.
    Filed: March 13, 2019 Closed: April 18, 2019
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    Akem GRASSAREE v. STATE of Mississippi
    2017-CT-01107-COA
    Supreme Court of Mississippi.
    Filed: January 29, 2019 Closed: April 4, 2019
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    Kelton K. HATHORNE v. STATE of Mississippi
    2017-CT-00811-COA
    Supreme Court of Mississippi.
    Filed: March 19, 2019 Closed: April 18, 2019
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    MATHES ELECTRIC SUPPLY CO., INC. v. CAN'T BE BEAT FENCE CO., LLC
    2016-CT-01365-COA
    Supreme Court of Mississippi.
    Filed: February 11, 2019 Closed: April 18, 2019
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    Chelsey FERGUSON v. MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY-CRIMINAL
    2017-CT-00912-SCT
    Supreme Court of Mississippi.
    Filed: February 19, 2019 Closed: April 12, 2019
    Motion Desc: Appellee Petition for Writ of Certiorari.
    Certiorari - Dismissed.


text:
    Ray JAMES v. STATE of Mississippi
    2017-CT-01195-COA
    Supreme Court of Mississippi.
    Filed: February 8, 2019 Closed: April 4, 2019
    Motion Desc: Writ of Certiorari.
    Certiorari - Denied.


author: WILSON, J., FOR THE COURT: LEE, C.J., SPECIALLY CONCURRING: CARLTON, J., CONCURRING IN PART AND DISSENTING IN PART: GREENLEE, J., CONCURRING IN PART AND DISSENTING IN PART:

text:
    Skylar O'KELLY a/k/a Skylar Noel O'Kelly, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01147-COA
    Court of Appeals of Mississippi.
    August 30, 2018 Rehearing Denied December 18, 2018
    ATTORNEY FOR APPELLANT: RODNEY A. RAY, Columbus
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER, Jackson
    EN BANC.
   WILSON, J., FOR THE COURT:

¶ 1. In August 2014, Skylar O'Kelly sold or gave his friend Parker Rodenbaugh two "hits" of 25B-NBOMe, a controlled substance referred to at trial as "synthetic LSD." A few hours later, Rodenbaugh died from the toxic effects of the drug. O'Kelly was indicted for trafficking in a controlled substance and depraved-heart murder. Following a jury trial in the Oktibbeha County Circuit Court, O'Kelly was convicted on both counts and sentenced to concurrent terms of ten years in the custody of the Mississippi Department of Corrections (MDOC) for trafficking and twenty years in MDOC custody for depraved-heart murder.

¶ 2. On appeal, O'Kelly challenges the sufficiency and weight of the evidence on both counts and argues that the circuit court erred by denying his pretrial motion to suppress statements that he made to police. We affirm O'Kelly's conviction for drug trafficking, and we hold that the circuit did not err by denying O'Kelly's motion to suppress. However, we hold that the evidence introduced at trial was insufficient to support a conviction for either depraved-heart murder or the lesser-included offense of culpable-negligence manslaughter. Therefore, we reverse and render a judgment of acquittal on that count. We remand the case for resentencing on the conviction for trafficking in a controlled substance.

FACTS AND PROCEDURAL HISTORY

¶ 3. In July 2014, O'Kelly, then twenty-one years old, paid a former high school classmate $500 for approximately 450 dosage units or "hits" of 25B-NBOMe, a controlled substance referred to at trial as "synthetic LSD." O'Kelly bought the drugs both for personal use and to sell to others for $10 per hit. O'Kelly claimed that he did not know that the drug was illegal, but he admitted that he had never heard of it being sold openly or in a store. O'Kelly further testified that he did not know that the drug was dangerous. After he bought the drugs, both O'Kelly and his younger brother Daylin, then nineteen years old, took hits on one or more occasions.

¶ 4. O'Kelly moved to Starkville in August 2014. He testified that he planned to attend Mississippi State University, but he was not enrolled. On August 9, 2014, O'Kelly and Daylin were at O'Kelly's apartment in Starkville. Around 9 p.m., they went to a house where Parker Rodenbaugh, a twenty-two year old MSU student, lived with four other MSU students. O'Kelly and Rodenbaugh graduated from high school together, and O'Kelly testified that they were "best friends." O'Kelly testified that he, Daylin, and Rodenbaugh went downstairs, smoked marijuana and tobacco from a hookah pipe, and played video games. One of Rodenbaugh's roommates, Pierson Crowder, was hosting a fantasy football draft party upstairs with several guests. Two of Rodenbaugh's other roommates, Sam and David Kealhofer, were also present at different times during the night.

¶ 5. O'Kelly testified that around 10 p.m. Rodenbaugh asked him if he "wanted to trip," referring to the NBOMe. O'Kelly testified that he and Rodenbaugh had taken NBOMe together previously. O'Kelly went back to his apartment, retrieved five hits of NBOMe, and then returned to Rodenbaugh's house. O'Kelly took two hits himself, gave one hit to Daylin, and gave two hits to Rodenbaugh. O'Kelly told police that Rodenbaugh agreed to pay $20 for the two hits later. Rodenbaugh told both Crowder and Sam Kealhofer that he had taken "acid" or "LSD." They were not shocked or surprised, as they knew that Rodenbaugh had taken acid before. Nor were they concerned, as Rodenbaugh seemed fine at that time.

¶ 6. Forty-five minutes to an hour later, Rodenbaugh "began to repeat himself"-saying "good vibes" over and over-and saying things that did not "make sense." O'Kelly testified that Parker's behavior "wasn't really anything serious," and others "were laughing" and thought "it was funny." Later, however, Rodenbaugh went running through the house, hit his head on a shelf, and fell to the floor. After others helped him to his feet, Rodenbaugh ran down a hall and into a door, and fell down again. After that, Crowder, the Kealhofers, O'Kelly, and Daylin sat with Rodenbaugh for periods of time while Rodenbaugh lay on the floor. O'Kelly testified that Rodenbaugh was talking and sometimes coherent, but he also continued to repeat himself and say things that did not make sense.

¶ 7. O'Kelly testified that, "[a]fter a while, [Rodenbaugh] seemed to have calmed down." O'Kelly then went to another part of the house to smoke a cigarette "to calm [himself] down because [he] was a little bit under the influence at the time." Crowder and the Kealhofers stayed with Rodenbaugh. Later, O'Kelly came back to check on Rodenbaugh, and he could see that Rodenbaugh's roommates were trying to talk to him, but Rodenbaugh's feet were "kind of spasming." O'Kelly claimed that he said, "[H]ey, if there's anything I can do, please let me know." He claimed that Crowder answered, "[I]t's okay; we got it." O'Kelly and Daylin then went back downstairs and smoked the hookah pipe again.

¶ 8. Crowder and Sam Kealhofer testified at trial, and their testimonies were generally consistent with O'Kelly's testimony. They testified that they were not concerned when Rodenbaugh told them that he had taken acid, as they knew that he had taken acid before. Nor were they concerned when Rodenbaugh began "tripping," as he seemed to be fine. Even after Rodenbaugh was lying on floor, repeating himself, and periodically tensing up or spasming, they did not believe that he needed medical attention-in part because they knew that O'Kelly and Daylin had taken the same drugs and were not experiencing any negative effects. Crowder and Sam Kealhofer testified that they called 911 only after Rodenbaugh began to turn blue and seemed to stop breathing. They both testified that O'Kelly and Daylin were not with Rodenbaugh by that point.

¶ 9. O'Kelly testified that he and Daylin were downstairs when one of the guests from the draft party told them that they had to leave immediately because an ambulance was on its way. O'Kelly and Daylin left and went back to O'Kelly's apartment. O'Kelly claimed that he tried to call several people to check on Rodenbaugh's condition, but he could not get in touch with anyone.

¶ 10. When paramedics arrived at Rodenbaugh's house, they attempted to resuscitate him. However, their efforts were unsuccessful, and Rodenbaugh was pronounced dead. Dr. Lisa Funte, a forensic pathologist from the State Medical Examiner's Office, later identified the cause of death as the toxic effects of NBOMe.

¶ 11. Around 5:30 a.m. on August 10, Lieutenant Shawn Word of the Starkville Police Department went to O'Kelly's apartment. Word called O'Kelly's cell phone and asked him to step outside to talk, and O'Kelly agreed. At the outset of their conversation, Word advised O'Kelly of his Miranda rights. O'Kelly acknowledged that he had been at Rodenbaugh's house the night before. Word then told O'Kelly that Rodenbaugh had died. Word testified that O'Kelly "got emotional, went down in a crouching position," and stated, "I'm done with drugs." Word asked O'Kelly who else had taken the drugs, and O'Kelly stated that only he and Daylin had, and they were fine. O'Kelly told Word that there were no drugs in his apartment. O'Kelly told Word that he had only purchased five hits to begin with, and he, Daylin, and Rodenbaugh had taken all of them.

¶ 12. Word took O'Kelly to the police station for further questioning. At the station, Word again advised O'Kelly of his Miranda rights, and the interview was videotaped. O'Kelly reiterated that he had purchased only five hits of NBOMe and had paid $50 for them. O'Kelly stated that when Rodenbaugh was "on the floor" and "kept shaking," "he didn't know what to do" and "was getting freaked out." O'Kelly stated that "he couldn't take ... watching his friend like" that, so he and Daylin went downstairs to smoke the hookah pipe. O'Kelly said that he went back to "check on [Rodenbaugh] periodically." Word asked O'Kelly why he did not call 911; O'Kelly "said he didn't know" and "was just hoping [Rodenbaugh would] work through it."

¶ 13. At the conclusion of the interview, Word told O'Kelly that he had a search warrant for O'Kelly's apartment, and Word asked again whether there were any drugs in the apartment. O'Kelly then admitted that he had paid $500 for 450 hits and that "less than 450 hits" were hidden in a bag in his closet.

¶ 14. Detective Bill Lott then conducted a videotaped interview of O'Kelly. Lott again advised O'Kelly of his rights and obtained a signed Miranda waiver at 6:40 a.m. At 7:06 a.m., O'Kelly signed a written statement consistent with his prior statements to Word. In his written statement, Word admitted that he had sold Rodenbaugh two hits of NBOMe for $10 per hit ($20 total) and "told him [he] could pay later."

¶ 15. Word subsequently found two sheets of NBOMe in 1/4? x 1/4? perforated squares (hits) in a bag in O'Kelly's closet, as O'Kelly had described. The sheets contained approximately 425 squares. In January 2015, O'Kelly was indicted for trafficking in a controlled substance, Miss. Code Ann. § 41-29-139(f) (Supp. 2014), and one count of second-degree or "depraved-heart" murder, Miss. Code Ann. § 97-3-19(1)(b) (Rev. 2014). The case eventually proceeded to trial in August 2016.

¶ 16. At trial, Dr. Funte testified that "NBOMe is incredibly potent" and "has been linked to death at very, very low levels of the drug." The drug "binds to a receptor in [the user's] brain" and can "stimulate[ ] a condition called serotonin syndrome." Dr. Funte testified that the effects of the drug are highly "unpredictable." She explained that although a person "might take the drugs several times and be fine," a single dose can lead to cardiac arrhythmias, muscle tissue breakdown, acute kidney failure, multi-organ system failure, and death. Dr. Funte testified that, even at a "[v]ery low level," the drug can cause "death quite rapidly." She testified that a person cannot "develop a tolerance" to NBOMe, "[s]o on any given day, you don't know whether that drug is going to cause an adverse reaction leading to your death."

¶ 17. On cross-examination, Dr. Funte testified that in August 2014 NBOMe "was in its infancy as something that was showing up certainly around here," although in "other areas including other countries it was known and used." She testified that "[t]here was a statement put out by the DEA making it a controlled substance in November 2013." It "certainly [was] not as common as marijuana or cocaine .... But it was not unheard of." This was the first autopsy that Dr. Funte had performed involving a death linked to NBOMe.

¶ 18. At the close of the evidence, the circuit court instructed the jury on the elements of drug trafficking, depraved-heart murder, and the lesser-included offense of culpable-negligence manslaughter. The jury found O'Kelly guilty of drug trafficking and depraved-heart murder. The court sentenced O'Kelly to serve ten years in MDOC custody for drug trafficking and twenty years in MDOC custody for depraved-heart murder, with the sentences to run concurrently. O'Kelly filed a timely motion for judgment notwithstanding the verdict or a new trial, which was denied, and a timely notice of appeal.

ANALYSIS

¶ 19. On appeal, O'Kelly raises three issues: (1) "whether the State proved all the elements of ... drug trafficking beyond a reasonable doubt, and/or whether the verdict ... was against the overwhelming weight of the evidence"; (2) "whether the State proved all the elements of ... depraved-heart murder beyond a reasonable doubt, and/or whether the verdict ... was against the overwhelming weight of the evidence"; and (3) whether the circuit court erred by denying his pretrial motion to suppress statements that he made to police. In the last section of his brief, O'Kelly briefly discusses four other alleged trial errors. We address O'Kelly's arguments in turn below.

I. Drug Trafficking

¶ 20. "The ... test for sufficiency of the evidence is familiar." Lenoir v. State , 222 So.3d 273, 278 (¶ 25) (Miss. 2017) (quoting Poole v. State , 46 So.3d 290, 293 (¶ 20) (Miss. 2010) ). "When this Court reviews the sufficiency of evidence supporting a guilty verdict, we view the evidence in the light most favorable to the State and decide if rational jurors could have found the State proved each element of the crime." Id. at 279 (¶ 25). "We are not required to decide-and in fact we must refrain from deciding -whether we think the State proved the elements." Id. (quoting Poole , 46 So.3d at 293-94 (¶ 20) ). "Rather, we must decide whether a reasonable juror could rationally say that the State did." Id. (quoting Poole , 46 So.3d at 294 (¶ 20) ).

¶ 21. When we review the denial of a motion for a new trial, we similarly consider "the evidence in the light most favorable to the verdict," and we will not reverse unless the "verdict ... is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Little v. State , 233 So.3d 288, 292 (¶ 21) (Miss. 2017). As an appellate court, "[w]e do not make independent resolutions of conflicting evidence. Nor do we reweigh the evidence or make witness-credibility determinations."

Id. at (¶ 20) (citation omitted). "Instead, when the evidence is conflicting, the jury will be the sole judge of the credibility of witnesses and the weight and worth of their testimony." Id. (quotation marks omitted). We review the trial judge's denial of a motion for a new trial for abuse of discretion. Id. at (¶ 21).

¶ 22. On the charge of "trafficking in a controlled substance," the State was required to prove beyond a reasonable doubt that O'Kelly possessed forty or more dosage units of NBOMe with the intent to sell, barter, transfer, or dispense the drugs to another person. See Miss. Code Ann. § 41-29-139(f)(2)(A). O'Kelly argues that the State failed to prove (1) that he intended to distribute the drugs or (2) that he possessed forty or more dosage units. Both arguments are without merit.

¶ 23. The first argument is based on O'Kelly's testimony that he and Rodenbaugh intended to split the cost of the NBOMe and keep it for their own personal use. According to O'Kelly, Rodenbaugh "said he'd go in half." However, in his initial statement to the police, O'Kelly indicated that he alone purchased the drugs and was willing to sell hits for $10 apiece. O'Kelly's statement did not mention any sort of sharing arrangement, and he clearly stated that he gave Rodenbaugh two hits in exchange for a later payment of $20.

¶ 24. Moreover, "it is not necessary for the transferor to make a profit or that there be consideration for the transaction to constitute a transfer or distribution under the statute." White v. State , 842 So.2d 565, 576 (¶ 33) (Miss. 2003) (emphasis added). "A 'transfer' under the statute for the delivery and transfer of narcotics is a change of possession from one person to another." Johnson v. State , 194 So.3d 191, 197 (¶ 10) (Miss. Ct. App. 2016) (citing White , 842 So.2d at 576 (¶ 32) ). "To establish the defendant's intent to transfer within the meaning of the statute, all that is required is proof of the defendant's intent to relinquish possession and control." Id. "The purpose of the statute is to thwart the exchange or transfer of the substance regardless of whether there was consideration for it." Id. Thus, even a simple plan to "share" one's drugs with others is sufficient to demonstrate an intent to distribute. Id. at (¶ 11). Therefore, O'Kelly's testimony at trial-that he intended to transfer half of his purchase to Rodenbaugh-was also sufficient to establish an intent to distribute. O'Kelly also admitted that he transferred drugs to Daylin on at least two occasions.

¶ 25. Finally, "a jury may reasonably conclude that a defendant intended to unlawfully distribute a controlled substance, if the quantity or nature of the seized substance evidences an intent to distribute-as opposed to an intent to merely possess for personal use." Taylor v. State , 656 So.2d 104, 108 (Miss. 1995). O'Kelly possessed enough NBOMe to "trip" up to 425 times, depending on the number of hits taken. Based on O'Kelly's statements to police and testimony at trial, the jury reasonably could infer that such a quantity was not intended solely for his own personal use. Accordingly, there was sufficient evidence for the jury to find that O'Kelly possessed the NBOMe with the intent to distribute.

¶ 26. O'Kelly next argues that the State failed to prove that he possessed a sufficient quantity of NBOMe because the State tested only eight of the approximately 425 perforated squares found in his apartment. Claudette Gilman, a forensic chemist, testified that she selected eight random squares to test, and all eight contained 25B-NBOMe. O'Kelly argues that this evidence was insufficient because the trafficking statute requires proof of forty dosage units. Miss. Code Ann. § 41-29-139(f)(2)(A).

¶ 27. This Court addressed a similar argument in Fay v. State , 133 So.3d 841, 844-45 (¶¶ 7-11) (Miss. Ct. App. 2013), cert. denied , 133 So. 3d 818 (Miss. 2014). Fay argued that the evidence was insufficient to convict him of possession of between 0.1 gram and two grams of methadone because the forensic chemist only tested one of several pill fragments from a bag found in Fay's pocket. See id. at 844 (¶ 8). However, this Court held that "a forensic chemist is generally not required to test all of the suspected narcotic substance to opine that the recovered substance as a whole contains narcotics." Id. at 844-45 (¶ 9) (quoting People v. Adair , 940 N.E.2d 292, 295 (Ill. App. Ct. 2010) ) (brackets omitted). Rather, "random testing is permissible when the seized samples are sufficiently homogeneous so that one may infer beyond a reasonable doubt that the untested samples contain the same substance as those that are conclusively tested." Id. at 845 (¶ 9) (quoting Adair , 940 N.E.2d at 295 ) (brackets omitted). In Fay , we held that "it was not necessary for [the chemist] to test every pill fragment" because the pill fragments were all the same color and bore the same marking. Id. at (¶ 11). We concluded that "[b]ased on the relatively homogenous nature of the pill fragments," there was sufficient evidence for the jury to conclude that Fay possessed between 0.1 grams and two grams of methadone. Id.

¶ 28. The result is the same here. The perforated squares at issue were contained on only two sheets. Gilman testified that she randomly selected eight squares for testing, all of which tested positive for NBOMe. There is nothing in the record to suggest that the approximately 417 squares not tested were different in kind from the eight that were tested. Furthermore, based on Dr. Funte's autopsy, the two hits that O'Kelly transferred to Rodenbaugh clearly contained NBOMe. It is also reasonable to infer that the hits that O'Kelly and Daylin took contained NBOMe. Finally, we note that O'Kelly himself told police officers and testified at trial that he purchased 450 hits of NBOMe. Based on Gilman's testimony and O'Kelly's admissions, we hold that the evidence was sufficient for a rational juror to find beyond a reasonable doubt that O'Kelly possessed at least forty dosage units of NBOMe with the intent to distribute. We also conclude that the trial judge did not abuse his discretion by denying O'Kelly's motion for a new trial on the drug trafficking charge.

II. Depraved-Heart Murder

¶ 29. O'Kelly next challenges the sufficiency of the evidence to support the conviction for depraved-heart murder. Depraved-heart murder, now classified as second-degree murder, is defined as "[t]he killing of a human being without the authority of law ... in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual ...." Miss. Code Ann. § 97-3-19(1)(b). "The Supreme Court has described conduct 'evincing a depraved heart' as 'grave recklessness manifesting utter disregard or indifference to a resultant creation of eminent danger to human life.' " McCarty v. State , 247 So.3d 260, 269 (¶ 27) (Miss. Ct. App. 2017) (brackets omitted) (quoting Windham v. State , 602 So.2d 798, 802 (Miss. 1992) ), cert. denied , 246 So.3d 885 (Miss. 2018).

¶ 30. The jury in this case also was instructed on the lesser-included offense of culpable-negligence manslaughter. See Shumpert v. State , 935 So.2d 962, 965-68 (¶¶ 7-17) (Miss. 2006) (recognizing that culpable-negligence manslaughter is a lesser-included offense of depraved-heart murder). Under the "direct remand rule," if we concluded that the evidence was insufficient to prove murder but sufficient to prove manslaughter, we would remand the case and direct the circuit court to sentence the defendant on the lesser-included offense of manslaughter. See Shields v. State , 722 So.2d 584, 585-86 (¶¶ 7-11) (Miss. 1998) ; Hull v. State , 174 So.3d 887, 897 (¶ 28) & n.3 (Miss. Ct. App. 2015).

¶ 31. Culpable-negligence manslaughter is the "killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law." Miss. Code Ann. § 97-3-47 (Rev. 2014). Our Supreme Court has defined "culpable negligence" as "negligence of a degree so gross as to be tantamount to a wanton disregard, or utter indifference to, the safety of human life." McCarty , 247 So.3d at 269 (¶ 29) (quoting Hawkins v. State, 101 So.3d 638, 643 (¶ 17) (Miss. 2012) ). "Depraved-heart murder and culpable negligence manslaughter are distinguishable simply by degree of mental state of culpability. In short, depraved-heart murder involves a higher degree of recklessness from which malice may be implied." Hawkins , 101 So.3d at 643 (¶ 17).

¶ 32. We conclude that the evidence at trial was insufficient to establish either depraved-heart murder or culpable-negligence manslaughter. As discussed above, O'Kelly testified that he and Rodenbaugh had taken NBOMe together previously. Rodenbaugh's roommates also testified that they knew that Rodenbaugh had taken "acid" on prior occasions. In addition, O'Kelly testified that, prior to August 9, 2014, he and Daylin had both taken hits from the same sheets at issue in this case. There is no evidence that O'Kelly, Rodenbaugh, or Daylin had experienced any adverse effects when using NBOMe previously, and O'Kelly testified that he did not know that NBOMe was dangerous. Indeed, on the night in question, O'Kelly himself took the same number of hits as Rodenbaugh.

¶ 33. Dr. Funte testified at trial that "NBOMe is incredibly potent" and "has been linked to death at very, very low levels of the drug." She also testified that the drug is highly unpredictable so that a single dose can cause death in a short period of time. She further testified that a person cannot "develop a tolerance" to NBOMe, so a person's past experience with the drug is not a good indicator of its potential to cause harm.

¶ 34. However, Dr. Funte also testified that in August 2014 NBOMe "was in its infancy as something that was showing up certainly around here," although in "other areas including other countries it was known and used." She testified that "[t]here was a statement put out by the DEA making it a controlled substance in November 2013." This was the first autopsy that Dr. Funte had performed involving a death linked to NBOMe.

¶ 35. The case was submitted to the jury on the theory that O'Kelly committed depraved-heart murder by "selling [Rodenbaugh] the controlled substance 25B-NBOMe." Similarly, the instruction on culpable-negligence manslaughter required a finding that O'Kelly acted "with culpable negligence ... by selling/bartering/transferring/distributing/dispensing to [Rodenbaugh] the controlled substance 25B-NBOMe." It is important to note that the jury was not instructed that it could find O'Kelly guilty of murder or manslaughter for failing to seek medical aid after Rodenbaugh began experiencing adverse effects from the drug. Thus, the narrow issue before this Court is whether, based on the evidence at trial, O'Kelly's singular act of selling or giving Rodenbaugh two hits of NBOMe rises to the level of depraved-heart murder or culpable-negligence manslaughter.

¶ 36. The Kentucky Supreme Court addressed similar facts and issues in Lofthouse v. Commonwealth , 13 S.W.3d 236 (Ky. 2000). There, the defendant (Lofthouse) "admitted that he furnished the cocaine and heroin to Buford while visiting in Buford's home on the night in question." Id. at 237. "[Lofthouse] and Buford had 'shot' cocaine together on previous occasions without life-threatening results." Id. at 237-38. "[Lofthouse] had obtained the cocaine and heroin from his regular drug supplier, who sold him the cocaine, but gave him the heroin as 'something new' [to] try." Id. at 238. "[Lofthouse] had, himself, ingested some of the heroin prior to the night of Buford's death." Id. On the night in question, Lofthouse and Buford both drank beer and injected themselves with cocaine and heroin. Id. "Buford told [Lofthouse] that he had seen heroin before and knew what it was." Id. However, after several hours of drinking and drug use, Buford lost consciousness and died from the toxic effects of the drugs and alcohol. Id.

¶ 37. A jury found Lofthouse guilty of "reckless homicide," which under Kentucky law "required proof beyond a reasonable doubt that there was a substantial and unjustifiable risk that Buford would die if he ingested the cocaine and heroin furnished to him by [Lofthouse], and that the risk of Buford's death was of such nature and degree that [Lofthouse's] failure to perceive it constituted a gross deviation from the standard of care that a reasonable person would observe in the situation." Id. at 241. However, the Kentucky Supreme Court reversed and rendered the conviction. Id. at 242. The court rejected Lofthouse's argument "that furnishing controlled substances to one who subsequently dies from their ingestion can never support a conviction of criminal homicide"; however, the court also rejected the state's argument that the provision of controlled substances to a person who thereafter dies "will always support a conviction." Id. Instead, the court held that such a case, "like any other," "depends on the proof." Id. The court held that to obtain a conviction, the state must prove beyond a reasonable doubt "that a layperson, such as [Lofthouse], should reasonably have known that there was a substantial risk that the amount of cocaine and heroin ingested by Buford would result in his death." Id. The court further stated: "That is especially true where, as here, [Lofthouse] did not directly cause the victim's death, but only furnished the means by which the victim caused his own death." Id.

¶ 38. The court went on to hold that the evidence was insufficient to convict Lofthouse despite evidence that the quantities of heroin found in Buford "could be fatal." Id. The court explained its conclusion as follows:

[T]here was no proof that [Lofthouse] or any other layperson should have been aware that there was a substantial risk that Buford would die from ingesting those substances, or that [Lofthouse's] failure to perceive that risk constituted a gross deviation from the standard of care that a reasonable person would observe in the situation. Such information is not "common knowledge." On the other hand, there was evidence that heroin was "something new" to [Lofthouse]; that he, himself, had previously ingested dosages of both the cocaine and the heroin in question without a fatal result; and that he, himself, ingested the same dosages of cocaine and heroin as Buford on the same occasion, yet remained coherent enough to assist in efforts to save Buford's life. The Commonwealth proved only that the dosages were fatal to Buford. That alone was insufficient to convict [Lofthouse] of reckless homicide.

Id. at 241-42.

¶ 39. The facts of this case are similar to Lofthouse . O'Kelly and Rodenbaugh had both taken NBOMe and similar drugs on prior occasions without any adverse effects. Moreover, O'Kelly "himself[ ] ingested the same [number of hits] as [Rodenbaugh] on the same occasion, yet remained coherent." Id. O'Kelly's own use of NBOMe shows that he did not perceive that it posed any substantial or imminent risk of death. Dr. Funte testified that "NBOMe is incredibly potent" and "has been linked to death at very, very low levels of the drug." She also testified that its effects are highly "unpredictable." However, she also agreed that NBOMe was a relatively new drug in August 2014. There was no evidence the drug's dangers were "common knowledge" in August 2014. Id. As in Lofthouse , "there was no proof that [O'Kelly] or any other layperson should have been aware that there was a substantial risk that [Rodenbaugh] would die from ingesting [NBOMe]." Id.

¶ 40. The Kentucky Supreme Court's opinion addressing similar facts and issues in Lofthouse is persuasive. We likewise conclude that, based on the evidence admitted at trial, O'Kelly's singular act of selling or giving Rodenbaugh two hits of NBOMe is insufficient to demonstrate either "grave recklessness manifesting utter disregard or indifference to a resultant creation of eminent danger to human life"

(depraved-heart murder) or "negligence of a degree so gross as to be tantamount to a wanton disregard, or utter indifference to, the safety of human life" (culpable-negligence manslaughter). McCarty , 247 So.3d at 269 (¶¶ 27, 29). Therefore, we reverse and render a judgment of acquittal on Count II of the indictment.

III. Motion to Suppress

¶ 41. As described above, O'Kelly spoke to Lieutenant Word at his apartment and again at the police station. Lieutenant Word testified that he advised O'Kelly of his Miranda rights prior to those statements, and O'Kelly agreed to talk. In addition, Detective Bill Lott interviewed O'Kelly at the police station after obtaining a signed Miranda waiver. O'Kelly's interviews at the police station were videotaped. O'Kelly also signed a written statement following his interview with Lott, which was admitted into evidence at trial.

¶ 42. Prior to trial, O'Kelly filed a two-page motion to suppress "any and all statements, admissions, and/or purported confessions whether oral, written or otherwise recorded made by [him] to law enforcement officers ... while in custody." He also moved to suppress "any and all evidence obtained as a result of [his] illegal interrogation." O'Kelly argued that he did not knowingly, voluntarily, and intelligently waive his Miranda rights because he was under the influence of drugs and alcohol, had been up for over eighteen hours without sleep, and had just been informed of his friend's death.

¶ 43. At the pretrial suppression hearing, Word testified that he advised O'Kelly of his rights at the very beginning of their conversation at the apartment. A second officer-Taylor Wells-who was present at the apartment corroborated Word's testimony. Word and Wells both testified that O'Kelly did not appear to be under the influence of drugs or alcohol, that his speech was normal, and that he was lucid and coherent. Both testified that O'Kelly appeared to understand his rights and that his statements were made voluntarily, without any threats or coercion. Word also testified that O'Kelly was not in custody at the outset of their conversation.

¶ 44. Detective Lott also testified that O'Kelly did not appear to be under the influence at the police station, that his speech was normal, and that his statements were lucid. Lott testified that O'Kelly signed the Miranda waiver voluntarily.

¶ 45. O'Kelly did not testify at the suppression hearing. The trial judge denied the motion to suppress, finding that O'Kelly's Miranda waivers and subsequent oral and written statements were knowingly, voluntarily, and intelligently given.

¶ 46. On appeal, O'Kelly makes a somewhat different and narrower argument than he did in the circuit court. His two-paragraph appellate argument cites no authority and focuses entirely on statements that he made to Lieutenant Word at his apartment. He argues that he "was high on drugs," "had just been told that [Rodenbaugh] had died," and later "had no recollection of receiving a Miranda warning." O'Kelly acknowledges that at the police station he "was read his rights, asked if he understood his rights, and then signed a [written waiver]." But he argues this was "too late as the damage had already been done."

¶ 47. O'Kelly's argument on appeal is without merit for several reasons. First, he cites no legal authority and fails to develop the argument. See Summerall v. State , 734 So.2d 242, 246 (¶ 20) (Miss. Ct. App. 1999) ("Failure to cite to legal authority bars any consideration of the assigned error."). Second, because O'Kelly did not testify at the suppression hearing, there was no evidence before the trial judge that O'Kelly was still "high on drugs" or did not recall receiving a Miranda warning. See, e.g. , Moffett v. State , 49 So.3d 1073, 1101 (¶ 91) (Miss. 2010) ("We will not hold a trial court in error on appeal for a matter not presented to it for decision." (internal quotation marks omitted) ). Third, the testimony of Word and Wells is substantial evidence that supports the trial judge's finding that O'Kelly's waiver and subsequent statements were given knowingly, voluntarily, and intelligently. See Holland v. State , 587 So.2d 848, 860 (Miss. 1991) (holding that a trial judge's finding that a waiver was knowing, voluntary, and intelligent must be affirmed if it was "based ... upon appropriate principles of law" and "is supported by ... substantial evidence"). This is particularly true since O'Kelly presented no countervailing evidence at the suppression hearing.

¶ 48. In addition, O'Kelly fails to address the admissibility of his subsequent oral and written statements at the police station, which provided more detail and more incriminating information than his initial statements to Word at the apartment. Any challenge to those subsequent statements would raise different legal issues, which O'Kelly's appellate briefs simply do not address. In the absence of any challenge to O'Kelly's subsequent statements, we cannot say that O'Kelly was prejudiced by the admission of his statements to Word at the apartment.

¶ 49. In summary, there is substantial evidence to support the trial judge's decision denying the motion to suppress, and this issue is without merit.

IV. Additional Issues

¶ 50. In the last section of his brief, under the heading "Statement of Additional Grounds on Appeal," O'Kelly asserts that "there are several additional grounds which support a reversal and remand of this case." He then briefly discusses four alleged trial errors. However, he cites no authority, and these alleged errors are not listed in his statement of issues. The State argues that these issues are waived as a result. See, e.g. , Reed v. State , 987 So.2d 1054, 1056 (¶ 8) (Miss. Ct. App. 2008) (declining to address issues not listed in the appellant's statement of issues); Summerall , 734 So.2d at 246 (¶ 20) ("Failure to cite to legal authority bars any consideration of the assigned error.").

¶ 51. We conclude that it is unnecessary to address these issues because all involve evidence (either admitted or excluded) or arguments of counsel that relate to O'Kelly's conviction for murder, which we reverse and render. We cannot see that any of the alleged errors contributed to O'Kelly's conviction for drug trafficking.

¶ 52. However, we will briefly discuss one of these issues to address some apparent confusion. O'Kelly argues that the circuit court erroneously admitted a November 15, 2013 DEA press release announcing that NBOMe had been listed as a Schedule I controlled substance. See supra n.1. However, the press release was not admitted into evidence. At trial, the State attempted to introduce the November 2013 DEA final order or a related press release. The State argued that the order was relevant because it reported that NBOMe had been implicated in seventeen deaths, including fourteen from acute toxicity. However, O'Kelly objected on relevance grounds, and the circuit court sustained the objection. The State subsequently asked the court to reconsider, but the court adhered to its prior ruling.

¶ 53. On cross-examination, the State asked O'Kelly whether he was aware that seventeen deaths had been attributed to NBOMe. O'Kelly's counsel objected, but the circuit court overruled his objections, mistakenly stating that a "[p]revious witness ... testified to that." Presumably, the court was referring to Dr. Funte, but Dr. Funte only testified that the DEA made NBOMe a controlled substance in November 2013. She did not testify about the contents of the DEA order or that any specific number of deaths had been linked to NBOMe. O'Kelly answered that he was not aware of any reported deaths from NBOMe.

¶ 54. Finally, in closing argument, the State argued that in November 2013 the DEA reported that there had been "nineteen deaths" linked to NBOMe. O'Kelly's counsel objected and moved for a mistrial, arguing that the State was "reading something not in evidence." The court sustained the objection but denied the motion for a mistrial. The State then repeated that "nineteen deaths" had been linked to NBOMe by November 2013.

¶ 55. "[Q]uestions asked by lawyers [are] not evidence-only the answers given by witnesses." May v. State , 460 So.2d 778, 783 (Miss. 1984). Therefore, the questions that O'Kelly was asked on cross-examination had no evidentiary value. Likewise, "arguments of counsel are not evidence." One 1970 Mercury Cougar v. Tunica Cty. , 115 So.3d 792, 796 (¶ 20) (Miss. 2013). Thus, there was no competent evidence of the contents of the November 2013 DEA order or the number of deaths that had been attributed to NBOMe-only that the DEA had designated NBOMe as a controlled substance.

¶ 56. As stated above, because we reverse and render O'Kelly's conviction for depraved-heart murder, we need not address his other "additional grounds on appeal."

V. Resentencing

¶ 57. "[W]hen a defendant is convicted of more than one count of a multicount indictment, the [circuit] court is likely to fashion a sentencing package in which sentences on individual counts are interdependent." Sallie v. State , 237 So.3d 749, 756-57 (¶ 29) (Miss. 2018) (quoting United States v. Shue , 825 F.2d 1111, 1114 (7th Cir. 1987) ). "[B]ecause the sentences are interdependent, reversal of convictions underlying some, but not all, of the sentences renders the sentencing package ineffective in carrying out the [circuit] court's sentencing intent as to any one of the sentences on the affirmed convictions." Id. at 757 (¶ 29) (quoting Shue , 825 F.2d at 1114 ). " '[A]fter an appellate court unwraps' the original sentencing package by removing 'one or more charges from its confines, ... common sense dictates that the judge should be free to review the efficacy of what remains in light of the original plan,' and be allowed 'to reconstruct the sentencing architecture upon remand, within applicable constitutional and statutory limits, if that appears necessary in order to ensure that the punishment still fits both crime and criminal.' " Id. at 756 (¶ 28) (quoting United States v. Pimienta-Redondo , 874 F.2d 9 (1st Cir. 1989) ).

¶ 58. In this case, the circuit court sentenced O'Kelly to concurrent terms of twenty years in MDOC custody for depraved-heart murder and ten years in MDOC custody for drug trafficking. Under the drug trafficking statute, the court could have imposed a longer sentence. See Miss. Code Ann. § 41-29-139(f). As our Supreme Court reasoned in Sallie , it is possible that the circuit court's original sentence for drug trafficking was influenced by the murder sentence that the court imposed the same day. O'Kelly's conviction and sentence for murder now stand reversed. The Supreme Court's opinion in Sallie makes clear that in this situation the proper course is to remand the case to the circuit court for resentencing on the remaining conviction for drug trafficking. See Sallie , 237 So.3d at 755-57 (¶¶ 26-30). Therefore, pursuant to Sallie , we remand the case to the circuit court for resentencing.

CONCLUSION

¶ 59. We affirm O'Kelly's conviction for trafficking in a controlled substance. We reverse and render a judgment of acquittal on Count II of the indictment, charging depraved-heart murder, because there is insufficient evidence to support that charge or the lesser-included offense of culpable-negligence manslaughter. We remand the case for resentencing on the charge of trafficking in a controlled substance.

¶ 60. AFFIRMED IN PART; REVERSED AND RENDERED IN PART; REMANDED.

IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, WESTBROOKS AND TINDELL, JJ., CONCUR. LEE, C.J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J., WESTBROOKS AND TINDELL, JJ. CARLTON, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. GREENLEE, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.

LEE, C.J., SPECIALLY CONCURRING:

¶ 61. I agree with the majority that the evidence is insufficient to support O'Kelly's conviction for depraved-heart murder, and therefore, should be reversed.

¶ 62. I write separately to express that I disagree, however, that where we have affirmed O'Kelly's conviction for trafficking in a controlled substance, the case should be remanded for resentencing on the trafficking conviction. I recognize that the majority correctly relies on the Mississippi Supreme Court's recent decision in Sallie v. State , 237 So.3d 749 (Miss. 2018), for its course in remanding the case for resentencing on the trafficking conviction. But, for the same reasons I dissented in Sallie v. State , 237 So.3d 758, 762 (¶ 11) (Miss. Ct. App. 2016), I am again compelled to state my concerns that this presents the circuit court with an opportunity to improperly amend O'Kelly's sentence on his affirmed trafficking conviction.

¶ 63. Our caselaw has long held that, "Once a circuit or county court exercises its option to impose a definite sentence it cannot subsequently set that sentence aside and impose a greater sentence," as "such alterations are improper." Eastman v. State , 909 So.2d 171, 173 (¶ 10) (Miss. Ct. App. 2005). But this new course, as permitted by the supreme court's decision in Sallie , gives the circuit court the opportunity to do just that. I fundamentally disagree that where an appellate court has found one conviction or sentence improper, we should disrupt that which was not found improper. Just as when "a case is affirmed on appeal, the lower court is issued a mandate to perform purely ministerial acts in carrying out the original sentence[ ]" so also should it be where an individual conviction is affirmed on appeal. Sallie, 237 So.3d at 753-54 (¶ 18). Accordingly, I would find that in the instant case, the circuit court should only perform the ministerial act of rendering a judgment of acquittal on O'Kelly's depraved-heart-murder conviction and imposing the original sentence as to his trafficking conviction.

¶ 64. Sallie 's holding gives way to punish a defendant who prevails in part on appeal by exposing him to a greater sentence than he originally incurred-even for the conviction that was affirmed. Despite his success, the circuit court may still exact "one pound of flesh," except in this instance-maybe more, maybe less. For these reasons, I specially concur.

IRVING, P.J., WESTBROOKS AND TINDELL, JJ., JOIN THIS OPINION.

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

¶ 65. I respectfully concur in part and dissent in part from the majority's opinion. I concur with the majority in affirming O'Kelly's conviction for trafficking in a controlled substance. I dissent from the majority's finding that the evidence is insufficient to establish depraved-heart murder. The majority finds that the sufficiency and weight of the evidence fail to support O'Kelly's conviction for depraved-heart murder or the lesser-included offense of culpable-negligence manslaughter, and the majority reverses and renders a judgment of acquittal on that count. Because I submit that the evidence presented at trial sufficiently supports O'Kelly's conviction for depraved-heart murder, then, in keeping in mind our standard of review, I would affirm O'Kelly's conviction and sentence. See Gary v. State , 237 So.3d 140, 147-48 (¶¶ 35, 38) (Miss. 2018).

¶ 66. The Mississippi Supreme Court has recognized a broad interpretation of depraved-heart murder. Clayton v. State , 652 So.2d 720, 726 (Miss. 1995) (citing Mallett v. State , 606 So.2d 1092 (Miss. 1992) and Windham v. State , 602 So.2d 798 (Miss. 1992) ). Additionally, depraved-heart murder is defined by Mississippi Code Annotated section 97-3-19(1)(b) (Rev. 2014) as the following:

(1) The killing of a human being without the authority of law by any means or in any manner shall be murder ...
....
(b) [w]hen done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual....

¶ 67. The record reflects that the State presented sufficient evidence as to the essential elements of depraved-heart murder. The supreme court has described conduct evincing a depraved heart as "grave recklessness manifesting utter disregard or indifference to the resultant creation of eminent danger to ... [human] life." Windham , 602 So.2d at 802. As stated in the plain language of the statute, no premeditated design to effect the death of any particular individual is required. In viewing the evidence in the light most favorable to the State, the record shows that rational jurors could have found the State proved each element of the crime.

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

¶ 68. I join the majority in affirming O'Kelly's conviction for trafficking in a controlled substance and in finding the evidence insufficient to establish depraved-heart murder. But I dissent to the extent the majority finds the evidence insufficient to establish culpable-negligence manslaughter.

¶ 69. In this case, the jury convicted O'Kelly of depraved-heart murder and therefore implicitly found him guilty of the lesser-included offense of culpable-negligence manslaughter. Shields v. State , 722 So.2d 584, 587 (¶ 7) (Miss. 1998) ("[G]uilt of a true lesser[-]included offense is implicitly found in the jury's verdict of guilt on the greater offense."). Culpable-negligence manslaughter is the "killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law." Miss. Code Ann. § 97-3-47 (Rev. 2014). It is distinguishable from depraved-heart murder "simply by degree of mental state of culpability." Hawkins v. State , 101 So.3d 638, 643 (¶ 17) (Miss. 2012).

¶ 70. At the time O'Kelly gave NBOMe to Rodenbaugh, it had been on the federal Drug Enforcement Administration's and Mississippi's lists of controlled substances. Expert testimony indicated that NBOMe is incredibly potent, has been linked to death at very low levels, and can cause death in a short period of time. In addition, users of NBOMe cannot develop a tolerance to it, and it is impossible to predict which concentration of the drug could result in death. Given the properties of this drug and its illicit procurement, a reasonable juror could find that O'Kelly's act of giving it to Rodenbaugh was "negligence of a degree so gross as to be tantamount to a wanton disregard, or utter indifference to, the safety of human life." McCarty v. State , 247 So.3d 260, 269 (¶ 29) (Miss. Ct. App. 2017).

¶ 71. Because the jury's verdict encompassed a finding of guilt as to the lesser-included offense of culpable-negligence manslaughter, I would remand this case to the trial court for resentencing on only culpable-negligence manslaughter. Alternatively, as the majority seems to determine that the verdict "is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice," the proper remedy would be to grant a new trial on the basis of culpable-negligence manslaughter. Little v. State , 233 So.3d 288, 292 (¶ 21) (Miss. 2017). I therefore respectfully concur in part and dissent in part.

      25B-NBOMe and two similar compounds-25C-NBOMe and 25I-NBOMe-were made Schedule I controlled substances under federal law by order of the Drug Enforcement Administration (DEA) on November 15, 2013. See 78 Fed. Reg. 68,716 (Nov. 15, 2013). The three compounds were added to Schedule I of the Mississippi Uniform Controlled Substances Act effective April 17, 2014. See 2014 Miss. Laws ch. 501, §§ 1 & 3; Miss. Code Ann. § 41-29-113(c)(49)-(51) (Supp. 2017).

      Although the issue is not identified in O'Kelly's statement of issues, O'Kelly also asserts that the jury instruction on the elements of drug trafficking was inconsistent with his indictment. The indictment charged O'Kelly with "traffick[ing] in a controlled substance by unlawfully, willfully, and feloniously[ ] possessing 25-NBOMe, in an amount greater than 40 dosage units, in violation of [section] 41-29-139." The indictment clearly charged drug trafficking and specifically referenced subsection 41-29-139(f). The statute makes clear that, as relevant in this case, trafficking in a controlled substance means possession of more than forty dosage units with the intent to distribute. See Miss. Code Ann. §§ 41-29-139(f)(2)(A), 41-29-139(a). Moreover, the jury instruction correctly set out the elements of the crime: possession of forty or more dosage units with the intent to distribute. There is no merit to O'Kelly's claim that the instruction was defective.

      See, e.g. , State v. Morgan , 86 Wash.App. 74, 936 P.2d 20, 23 (1997) (affirming conviction for manslaughter based on the defendant assisted or enabled the decedent's drug use and then failed to seek medical help when she overdosed); People v. Oliver , 210 Cal. App. 3d 138, 149, 258 Cal.Rptr. 138 (Cal. Ct. App. 1989) (similar).

      The court reversed Lofthouse's conviction by a 5-1 vote. The opinion discussed in the text was a three-justice plurality opinion. Two justices would have gone further and held that the act of providing drugs to another could never be considered reckless homicide. See id. at 243-44 (Stumbo, J., concurring).

      The court distinguished cases from other states in which "there was evidence that another of [a] defendant's customers had died the same way two weeks earlier," the "defendant knew that the heroin sold to the victim was 'uncut' and dangerous because it had not been diluted," or "the defendant injected the victim with heroin after she was already 'bombed out' on depressants and," by his own admission, "was aware of the substantial possibility that the injection would cause the victim's death." Id. at 241 (distinguishing State v. Randolph , 676 S.W.2d 943 (Tenn. 1984), and People v. Cruciani , 36 N.Y.2d 304, 367 N.Y.S.2d 758, 327 N.E.2d 803 (1975) ).

      O'Kelly's brief mistakenly states that the release was dated November 15, 2014.

      The State does not challenge the circuit court's ruling on appeal, so the issue is not before this Court. See Burks v. United States , 437 U.S. 1, 5 n.4, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) ("There is no claim in this case that the trial court committed error by excluding prosecution evidence which, if received, would have rebutted any claim of evidentiary insufficiency.").

      William Shakespeare, The Merchant of Venice , act 4, sc. 2.

      "When reviewing the sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 147 (¶ 35) (internal quotation mark omitted). When reviewing the weight of the evidence, "we weigh the evidence in the light most favorable to the verdict, only disturbing a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Id. at 147-48 (¶ 38) (internal quotation mark omitted).

      By statute, manslaughter is a lesser-included offense of murder. See Miss. Code Ann. § 97-3-19 (Rev. 2014).