author: COLEMAN, JUSTICE, FOR THE COURT:

text:
    BELMONT HOLDING, LLC v. DAVIS MONUMENTS, LLC and Jason Davis, Individually
    NO. 2017-CA-01249-SCT
    Supreme Court of Mississippi.
    September 13, 2018
    ATTORNEYS FOR APPELLANT: JOSEPH R. TRAMUTA, RUSSELL S. GILL, BILOXI
    ATTORNEY FOR APPELLEES: W. HARVEY BARTON, PASCAGOULA
    EN BANC.
   COLEMAN, JUSTICE, FOR THE COURT:

¶ 1. The present appeal stems from a circuit court's judgment dismissing an appeal from county court for lack of appellate jurisdiction. Discerning no error, we affirm.

STATEMENT OF THE CASE

¶ 2. Belmont Holding, LLC, filed a complaint in replevin in the County Court of Jackson County against Davis Monuments, LLC, and Jason Davis, individually. The case proceeded to trial. The county court denied the replevin and entered a final judgment. Aggrieved by the county court's final judgment, Belmont filed a notice of appeal within thirty days of the final judgment. However, Belmont did not pay the cost bond within thirty days of the final judgment as required by Mississippi Code Section 11-51-79 (Rev. 2012).

¶ 3. The Circuit Court of Jackson County, sitting as an appellate court, dismissed Belmont's appeal for lack of appellate jurisdiction because Belmont had failed to pay the cost bond within thirty days of the county court's final judgment as required by Section 11-51-79. Belmont appeals, arguing that the circuit court had appellate jurisdiction.

¶ 4. The overarching issue before the Court is whether the circuit court lacked appellate jurisdiction because Belmont had failed to pay the cost bond within the time period prescribed in Section 11-51-79. Because the circuit court lacked appellate jurisdiction due to Belmont's failure, we affirm the circuit court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 5. The pertinent procedural history and facts are not disputed. On March 8, 2016, Belmont filed a complaint in replevin against Davis in county court. Davis filed a counterclaim, and the case proceeded to a bench trial on March 28, 2016. On April 5, 2016, the county court entered an order denying the replevin, directing that Belmont immediately return certain property, and dismissing the case with prejudice. On April 12, 2016, Belmont filed a motion to alter or amend the judgment under Rule 59 of the Mississippi Rules of Civil Procedure. Belmont requested that the county court issue findings of fact and conclusions of law. On April 28, 2016, the county court entered a final judgment with findings of fact and conclusions of law. Again, the county court denied the replevin and ordered Belmont to restore certain property to Davis.

¶ 6. On May 24, 2016, Belmont filed a notice of appeal. On May 26, 2016, the circuit clerk issued its estimated costs for appeal, which was $374. On the same day, the official court reporter issued its estimated cost for preparing the trial transcript, which was $38. According to Belmont, it paid the cost bond between June 8, 2016, and June 16, 2016. On June 21, 2016, Belmont filed a certificate of compliance. On June 24, 2016, the circuit clerk entered a notation on the docket that $374 had been paid by reference to Belmont's check # 1058.

¶ 7. On March 8, 2017, Belmont filed its brief in support of its appeal. On May 1, 2017, Davis filed a motion to dismiss the appeal for lack of jurisdiction because Belmont had failed to pay the cost bond within thirty days of the county court's final judgment. Davis argued that Belmont's failure to pay the appeal bond, i.e. , cost bond, within thirty days was a jurisdictional requirement. A hearing was held on June 13, 2017. At the hearing, Belmont argued that it was unable to pay the cost bond on time because the circuit court did not provide its estimate of cost until May 26, 2016. Davis argued that Belmont had a duty under Section 11-51-79 timely to pay the cost bond, regardless of what the clerk had done.

¶ 8. On June 26, 2017, the circuit court entered an order granting Belmont's motion to dismiss. The circuit court found that Davis's failure to post the cost bond within the statutorily mandated thirty days deprived it of jurisdiction. The circuit court found that Belmont had paid the appeal cost (cost bond), to the circuit clerk on June 24, 2016. The circuit court found in pertinent part that Belmont:

did not file their notice of appeal until May 24, 2016, giving themselves only four days to perfect their appeal by posting a cost bond. By the time the Circuit Clerk provided their estimate, [Belmont] still had two (2) days to pay before time expired. [Belmont] did not pay the Clerk's estimated cost of appeal until almost a month after it was provided, well outside of the statutory period for filing a cost bond. Furthermore, Rule 11 of the Mississippi Rules of Appellate Procedure provide[s] that when an appellant is unable to receive an estimate of cost from the clerk then the appellant should calculate the cost of the appeal "at the statutory rate per page for the approximate number of pages of clerk's papers." As both the filing of an appeal and the posting of a cost bond are what give this Court jurisdiction to hear an appeal from County Court under Miss. Code Ann. [§] 11-51-79, this Court finds that the failure to pay the cost bond within the statutorily mandated thirty (30) days deprives this Court of jurisdiction.

¶ 9. On July 21, 2017, Belmont filed a motion to reinstate the appeal. Belmont argued that it was entitled to a notice of the deficiency of its appeal from the circuit clerk under Mississippi Rule of Appellate Procedure 2(a)(2). Belmont continued that the failure to give it official notice of the deficiency violated its due process rights.

Belmont also argued that Section 11-51-79's requirement of the payment of the cost bond conflicts with Mississippi Rule of Appellate Procedure 3, because Rule 3 provides that timely filing a notice of appeal is the only requirement to perfect an appeal. Belmont argued that, because of the conflict, Rule 3(a) supersedes Section 11-51-79.

¶ 10. On August 18, 2017, the circuit court denied Belmont's motion. The circuit court found that the failure to perfect an appeal by paying a cost bond is not a deficiency as contemplated by Rule 2 of the Mississippi Rules of Appellate Procedure. Belmont appeals, raising the following three issues:

1. Whether the Circuit Court of Jackson County, Mississippi [hereinafter "circuit court"] erred in finding that it lacked jurisdiction to hear Belmont's appeal under Miss. Code Ann. § 11-51-75 as a result of Belmont's failure to pay the [cost] bond within thirty (30) days following the final judgment of the County Court.
2. Whether the circuit court erred in finding that "the failure to perfect an appeal by paying a cost bond is not a 'deficiency' as contemplated by [ M.R.A.P. 2 ]."
3. Whether the circuit court deprived Plaintiff of due process by dismissing its appeal for failure to timely pay the [cost] bond without prior formal notice of the deficiencies in its appeal from the clerk of the circuit court.

¶ 11. The overarching issue before the Court is whether the circuit court erred by determining that it lacked jurisdiction to hear Belmont's appeal because Belmont had failed to pay the cost bond within thirty days of the final judgment entered by the county court. The second and third issues are intertwined and related to the first. As such, the issues will be addressed together.

STANDARD OF REVIEW

¶ 12. A de novo standard of review is applied to questions of law, legal conclusions, and jurisdictional questions. Aladdin Constr. Co. v. John Hancock Life Ins. Co. , 914 So.2d 169, 174 (¶ 8) (Miss. 2005).

DISCUSSION

Whether the circuit court had appellate jurisdiction.

¶ 13. Belmont argues that the circuit court erred by finding that it was deprived of jurisdiction by Belmont's failure to pay the cost bond within the statutorily mandated thirty days because the cost bond prepayment requirement of Section 11-51-79 is superseded by Mississippi Rules of Appellate Procedure 3(a) and 11(b)(1). We disagree for reasons further explained below. In short, the Mississippi Rules of Appellate Procedure do not supersede the jurisdictional requirements of Section 11-51-79. Even if they did, the Section 11-51-79 requirement comports with the applicable procedural rule, Uniform Rule of Circuit and County Court Practice 5.04, which requires that, in order to perfect an appeal from county to circuit court, the costs of the appeal be paid within thirty days of the entry of the judgment being appealed.

¶ 14. Belmont also argues that the circuit court erred by finding that the failure to perfect an appeal by paying a cost bond is not a "deficiency" as contemplated by Rule 2 of the Mississippi Rules of Appellate Procedure, because a "deficiency" under Rule 2 specifically refers to the failure to comply with the Mississippi Rules of Appellate Procedure; and Belmont argues that the payment of a cost bond is governed by Rule 11(b)(1) of the Mississippi Rules of Appellate Procedure. Thus, Belmont argues that the circuit court deprived it of due process by dismissing its appeal for failure timely to pay the cost bond without prior formal notice of the deficiencies in its appeal from the circuit court clerk.

¶ 15. Belmont relies on Van Meter v. Alford , 774 So.2d 430, 432 (¶¶ 1, 3) (Miss. 2000), in support of its argument that appeals from county courts to circuit courts are controlled by the Mississippi Rules of Appellate Procedure. In Van Meter , the case originated in county court, where the jury returned a verdict against Wallace Van Meter and in favor of Bobby Alford. Id. at 431 (¶ 1). A final judgment was entered on June 23, 1998, and, on July 23, 1998, Van Meter filed a notice of appeal and paid the clerk's filing fee. Id. at 431 (¶ 2). On September 2, 1998, Alford filed a motion to dismiss the appeal because Van Meter "had failed to comply with appellate procedure in several ways." Id. Specifically, Van Meter had been delinquent in filing a designation of record, an estimation of costs, and a Rule 11(b)(1) certificate of compliance. Id. at 432 (¶ 6). On September 4, 1998, Van Meter filed a designation of the record, a request for an estimate of costs, and a response to the motion to dismiss. Id. at 432 (¶ 2). The circuit court granted Alford's motion to dismiss Van Meter's appeal. Id.

¶ 16. On appeal, Van Meter argued that, after Alford had filed his motion to dismiss for failure to comply with the rules, he was not given fourteen days to correct the appeal's deficiencies, as required by Rule 2(a)(2) of the Mississippi Rules of Appellate Procedure. Id. at 432 (¶ 3). In response, Alford argued that Rule 2 did not apply to appeals from county court to circuit court. Id. We wrote that Rule 2(a)(2) applies to appeals from county court to circuit court. We also wrote that Rule 2(a)(2)"mandates that, after a motion to dismiss has been filed, the court clerk (the circuit clerk in this instance) officially notify an appellant of deficiencies in his appeal and that the appellant be given fourteen (14) days therefrom to correct any deficiencies." Id. We held that Van Meter therefore was deprived of due process when his appeal was dismissed because he was not given an official notice of deficiencies in his appeal by the circuit clerk. Id. at 432 (¶ 4). We remanded the case to the circuit court with instructions that the appropriate notice be issued to Van Meter informing him of the specific deficiencies in the appeal and giving him fourteen days to cure the deficiencies. Id. at 432 (¶ 5).

¶ 17. In Van Meter , we also addressed whether the dismissal was "an appropriate sanction." Id. at 432-33 (¶¶ 6-10). We recognized that appellants are instructed to file a designation of record and an estimate of costs within seven days after the notice of appeal is filed. Id. at 432 (¶ 6) (citing M.R.A.P. 10(b)(1) ; M.R.A.P. 11(b)(1) ). We also recognized that appellants are instructed to file simultaneously a Rule 11(b)(1) certificate when the estimate of costs is filed. Id. We determined that Van Meter's "deficiencies do not necessarily mandate a dismissal" because Rule 3(a) of the Mississippi Rules of Civil Procedure states that the "[f]ailure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the perfection of the appeal, but is ground only for such action as the [appellate court] deems appropriate, which may include dismissal of the appeal." Id. at 432 (¶ 7).

Based on the evidence in the record, we determined that lesser sanctions may have been more appropriate and instructed the circuit court to consider lesser sanctions on remand. Id. at 433 (¶¶ 11-12).

¶ 18. As noted by Davis, the Van Meter Court did not specifically address the failure to post a cost bond within thirty days as required by Section 11-51-79. In fact, the Van Meter Court did not mention Section 11-51-79 at all in its opinion. As such, jurisdiction was not in question. Indeed, Alford's motion to dismiss Van Meter's appeal was based on his failure to "comply with appellate procedure in several ways." Id. at 431 (¶ 2) (emphasis added). However, to the extent that Van Meter may be interpreted as holding that the bond requirement under Section 11-51-79 is not jurisdictional, but rather a deficiency under Rule 2(a)(2), such an interpretation is incorrect.

¶ 19. Belmont argues that the payment of the cost bond required by Section 11-51-79 is in direct conflict with Mississippi Rule of Appellate Procedure 3(a), which provides that the "[f]ailure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the perfection of the appeal[.]" M.R.A.P. 3(a). Belmont also argues that the payment of the cost bond required by Section 11-51-79 is in direct conflict with Mississippi Rule of Appellate Procedure 11(b)(1), which provides that, "[w]ithin seven (7) days after filing the notice of appeal, the appellant shall estimate the cost of preparation of the record on appeal, including, but not limited to, the cost of the preparation of the transcript, and shall deposit that sum with the clerk of the court whose judgment or order has been appealed." M.R.A.P. 11(b)(1). Belmont argues that Section 11-51-79's cost bond requirement has no force or effect because, under Rule 3 of the Mississippi Rules of Appellate Procedure, "[a]ll statutes, other sets of rules, decisions or orders in conflict with these rules shall be of no further force or effect." M.R.A.P. 3(a).

¶ 20. Belmont's arguments are without merit. "Th[e] Court repeatedly has held that statutory [cost] bonds are jurisdictional - that is, they relate to a court's appellate jurisdiction." 5K Farms, Inc. v. Miss. Dep't of Revenue , 94 So.3d 221, 227 (¶ 22) (Miss. 2012).

¶ 21. "The Mississippi Constitution of 1890 vests in this Court the 'inherent power ... to promulgate procedural rules....' " 5K Farms, Inc. , 94 So.3d at 227 (¶ 22) (quoting Newell v. State , 308 So.2d 71, 76 (Miss. 1975) ). "Th[e] holding rests on the 'fundamental constitutional concept of the separation of powers' defined in Article 1, Sections 1 and 2, and Article 6, Section 144." Id. (quoting Newell , 308 So.2d at 76 ).

¶ 22. In contrast, the Mississippi Constitution of 1890 explicitly empowers the Legislature to set the appellate jurisdiction of circuit courts. Article 6, Section 156, provides: "The circuit court shall have original jurisdiction in all matters civil and criminal in this state not vested by this Constitution in some other court, and such appellate jurisdiction as shall be prescribed by law." Thus, the Legislature establishes appellate jurisdiction, including circuit court appellate jurisdiction. City of Jackson v. Allen , 242 So.3d 8, 15 (¶¶ 26-28) (Miss. 2018). The Mississippi Legislature has prescribed appellate jurisdiction in Mississippi's circuit courts over appeals from county courts in Section 11-51-79.

¶ 23. Section 11-51-79 provides, in pertinent part:

Appeals from the law side of the county court shall be made to the circuit court, and those from the equity side to the chancery court on application made therefor and bond given according to law, except as hereinafter provided. Such appeal shall operate as a supersedeas only when such would be applicable in the case of appeals to the Supreme Court.... Appeals from the county court shall be taken and bond given within thirty (30) days from the date of the entry of the final judgment or decree on the minutes of the court; provided, however, that the county judge may within said thirty (30) days, for good cause shown by affidavit, extend the time, but in no case exceeding sixty (60) days from the date of the said final judgment or decree.

Miss. Code Ann. § 11-51-79. Therefore, under Section 11-51-79, for appeals from county court to circuit court, "the appellant is required to file notice of the appeal and post a bond within thirty days of the entry of the judgment." T. Jackson Lyons & Assocs., P.A. , 87 So.3d at 449 (¶ 15). The bond required for appeals from county court is a cost bond, not a supersedeas bond because the statute specifically states that the appeal does not operate as a supersedeas unless it would be before the Supreme Court. Id. A cost bond commonly is referred to as an appeal bond. Id.

¶ 24. " Rule 11 is the 'cost bond' rule, and it provides that the 'appellant shall estimate the cost of preparation of the record on appeal' and pay that cost to the court clerk." Id. at 450 (¶ 20) (citing M.R.A.P. 11(b) ). "The appellant must also file a Rule 11 certificate of compliance showing that the cost has been paid." Id.

¶ 25. While the Court has identified Rule 11 as the cost bond rule, we have unequivocally stated that "the cost bond, or payment of the cost of preparing the record, is a statutory requirement of appeal" under Section 11-51-79. Id. at 450 (¶ 21). "Statutory bond requirements are jurisdictional issues." Id. at 451 (¶ 22). Indeed, the "Court repeatedly has held that failure to post an appeal bond (being the cost bond required by Mississippi Code Section 11-51-79 ) within the time permitted by statute results in the circuit court's lack of jurisdiction." Id. The Court has explained the distinction between cost bonds and supersedeas bonds, which both commonly have been called appeal bonds:

A cost bond is jurisdictional because it is a statutory requirement for an appeal. A supersedeas bond is not jurisdictional, unless a statute governing a certain type of appeal specifically requires a supersedeas bond. See Phillips Constr. [v. Miss. State Highway Comm'n ], 420 So.2d [1374,] 1375-76 [ (Miss. 1982) ]. Thus, a cost bond (or evidence of payment of the cost of preparing the record) must always be filed to perfect an appeal properly, but where the statute does not require a supersedeas bond, it is not a prerequisite for acquiring appellate jurisdiction.

T. Jackson Lyons & Assocs., P.A. , 87 So.3d at 451 (¶ 23).

¶ 26. In Johnson v. Evans , 517 So.2d 570 (Miss. 1987), the appellant failed to file a notice of appeal and pay a cost bond within the statutory period. We wrote that appeals from county courts to circuit courts are governed by Section 11-51-79. Id. At the time, Section 11-51-79 provided in part: "Appeals from the county court shall be taken and bond given within ten days of the entry of the final judgment or decree on the minutes of the court[.]" Id. at 570. The Court held that the appellant's failure to "post the bond" was jurisdictional, and, as a result, the circuit court had no power to hear the appeal. Id. at 571.

¶ 27. In T. Jackson Lyons & Associates, P.A. , the county court entered a final judgment on February 4, 2010, and the appellant filed a notice of appeal the same day. T. Jackson Lyons & Assocs., P.A. , 87 So.3d at 452 (¶ 26). On February 22, 2010, the appellant gave $450 in cash to the court clerk to pay the estimated cost of preparing the record, and he filed a Rule 11 certificate of compliance, evidencing the satisfaction of the statutory bond requirement. Id. We wrote that a literal bond was not needed because the cost bond was satisfied in its entirety by the cash payment. Id. Thus, the appellant's notice of appeal and evidence of satisfaction of the cost bond were filed within thirty days as required by Section 11-51-79. Id. Because the appeal was perfected properly, the Court held that the circuit court had appellate jurisdiction over the matter. Id.

¶ 28. In the case sub judice , however, it is undisputed that, while Belmont timely filed its notice of appeal, it did not pay the cost bond within thirty days of the county court's final judgment as required by Section 11-51-79. Because Belmont failed timely to pay the cost bond, the circuit court did not have appellate jurisdiction.

¶ 29. The Court routinely has acknowledged the existence of statutes requiring parties to post a bond as a condition precedent to perfecting their appeals from administrative agency decisions. See 5K Farms, Inc. , 94 So.3d at 228-29 (¶¶ 27, 30) (holding that a statutory pretrial bond requirement is a requirement governing appellate jurisdiction rather than a procedural requirement). We wrote that "[t]he existence of [such] statutes indicates that the principle that bonds relate to appellate jurisdiction and hence are within the purview of the Legislature is well grounded in Mississippi law." Id. at 228-29 (¶ 27) ; see also Robinson v. Morgan , 214 So.3d 188, 191 (¶ 14) (Miss. 2017) ; Miss. Dep't of Revenue v. AT & T Corp ., 101 So.3d 1139, 1148-49 (¶¶ 24-25) (Miss. 2012) ; Khurana v. Miss. Dep't of Revenue , 85 So.3d 851, 855 (¶¶ 11-13) (Miss. 2012).

¶ 30. While the cases mentioned involved appeals to trial courts from administrative agency decisions, the principle remains the same. It is the prerogative of the Legislature to set the appellate jurisdiction of circuit courts; it is not the Court's prerogative to establish jurisdiction through rules of procedure.

¶ 31. Furthermore, the circuit court did not err by finding that the jurisdictional requirement to pay a cost bond is not a deficiency as contemplated by Mississippi Rule of Appellate Procedure 2. Rule 2(a) is inapplicable to the case sub judice . Rule 2(a) provides:

(a) Dismissal of Appeal.
(1) Mandatory Dismissal. An appeal shall be dismissed if the notice of appeal was not timely filed pursuant to Rules 4 or 5.
(2) Discretionary Dismissal. An appeal may be dismissed upon motion of a party or on motion of the appropriate appellate court (i) when the court determines that there is an obvious failure to prosecute an appeal; or (ii) when a party fails to comply substantially with these rules.
When either court, on its own motion or on motion of a party, determines that dismissal may be warranted under this Rule 2(a)(2), the clerk of the Supreme Court shall give written notice to the party in default, apprising the party of the nature of the deficiency. If the party in default fails to correct the deficiency within fourteen (14) days after notification, the appeal shall be dismissed by the clerk of the Supreme Court. The attorney for the party in default has the burden to correct promptly any deficiency or to see that the default is corrected by the appropriate official. Motions for additional time in which to file briefs will not be entertained after the notice of the deficiency has issued.

M.R.A.P. 2.

¶ 32. At the hearing on the motion to dismiss the appeal, Davis argued that Section 11-51-79 requires the appellant to pay the cost bond regardless of what the clerks have done. We agree. Here, the circuit clerk was under no obligation to notify Belmont of its failure to comply with the statutory jurisdictional requirement of paying the cost bond. Rule 2 simply does not apply to the deficiency at issue here, i.e ., lack of jurisdiction. The deficiencies as described in Rule 2(a)(2) occur only "(i) when the court determines that there is an obvious failure to prosecute an appeal" or "(ii) when a party fails to comply substantially with these rules." The circuit court, sitting as an appellate court, did not enter a discretionary dismissal under Rule 2(a)(2) for the failure to comply with "these rules," i.e ., the Mississippi Rules of Appellate Procedure ; rather, the circuit court dismissed the appeal for lack of appellate jurisdiction . As explained above, it is the Legislature's prerogative to set appellate jurisdiction of circuit courts. It did so in Section 11-51-79.

¶ 33. For the same reasons, Rule 2(a)(2)'s instruction to provide a defaulting appellant fourteen days to correct the appeal's deficiencies is not applicable. Belmont was not deprived of due process when its appeal was dismissed without notice under Rule (2)(a)(2) because its failure was not a procedural deficiency; rather, its appeal was dismissed for its failure to comply with the statutory jurisdictional requirement of timely paying the cost bond. Belmont's deficiency and due process arguments are without merit. The circuit court's judgment and our holding further comport with Uniform Rule of Circuit and County Court Practice 5.04, which governs the procedures for appealing matters from county courts to circuit courts. Consistent with Section 11-51-71, Rule 5.04 requires that the costs of the appeal be paid within thirty days of the judgment or order being appealed in order for the appealing party to perfect the appeal.

CONCLUSION

¶ 34. For the foregoing reasons, we affirm the circuit court's judgment.

¶ 35. AFFIRMED .

RANDOLPH, P.J., BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. WALLER, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J., AND KING, J.

¶ 36. Because I believe the statutory time limitation to pay a cost bond cannot supersede or impede the Court's constitutional authority to govern rules of practice and procedure, I respectfully dissent.

¶ 37. Davis contends that this Court already has held that a cost bond is jurisdictional because it is a statutory requirement for appeal. See T. Jackson Lyons & Assocs., P.A. v. Precious T. Martin, Sr. & Assocs., PLLC , 87 So.3d 444, 451 (Miss. 2012). I agree that the payment of the cost bond is jurisdictional. But I believe any deficiencies in the payment of the bond are addressed under the Mississippi Rules of Appellate Procedure. Davis paid the proper cost bond but failed to do so within thirty days because of his inability to find out how much to pay. This is a deficiency, not a failure. Under the rules of this Court, mandatory dismissal occurs only when the notice of appeal is not timely, which is not at issue here. M.R.A.P. 2(a)(1).

¶ 38. The Lyons case mixed statutes and court rules in its analysis but did not consider how deficiencies are addressed under Mississippi Rule of Appellate Procedure 2(a)(2). In fact, this Court found that the cost bond paid by Martin was sufficient. The issue on appeal was whether Martin properly filed a supersedeas bond:

Lyons uses the term "appeal bond" but refers to Martin's motion to waive supersedeas bond and the $1,000 paid by Martin. In his motion to dismiss filed in circuit court, Lyons noted that the order allowing Martin to post bond in the amount of $1,000 did not state that the bond would supersede the judgment. While Lyons uses the term "appeal bond" for the bond requirement of Mississippi Code Section 11-51-79, he appears to be referring to a supersedeas bond.

Lyons , 87 So.3d at 451.

¶ 39. So, Lyons does not support Davis's argument. The opinion discussed only the differences in "appeal bonds, cost bonds, and supersedeas bonds ... to provide clarity." Id. at 448. More importantly, the authorities cited in Lyons regarding the statutory cost bond requirement predate the adoption of the Mississippi Rules of Appellate Procedure. The other cases cited by Davis involved appeals to trial courts from administrative-agency decisions, not actions that originated in a trial court. See 5K Farms, Inc. v. Miss. Dep't of Revenue , 94 So.3d 221, 227 (¶ 22) (Miss. 2012) (appeal stemmed from a determination made by the Mississippi Tax Commission); see also Jackson State Univ. v. Upsilon Epsilon Chapter of Omega Psi Phi Fraternity, Inc. , 952 So.2d 184, 186 (Miss. 2007) (appeal stemmed from the ruling of the JSU Student Life Disciplinary Committee); Miss. State Personnel Bd. v. Armstrong , 454 So.2d 912, 915 (Miss. 1984) (appeal stemmed from the petitioner's failure to file a bond after a judgment from a hearing officer employed by the Mississippi Employee Appeals Board).

¶ 40. The ultimate effect of Mississippi Code Section 11-51-79 respecting conflicts with the rules of procedure adopted by this Court was addressed in Davis v. Nationwide Recovery Ser., Inc. , 797 So.2d 929, 930 (Miss. 2001). At that time, Section 11-51-79 required that: "Appeals from the county court shall be taken ... within ten (10) days from the date of entry of the final judgment[.]" Miss Code Ann. § 11-51-79 (1972), amended by Miss. Code Ann. § 11-51-79 (2001). This time limitation arguably is just as applicable to subject-matter jurisdiction as is the requirement to post a cost bond within thirty days. In Davis , the circuit court had dismissed Davis's appeal as untimely because of the ten-day limit set out in the statute. In reversing, this Court held unanimously that Uniform Rules of Circuit and County Court Practice 5.04 and 12.03 provided that appeals were to be made within thirty days:

With the adoption of the Rules of Civil Procedure and the Court's pronouncements in Hall v. State , 539 So.2d 1338, 1345 (Miss. 1989), and Newell v. State , 308 So.2d 71, 76 (Miss. 1975), we articulated its power to establish rules regarding appeals from court to court, and its mandate that such rules supercede statutes which are in conflict with the rules. Accord , Van Meter v. Alford , 774 So.2d 430, 432 (Miss. 2000) ; American Investors, Inc. v. King , 733 So.2d 830, 832 (Miss. 1999).

Davis , 797 So.2d at 930.

¶ 41. While the cost bond is jurisdictional, deficiencies are addressed by court rules. This Court, in Brown v. Collections, Inc. , addressed the same statute at issue here, Section 11-51-79. Brown v. Collections, Inc. , 188 So.3d 1171 (Miss. 2016). The statute at issue in Brown provided that no interlocutory appeals could be taken from county court. To take the argument of the majority and apply it here, the Legislature said there was no jurisdiction for an appeal from county court to circuit court. This Court unanimously held in Brown that there was a conflict between Section 11-51-79 and Mississippi Rule of Appellate Procedure 5, and that the rule controlled:

So there is obviously a conflict between the statute and the rule-based interlocutory appeal procedure. When such a conflict exists, our court's rules trump statutory law. Stevens v. Lake , 615 So. 2d 1177, 1183 (Miss. 1993) ("statutes that conflict with rules adopted by the Court are void").

Brown , 188 So.3d at 1177.

¶ 42. In Van Meter v. Alford , 774 So.2d 430 (Miss. 2000), Van Meter filed his appeal from county court to circuit court on the thirtieth day after judgment and paid the clerk's filing fee of $100. Van Meter's appeal contained a number of deficiencies, resulting in a motion and subsequent order of dismissal. On appeal, this Court held, among other things, that an appeal from county court to circuit court is governed by the Mississippi Rules of Appellate Procedure:

The Court has previously addressed this issue in American Investors, Inc. v. King , 733 So.2d 830, 832 (Miss. 1999) ("An appeal from county court to circuit court is controlled by the Mississippi Rules of Civil Procedure ..., the URCCC, and the M.R.A.P."). We specifically held that M.R.A.P. 2(a)(2) applies to appeals from county court to circuit court. Id. Rule 2(a)(2) mandates that, after a motion to dismiss has been filed, the court clerk (the circuit clerk in this instance) officially notify an appellant of deficiencies in his appeal and that the appellant be given fourteen (14) days therefrom to correct any deficiencies.

Van Meter , 774 So.2d at 432.

¶ 43. The majority relies on Uniform Rule of Circuit and County Court Practice 5.04 to support its conclusion that the failure to pay the cost bond within thirty days of the judgment deprives the circuit court of appellate jurisdiction. Such summary treatment is contrary to the Mississippi Rules of Appellate Procedure. Rule 2 mandates dismissal only when the notice of appeal is not filed timely.

(1) Mandatory Dismissal. An appeal shall be dismissed if the notice of appeal was not timely filed pursuant to Rules 4 or 5.

M.R.A.P. 2(a)(1). The majority has, in effect, amended the Mississippi Rules of Appellate Procedure.

¶ 44. In my view, the late filing of an otherwise lawful appeal bond is a deficiency controlled by our rules. Mississippi Rule of Appellate Procedure 2(a)(2) requires that the court clerk officially notify Belmont Holdings of the deficiency. As stated in Van Meter , the lack of notice is a deprivation of due process:

Van Meter was therefore deprived of due process when his appeal was dismissed because he was not given an official notice of deficiencies in his appeal by the circuit clerk. Alford's motion to dismiss cannot be substituted for an official notice of deficiencies from the court clerk. Even where a party has moved to dismiss, the plain language of the rule requires a notice from the clerk of the deficiency and a fourteen day opportunity to cure the deficiency.

Van Meter , 774 So.2d at 432

¶ 45. In conclusion, the automatic dismissal required by the majority for the failure to pay or post a cost bond within thirty days under Section 11-51-79 and Uniform Rule of Circuit and County Court Practice 5.04 conflicts with the Mississippi Rules of Appellate Procedure. I would reverse the circuit court's judgment of dismissal and remand for further proceedings.

KITCHENS, P.J., AND KING, J., JOIN THIS OPINION.

      In support, Belmont references a check in the amount of $412.40 dated June 8, 2016, which cleared on June 16. The actual amount of the cost bond is not at issue and not relevant for purposes of the issues on appeal. According to Davis and Belmont at the trial level, Belmont paid the cost of appeal in the amount of $374 on June 14, 2016. The circuit court later found that the appeal bond (or cost bond) had been paid on June 26, 2016, which is consistent with the trial court docket. Whether the cost bond was paid on June 8, June 14, June 16, or June 26, our analysis is not affected, because it is undisputed that Belmont did not timely pay its cost bond.

      The Court has explained: "The bond required to perfect an appeal is a cost bond, which is sometimes referred to as an appeal bond. The bond required to obtain a stay of execution of a judgment while the judgment is being appealed is a supersedeas bond, also referred to as an appeal bond." T. Jackson Lyons & Assocs., P.A. v. Precious T. Martin, Sr. & Assocs., PLLC , 87 So.3d 444, 448 (¶ 13) (Miss. 2012). The Court also cautioned that litigants "would be well served to use the terms 'cost bond' and 'supersedeas bond' as appropriate and avoid using the term 'appeal bond' to prevent confusion. Id. at 449 n.6.

      Because Belmont challenges the validity of Section 11-51-79, it necessarily challenges constitutionality of the statute. However, Belmont did not comply with Mississippi Rule of Appellate Procedure 44(a) by serving the Attorney General with a copy of its brief challenging the validity of Section 11-51-79.

      See, e.g., Jackson State Univ. v. Upsilon Epsilon Chapter of Omega Psi Phi Fraternity, Inc ., 952 So.2d 184, 186 (Miss. 2007) (holding that, because plaintiff "fail[ed] to file a petition for writ of certiorari and to post a bond with security [in accordance with statute], the circuit court did not have jurisdiction ...."); Miss. State Personnel Bd. v. Armstrong , 454 So.2d 912, 915 (Miss. 1984) ("Th[e] Court has repeatedly held that statutory bond requirements are jurisdictional."); Wimley v. Reid , 991 So.2d 135, 139 (Miss. 2008) (holding that "pre-suit requirements are clearly within the purview of the Legislature, and do not encroach upon this Court's rule-making responsibility. Indeed, we consistently have held that the Legislature has authority to establish presuit requirements as a condition precedent to filing particular kinds of lawsuits.").

      The Mississippi Rules of Appellate Procedure were adopted effective January 1, 1995. See also Supreme Court Rules (adopted January 1, 1988). Cases cited not involving administrative decisions include Johnson v. Evans , 517 So.2d 570 (Miss. 1987) ; Williams v. Michael , 319 So.2d 226 (Miss. 1975) ; Parkman v. Miss. State Highway Comm'n , 250 So.2d 637 (Miss. 1971) ; Carney v. Moore , 130 Miss. 658, 94 So. 890 (1923) ; Humphreys v. McFarland , 48 So. 182 (Miss. 1909).


source: Caselaw Access Project

author: BARNES, J., FOR THE COURT:

license: Public Domain

text:
    Malcolm HORTON a/k/a Malcolm Devonte Horton a/k/a Malcolm Devonte Horton, Jr., Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00503-COA
    Court of Appeals of Mississippi.
    January 30, 2018 Rehearing Denied May 22, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: HUNTER NOLAN AIKENS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: ABBIE EASON KOONCE, JACKSON
    BEFORE IRVING, P.J., BARNES AND WESTBROOKS, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. On December 9, 2015, Malcolm Horton was convicted of armed robbery. He was sentenced by the Hinds County Circuit Court, First Judicial District, to thirty years in the custody of the Mississippi Department of Corrections (MDOC), with twenty years to serve, ten years suspended, and five years of post-release supervision. The court also ordered Horton to serve a consecutive sentence of five years for the use or display of a firearm during the commission of a felony under Mississippi Code Annotated section 97-37-37(1) (Rev. 2006). After the trial court denied his post-trial motion, Horton appealed. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On January 11, 2012, at approximately 10:45 p.m., Officer Stephanie Burse responded to a call regarding the attempted robbery of a Burger King on Robinson Road in Jackson, Mississippi. The assistant manager told Officer Burse that a masked gunman wearing a black shirt and jeans approached the restaurant while she was attempting to close; she ran back inside and hit the panic button, thwarting the robbery. While interviewing the employee, Officer Burse overheard a radio dispatch that a Popeyes's restaurant on Terry Road had been robbed.

¶ 3. Officer Ken Travis responded to the call regarding the Popeyes's robbery. He spoke with three employees, including the manager, Tameka Cross. The employees told Officer Travis that "they were approached by at least two males wearing black masks and black shirts." One employee, Nakisha Anderson, later testified that before the robbery she noticed a "dark red" car pull up next door and saw a masked male dressed in black get out and cock a pistol; so she and the other employee ran to a nearby store for help. Cross was forced back into the restaurant at gunpoint to open the safe, and the robber took approximately $700. While following Cross into the store, the gunman discharged his weapon into the air.

¶ 4. Horton was arrested a few days later in connection with the robberies. On January 19, 2012, he gave a recorded video statement to Detectives Eric Smith and Delars Smith, confessing to robbing the Popeyes and a Waffle House. Horton also gave a written statement to Detective Marcus Williams, in which he said he "ran up on a woman at [a] Jasco (store) with a gun" and took her "maroon Impala." Consistent with his video statement, Horton stated that he had on a mask and "was in all black" and that after taking the car, he robbed the Popeyes and a Waffle House.

¶ 5. Horton was indicted on May 9, 2012. Count I alleged that he attempted to rob a Burger King restaurant using a handgun. Count II alleged that he robbed a Popeyes's restaurant using a handgun. The indictment also alleged that Horton violated section 97-37-37(1) for "having used a firearm during the commission of a felony." A jury trial was held on December 8-9, 2015. Horton was found guilty on Count II, but was acquitted on Count I. At a separate sentencing hearing, the trial judge sentenced Horton to thirty years in the custody of the MDOC, with twenty years to serve, ten years suspended, and five years of post-release supervision. He was also ordered to serve a five-year consecutive sentence under the firearm-enhancement statute.

¶ 6. On December 17, 2015, Horton filed a motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court denied the motion, and he now appeals.

DISCUSSION

I. Whether the trial court erred in denying Horton twelve peremptory challenges.

¶ 7. During jury selection, the trial judge allowed both the defense and the State six peremptory challenges. Defense counsel argued that Horton should be given twelve peremptory challenges:

MR. ROUTH: Your Honor mentioned earlier to the jury six strikes or six peremptory challenges would be employed in this case. We believe it should be [twelve]. It's a capital case where a possible sentence of life is in play....
THE COURT: Is the State going to ask the jury to pass on sentence?
MR. SMITH: No, Your Honor. We're not seeking life and we're not gonna instruct the jury in that regard. I believe they have to be the ones who sentence to life for armed robbery.
THE COURT: All right.
MR. SMITH: We believe six is appropriate since we're not seeking life.
THE COURT: I agree.
....
Well life is not a possibility, Mr. Routh. And I'm looking at [Uniform Rules of Circuit and County Court] Rule 10.01. It says in felony cases not involving the possible sentence of death or life imprisonment, the defendant and the prosecution shall have six peremptory challenges with the selection of [twelve] jurors. And I believe that supports my ruling.

Defense counsel continued to assert, however, that because armed robbery carries a possible life sentence, the court should allow twelve peremptory challenges, and he moved for a mistrial. The trial judge denied the motion.

¶ 8. Horton claims that the trial court's ruling was an abuse of discretion. The State responds that because Horton was not facing life imprisonment, he was not entitled to twelve peremptory challenges. Mississippi Code Annotated section 99-17-3 (Rev. 2015) provides in part: "In capital cases the defendant and the [S]tate shall each be allowed twelve peremptory challenges. In cases not capital the accused and the [S]tate each shall be allowed six peremptory challenges; but all peremptory challenges by the [S]tate shall be made before the juror is presented to the prisoner." We acknowledge that armed robbery is a capital offense. "Capital cases," as defined in Mississippi Code Annotated section 1-3-4 (Rev. 2005), are "criminal cases, offenses, and crimes punishable by death or imprisonment for life in the state penitentiary." Mississippi Code Annotated section 97-3-79 (Rev. 2012), in turn, provides:

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years .

(Emphasis added). Thus, the crime of armed robbery does carry the possibility of a life sentence "if the penalty is so fixed by the jury."

¶ 9. By agreeing not to pass sentencing to the jury, the State never sought a life sentence for Horton. Since Horton's trial, the Mississippi Supreme Court, in Bester v. State , 188 So.3d 526, 529-30 (¶¶ 9-12) (Miss. 2016), upheld a trial court's sentence of life imprisonment for forcible rape absent a jury recommendation, as the applicable statute allowed the court to fix a penalty "for any term." This Court has applied Bester to affirm a trial judge's sentencing of a defendant convicted of armed robbery to a term of life absent a jury's recommendation, as section 97-3-79 contains similar language allowing the trial court to "fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years." See Young v. State , 2016-CP-00542-COA, 2017 WL 4386676, at **2-4 (¶¶ 7-9) (Oct. 31, 2017). It is evident from the record, however, that the trial judge, in this case, never contemplated the possibility of imposing a life sentence. As the trial judge noted, Rule 10.01 provided in part: "In felony cases not involving the possible sentence of death or life imprisonment, the defendant and the prosecution shall have six (6) peremptory challenges for the selection of the twelve regular jurors. These challenges may not be used in the selection of an alternate juror or jurors." (Emphasis added).

¶ 10. Therefore, we rely on the controlling language of Rule 10.01 in our determination of this issue. Since there was no possibility that Horton would be sentenced to life imprisonment by a jury, and Bester (and its progeny) had not yet raised the possibility that the trial court could impose such a sentence, we find the trial court's ruling that Horton was only entitled to six peremptory challenges was not an abuse of discretion.

II. Whether the trial court erred in enhancing Horton's sentence under section 97-37-37(1).

¶ 11. The trial court ordered Horton to serve a separate five-year consecutive sentence under the firearm-enhancement statute, section 97-37-37(1). Because the jury was not instructed to find he "used or displayed" a firearm during the commission of a felony, Horton contends that the trial court erred in imposing the enhanced sentence.

¶ 12. However, Jury Instruction S-2 instructed the jury that it should find Horton guilty of armed robbery if he willfully, unlawfully, and feloniously took money from Cross "by violence to her person or putting [ ] Cross in fear of immediate injury to her person by the exhibition of a deadly weapon, to wit: a handgun ." (Emphasis added). Thus, the jury instruction's language clearly stated that in order to convict Horton of armed robbery, the jury had to find, among other things, that he exhibited a deadly weapon. Section 97-37-37(1) likewise requires that Horton use or display a firearm during the commission of any felony before receiving the statutorily enhanced penalty. As the jury found beyond a reasonable doubt that Horton used a "deadly weapon, to-wit; a handgun," during the robbery of Cross, this finding satisfies the essential elements of section 97-37-37(1). See Johnson v. State , 44 So.3d 365, 367 (¶ 9) (Miss. 2010) (finding the jury decided each element of the enhanced-penalty statute when it found Laharrison Johnson guilty of armed robbery by use of a firearm, and section 97-37-37(1) required a determination of no additional factor not already decided by the jury).

¶ 13. Horton also claims that sentencing him under section 97-37-37(1) subjected him to double jeopardy. However, our Court has previously rejected this argument, finding "that sentence-enhancement statutes under which additional terms of imprisonment are imposed do not trigger double-jeopardy violations." Lewis v. State , 112 So.3d 1092, 1097 (¶ 15) (Miss. Ct. App. 2013). The statute "merely imposes an elevated sentence for use or display of a firearm during the commission of a felony, and it does not delineate an independent substantive offense." Id. Our supreme court has further concluded: "The Legislature intended for these two punishments to apply to the same offense, therefore there is no double-jeopardy concern." Taylor v. State , 137 So.3d 283, 288 (¶ 17) (Miss. 2014). We find no merit to Horton's claim.

III. Whether the trial court erred in admitting evidence of other bad acts.

¶ 14. Horton argues that the trial court erred in allowing the State to present evidence of other bad acts, specifically "an uncharged and unproven carjacking and armed robbery of a Waffle House," and that "the admission of this evidence prejudiced his substantial right to a fair trial," violating Mississippi Rules of Evidence 404(b), 403, and 105. The admission or exclusion of evidence by the trial court is reviewed for abuse of discretion. Thompson v. State , 157 So.3d 844, 851 (¶ 20) (Miss. Ct. App. 2015). We will reverse the court's decision "only if such discretion has been abused and a substantial right of a party has been affected." Id.

¶ 15. On October 5, 2015, Horton filed a motion requesting a redaction of a portion of his written statement to police, in which he stated he robbed a Waffle House and committed an armed carjacking of someone driving a maroon Impala. At a pretrial-motions hearing, defense counsel argued that this portion of Horton's statement was "prejudicial, and ... not probative to any proof in the State's case in chief in these two cases." But defense counsel did acknowledge that the incidents were "in close proximity." The motion was held in abeyance.

¶ 16. At trial, the State moved for the admission of Horton's statements to police, arguing the crimes "constitute[d] a single transaction or occurrence," and it would "have a difficult time telling a rational and coherent story of the events of the night without being able to explain that the car was used in the commission of this crime." After reviewing Horton's video statement, the trial judge allowed the State to introduce the video into evidence, finding:

On [the video,] the defendant discusses two armed robberies; one at the Popeyes and another at the Waffle House which occurred very close in time-on the same date apparently-and were clearly part of a common scheme or transaction, and thus will be admissible under Mississippi Rule of Evidence 404(b).... [R]edacting statements about the Waffle House robbery from the audio/videotape would no doubt be confusing to the jurors in this matter, and leave the audio/videotape in a disjointed and incoherent state.

However, the trial court did not allow Horton's written statement, as no evidence had linked the armed carjacking to the robberies. The court did state it would revisit the issue if such evidence was introduced.

¶ 17. After defense counsel referenced the carjacking during her opening statement, the State objected, arguing the reference opened the door to testimony about the carjacking from Detective Williams. The trial court sustained the objection, but did not rule on the admissibility of Horton's written statement. However, after Anderson testified that she saw a "dark red car" pull up next to the Popeyes and saw a man dressed all in black get out of the car with a gun, the State again moved to admit Horton's written statement and testimony by Detective Williams. The trial judge determined at that point that the reference in opening statements by defense counsel, coupled with Anderson's testimony, rendered evidence as to the armed carjacking "fair game consistent with [his] ruling as it concerns 404(b) evidence." Noting that "[w]ithout that evidence I believe it would be confusing to the jury," the trial judge allowed Horton's written statement to be admitted into evidence.

A. Rule 404(b)

¶ 18. Horton contends that the evidence of the stolen maroon Impala and the robbery of the Waffle House "was not necessary for the State to prove that the Popeyes and/or Burger King was robbed." Horton also claims the State's use of this evidence was a "tactical scheme" to prejudice his defense.

¶ 19. Rule 404(b)(1-2) provides:

Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character ... [However, t]his evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

The State asserts that since the robberies of the Popeyes and Waffle House occurred on the same evening within a short time of one another, the evidence was admissible "to show Horton's plan and motive in committing a string of armed robberies." In his video statement to the detectives, Horton confessed that he and two other men robbed the Popeyes, then proceeded to the Waffle House to commit another robbery. "Proof of another crime or act is allowed when it is so interrelated to the charged crime that it constitutes either a single transaction or occurrence or a closely related series of transactions or occurrences." Price v. State , 898 So.2d 641, 653 (¶ 30) (Miss. 2005) (citing Brown v. State, 890 So.2d 901, 912 (¶ 32) (Miss. 2004) ). "[T]he State has a legitimate interest in telling a rational and coherent story of what happened ...[, and w]here substantially necessary to present to the jury the complete story of the crime, evidence or testimony may be given even though it may reveal or suggest other crimes." Davis v. State , 40 So.3d 525, 530 (¶ 18) (Miss. 2010) (quoting Brown v. State , 483 So.2d 328, 330 (Miss. 1986) ).

¶ 20. We also agree with the State's argument that the evidence was relevant to prove Horton's identity. Anderson, a Popeyes's employee, testified that she saw men pull up next to the restaurant in a "dark red" car and a man step out with a gun. Accordingly, we find no abuse of discretion in the trial judge's determination that it was necessary for the jury to hear Horton's statements because that evidence told the entire story of what transpired that evening and corroborated Anderson's testimony about the "dark red" car.

B. Rule 403

¶ 21. Horton claims that the trial court erred in admitting the evidence "because the probative value of this evidence, if any, was substantially outweighed by the danger of unfair prejudice and confusion of the issues" under Rule 403. If evidence is admissible under Rule 404(b), "it still must pass through Rule 403, which is the 'ultimate filter through which all otherwise admissible evidence must pass.' " Stone v. State , 94 So.3d 1078, 1089 (¶ 34) (Miss. 2012) (quoting McKee v. State , 791 So.2d 804, 810 (¶ 22) (Miss. 2001) ).

¶ 22. Admittedly, the trial judge did not conduct an on-the-record balancing test under Rule 403. However, "a circuit court's failure to state Rule 403's 'magic words' does not mean that the court did not consider Rule 403's requirements or that the court erred in its decision on admissibility." Corser v. State , 147 So.3d 357, 360 (¶ 14) (Miss. Ct. App. 2013) (citing Tate v. State, 20 So.3d 623, 639 (¶ 40) (Miss. 2009) ). In Jones v. State , 920 So.2d 465, 476 (¶ 34) (Miss. 2006), the supreme court explained:

[W]hile we clearly interpret the rules of evidence as requiring that all otherwise admissible evidence be "filtered" through the balancing test set forth in Rule 403, we do not interpret this requirement to be a regimented procedure that must be explicitly performed on pain of reversal. Though this Court certainly expects trial judges to have considered Rule 403 in making their evidentiary rulings, we certainly do not predicate the soundness of these determinations on the express use of magic words.... It follows that our review depends on the evidence and not the judge, and while a judge's on-the-record analysis is recommended as it serves to fortify the judge's position for purposes of review, the lack of such analysis is harmless unless we deem the evidence to be patently prejudicial.

As the State argues, the record shows that the trial judge thoroughly considered the implications of admitting or excluding this evidence, hearing lengthy arguments from both the defense and the State, and even initially excluding the written statement from evidence until defense counsel's reference to the carjacking and Anderson's testimony about the car. In any event, any error in admitting the evidence regarding the carjacking and Waffle House was harmless. Horton confessed in both statements to robbing the Popeyes. Therefore, we find the trial court's admission of evidence of Horton's statements regarding the carjacking and Waffle House was not an abuse of discretion, as the evidence's probative value was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.

C. Rule 105

¶ 23. As amended on July 1, 2015, Rule 105 states:

If the court admits evidence that is admissible against a party or for a purpose-but not against another party or for another purpose-the court, unless expressly waived or rebutted, shall restrict the evidence to its proper scope, contemporaneously instruct the jury accordingly, and give a written instruction if requested.

Horton asserts that the trial court should have restricted evidence of the carjacking and Waffle House robbery "to its proper purpose." While Horton acknowledges that he did not request the court to give a limiting instruction, he claims that he did not "expressly waive[ ] the requirement that the trial court contemporaneously instruct the jury as to the proper purpose of the other bad acts evidence."

¶ 24. We find no merit to this claim. This Court has held that "even as amended, Rule 105 only requires the judge to offer a limiting instruction, which the defendant is free to 'waive.' " Curry v. State , 202 So.3d 294, 299 (¶ 16) (Miss. Ct. App. 2016) (citing M.R.E. 105 ). In fact, "the defendant may not want such an instruction because it may actually 'focus the jury's attention' on the potentially prejudicial testimony." Id. (quoting Tate v. State , 912 So.2d 919, 928 (¶ 28) (Miss. 2005) ). We concluded in Curry :

[Jemarcus] Curry's claim on appeal that he was prejudiced because such an instruction was not given is highly speculative. Curry's attorney presumably knew that such an instruction was available upon request, but he did not ask for it. Under the circumstances, we cannot say that the absence of a limiting instruction deprived Curry of a fair trial. See Robinson v. State , 940 So.2d 235, 239 (¶ 11) (Miss. 2006) (holding that the erroneous denial of a limiting instruction is harmless error unless it deprives the defendant of a fair trial).

Id. Likewise, Horton's attorney did not request a limiting instruction, and we find the absence of any limiting instruction by the court did not deprive Horton of a fair trial.

¶ 25. Accordingly, we affirm Horton's conviction and sentence.

¶ 26. AFFIRMED.

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

      We note that the Uniform Rules of Circuit and County Court relating to criminal practice have been supplanted by the Mississippi Rules of Criminal Procedure, effective July 1, 2017. But because the former rules were still in effect during Horton's trial, Rule 10.01 is applicable to his case.

      To the extent that Rule 10.01 (now Mississippi Rules of Criminal Procedure Rule 18.3(c)(1)(A)(i-ii) ) might be read as narrowing the provisions of section 99-17-3, the rule controls over the statute regarding matters of judicial procedure. See State v. Delaney , 52 So.3d 348, 351 (¶ 11) (Miss. 2011) ("[W]hen a statute conflicts with this Court's rules regarding matters of judicial procedure, our rules control.").

      Section 97-37-37(1) provides:
      Except to the extent that a greater minimum sentence is otherwise provided by any other provision of law, any person who uses or displays a firearm during the commission of any felony shall, in addition to the punishment provided for such felony, be sentenced to an additional term of imprisonment in the custody of the Department of Corrections of five (5) years, which sentence shall not be reduced or suspended.

      Rule 403 provides: "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."


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

text:
    Adam CHISM, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01404-COA
    Court of Appeals of Mississippi.
    February 13, 2018 Rehearing Denied June 19, 2018
    OFFICE OF STATE PUBLIC DEFENDER BY: PHILLIP BROADHEAD, FOR APPELLANT.
    OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN, FOR APPELLEE.
    BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Adam Chism appeals his conviction of burglary of a dwelling under Mississippi Code Annotated section 99-19-83 (Rev. 2015). Chism argues that his prior felony convictions were improperly admitted into evidence, the jury's verdict was based on insufficient evidence or against the overwhelming weight of the evidence, and the trial court failed to allow a circumstantial-evidence jury instruction. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Officer Angela Nichols of the Jackson Police Department was dispatched to a potential home burglary in progress. The house's alarm system was triggered, resulting in the alarm company calling the police, and the police department dispatched Nichols who was close by.

¶ 3. Nichols arrived at the scene and walked around to the basement in the back of the house where the alarm originated. She saw Chism backing out of the basement carrying a bag. Nichols ordered Chism to drop the bag and get down on the ground. He complied. Nichols arrested Chism after she inspected the bag and found an X-Box One game console.

¶ 4. Chism testified that he was on his way to his father's house early that Saturday morning to work, like he normally did on Saturdays. As they were driving, Chism and his wife, Mary, got into a dispute. To avoid any further confrontation, Chism testified that he asked Mary to pull over and let him out of the car. He would continue the rest of the way on foot. Chism said that, since he was already on probation from a previous conviction, he wanted to be extra precautious to avoid confrontation.

Mary let him out of the car and sped off hurriedly, which worried Chism. He testified that he began walking to the house of his friend's aunt, which was nearby. He planned to borrow a phone to check on his wife and let his father know that he was on the way.

¶ 5. Chism then testified that he was walking past the house at issue, and he heard an alarm. He walked around the house to investigate and assist anyone that may need help. He then claimed the back door was wide open. Chism also said that he did not intend to go inside and take anything; but, he entered the house and called for anyone that may be inside. He then noticed a bag on the floor of the basement. He picked up the bag just as Nichols was rounding the corner.

¶ 6. After placing Chism in custody, Nichols testified that she and other officers entered the house through the basement door to inspect and secure the house. Kenneth Gray, the then-tenant of the house, testified that the basement door separating the basement from outside had been pushed in and the doorframe sustained significant damage. Gray testified that he had not given anyone permission to enter his residence. Gray confirmed Nichols's testimony that his bicycle, which he usually stored inside the basement, was leaning against the wall outside of the basement door.

¶ 7. Once inside the house, Nichols proceeded upstairs into the kitchen and living-room areas. She testified that the door separating the basement from the living room was totally destroyed and completely torn in half. She found the living room in disarray, and the couch was thrown about as though someone had been searching through it. Nichols stated these were all common signs of forced entry and burglary.

¶ 8. Chism was found guilty and sentenced as a habitual offender to life in the custody of the Mississippi Department of Corrections without the possibility of parole.

ANALYSIS

I. Whether the admission of Chism's prior burglary convictions into evidence was an abuse of discretion.

¶ 9. Chism's first argument is that evidence of his prior felony convictions in 2009 and 2013 for house burglary and auto burglary was improperly admitted. "The standard of review regarding admission or exclusion of evidence is abuse of discretion. We will not reverse the trial court's evidentiary ruling unless the error adversely affects a substantial right of a party." Mingo v. State , 944 So.2d 18, 28 (¶ 27) (Miss. 2006) (citing Parks v. State , 884 So.2d 738, 742 (¶ 9) (Miss. 2004) ). See also M.R.E. 103(a).

¶ 10. Also, the supreme court has held that "when the trial court determines under Mississippi Rule of Evidence 403 that prejudice substantially outweighs the probative value of particular evidence, it remains within the court's discretion to determine whether to exclude the evidence, since Rule 403 does not mandate such an exclusion but rather states that the evidence may be excluded." Baldwin v. State , 784 So.2d 148, 156 (¶ 27) (Miss. 2001). In Baldwin , the court further stated "that [its] task as an appellate court reviewing a Rule 403 determination is not to engage anew in the Rule 403 balancing process. Rather, it must simply determine whether the trial court abused its discretion in weighing the factors and admitting or excluding the evidence." Id. (internal citation omitted).

¶ 11. Chism filed a motion in limine to preclude the State from introducing evidence of, or otherwise referencing at trial, his prior felony convictions. The trial court reserved ruling on the motion until the appropriate time during trial, and instructed the State to make no references to Chism's prior convictions until addressing the matter with the trial court.

¶ 12. At the end of trial, after the defense had rested, the State again sought to admit Chism's prior burglary convictions under Mississippi Rule of Evidence 404(b) as self-authenticating judgments of conviction for substantive proof of intent to commit the crime. The court heard argument, overruled Chism's objection, and allowed the house-burglary and auto-burglary convictions into evidence in order to show Chism's intent.

¶ 13. The elements of burglary of a dwelling are the "breaking and entering [of a] dwelling house ... of another, whether armed with a deadly weapon or not, and whether there shall be at the time some human being in such dwelling house or not, with intent to commit some crime therein ...." Miss. Code Ann. § 97-17-23(1) (Rev. 2014). Intent is a vital element of burglary. Rule 404(b) provides:

Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent , preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

(Emphasis added).

¶ 14. The Mississippi Supreme Court has held that "[u]sually, evidence of another crime or prior bad act is not admissible.... However, evidence or proof of a prior crime or bad act is admissible where it is necessary to show identity, knowledge, intent, or motive, or to prove scienter." Jones v. State , 904 So.2d 149, 152 (¶ 6) (Miss. 2005).

¶ 15. In Jones, Jessie Jones was convicted of attempted burglary and sentenced as a habitual offender before having that decision reversed and remanded by the Mississippi Court of Appeals. Id. at 151 (¶ 1). Jones testified that he entered the residence in order to obtain help after his vehicle broke down. Id. at 153 (¶ 9). The State then introduced evidence of five prior burglary convictions in order to prove intent. Id. The supreme court found, "[t]he prior convictions tend to prove, along with other facts, that Jones's intent was to burglarize the house, not to obtain help." Id. After the supreme court found that Jones's prior convictions were originally only offered to show intent, and not modus operandi, the court reversed this Court's decision and reinstated the circuit court's judgment. Id. at 155 (¶ 19).

¶ 16. In Carter v. State , 953 So.2d 224 (Miss. 2007), during a trial for attempted burglary, evidence of the defendant's six prior burglary or grand-larceny convictions was admitted to the jury to show intent. "The defendant's intent was a necessary element for his conviction, and his prior felony convictions were admitted for limited purposes, permissible under Rule 404(b), including intent." Carter , 953 So.2d at 231 (¶ 17). The trial court determined that the evidence of the prior convictions was "extremely probative of [the defendant's] intent, a necessary element, and [thus] outweigh[ed] the prejudicial effect." Id. at 229 (¶ 11).

¶ 17. As in Jones and Carter , evidence of Chism's prior convictions was offered to prove that Chism's intent was to burglarize the house, not to offer aid to someone. While on the stand, Chism repeatedly answered questions from his attorney regarding his intent that morning, his intent upon approaching the house, and his intent while inside the house. The trial court found that "given [Chism's] vigorous assertion of lack of intent [to steal,] ... the admission of the [past] burglary conviction[s] ... is extremely relevant and appropriate, in the State's effort to rebut the defendant's assertion that he did not intend to burglarize the home."

¶ 18. The trial court determined that the evidence of the prior convictions was not overly prejudicial compared to its probative value. Intent in burglary cases is a central element to the charge. As a result, the evidence of intent was allowed in by Rule 404(b). Therefore, this Court cannot conclude that the trial court abused its discretion in admitting Chism's prior felony convictions into evidence. We find no merit to this issue.

II. Whether the jury's verdict was supported by legally sufficient evidence and was in accord with the overwhelming weight of the evidence.

¶ 19. Chism next argues that the trial court erred in denying his motions for a new trial and for a judgment notwithstanding the verdict (JNOV). To establish that Chism committed burglary, the State was required to prove: "(1) the unlawful breaking and entering; and (2) the intent to commit some crime when entry [was] attained." Parker v. State , 962 So.2d 25, 27 (¶ 9) (Miss. 2007). We address Chism's claims separately and demonstrate the clear difference between these issues.

A. Legal Sufficiency of the Evidence

¶ 20. When considering whether the evidence is sufficient to sustain a conviction in the face of a motion for a JNOV, this Court is not required to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Jackson v. Virginia , 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citation omitted). "Instead, 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 319, 99 S.Ct. 2781.

¶ 21. Our supreme court has held:

Should the facts and inferences considered in a challenge to the sufficiency of the evidence point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is for the appellate court to reverse and render. However, if a review of the evidence reveals that it is of such quality and weight that, having in mind the beyond[-]a[-]reasonable[-]doubt[-]burden[-]of[-]proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense, the evidence will be deemed to have been sufficient.

Bush v. State , 895 So.2d 836, 843 (¶ 16) (Miss. 2005) (internal citations and quotation marks omitted) (abrogated on other grounds).

¶ 22. When considering the evidence in the light most favorable to the prosecution, we find there was sufficient evidence to convict Chism of burglary of a dwelling. The alarm system on the house had been triggered by a break-in, and the alarm company and police were notified. Because Nichols was so close by at the time she received the call from dispatch, she was able to arrive on the scene quickly and see Chism exiting the house through the broken basement door with stolen goods in his possession. The bag contained property later identified as belonging to the resident of the home, Gray. The basement door that Chism admittedly entered and exited without Gray's permission was severely damaged, and the inside of the home showed signs consistent with forced entry and burglary. Gray's bicycle, which was normally stored inside the basement, had been moved and set up against the outside of the house near the basement door.

¶ 23. Considering these facts, we find that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. We find no merit to this issue.

B. Overwhelming Weight of the Evidence

¶ 24. When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, only if the verdict "is so contrary to the overwhelming weight of the evidence [and allowing] it to stand would sanction an unconscionable injustice," will this Court grant the proper remedy of a new trial. Herring v. State , 691 So.2d 948, 957 (Miss. 1997). However, "the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict." Bush , 895 So.2d at 844 (¶ 18) (quoting Amiker v. Drugs For Less, Inc. , 796 So.2d 942, 947 (¶ 18) (Miss. 2000) ). In addition, "the evidence should be weighed in the light most favorable to the verdict." Id.

¶ 25. In viewing the evidence in the light most favorable to the verdict, we cannot say that an unconscionable injustice resulted from the jury's rendering of a guilty verdict. Chism argues that the State's case is flimsy and based on circumstantial evidence because Nichols did not see Chism break through the door and enter the house. He also argues that the State failed to establish that Chism had the requisite intent to steal. However, as stated in detail above, Nichols saw Chism inside the broken-into house and witnessed him intentionally steal the X-Box game console from the house. This testimony is not in dispute nor is it circumstantial. Viewed in the light most favorable to the verdict, we cannot say that the evidence preponderates heavily against the jury's decision to find Chism guilty of burglary of a dwelling. We find no merit to this issue.

III. Whether the trial court erred in refusing a proposed circumstantial-evidence jury instruction.

¶ 26. The giving or refusal of jury instructions is reviewed for an abuse of discretion. Windless v. State , 185 So.3d 956, 960 (¶ 8) (Miss. 2015). The Mississippi Supreme Court has consistently held that jury instructions are within the sound discretion of the trial court. Goodin v. State , 787 So.2d 639, 657 (¶ 60) (Miss. 2001). A trial court in Mississippi can refuse a jury instruction if the instruction "incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence." Taylor v. State , 137 So.3d 283, 286 (¶ 9) (Miss. 2014) (quoting Heidel v. State , 587 So.2d 835, 842 (Miss. 1991) ).

¶ 27. The supreme court has repeatedly held that "[w]hen jury instructions are challenged on appeal, we do not review them in isolation; rather, we read them as a whole to determine if the jury was properly instructed." Rubenstein v. State , 941 So. 2d 735, 787 (¶ 239) (Miss. 2006) (citation and internal quotation marks omitted). When read together, "if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found .... There is no error if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law." Id. at 785 (¶ 224) (internal citation and quotation marks omitted).

¶ 28. Chism proposed defense instruction D-7, which provided:

[t]he Court instructs the jury that if you determine that the State's proof against the Defendant is wholly circumstantial , in that event, the guilt of the Defendant must not only be proved beyond a reasonable doubt but also to the exclusion of every other reasonable hypothesis consistent with innocence.

(Emphasis added). In other words, if there is any direct evidence presented in the case, then the State's proof is not wholly circumstantial, and this instruction would be irrelevant.

¶ 29. "[C]ircumstantial evidence is evidence that, without going directly to prove the existence of a fact, gives rise to a logical inference that such a fact does exist." Keys v. State, 478 So.2d 266, 268 (Miss. 1985). Our supreme court has held that "[a] circumstantial-evidence case is one where the State is 'without a confession and wholly without eyewitnesses to the gravamen of the offense charged.' " Garrett v. State , 921 So.2d 288, 291 (¶ 17) (Miss. 2006) (quoting Kniep v. State , 525 So.2d 385, 392 (Miss. 1988) ).

¶ 30. "A defendant is entitled to a circumstantial-evidence instruction ... only when the case against him is based entirely on circumstantial evidence, as opposed to direct evidence." Grayer v. State , 120 So.3d 964, 968 (¶ 11) (Miss. 2013). "[E]xamples of direct evidence include an admission or confession by the defendant to 'a significant element of the offense,' or eyewitness testimony 'to the gravamen of the offense charged.' " Kirkwood v. State , 52 So.3d 1184, 1187 (¶ 10) (Miss. 2011) (quoting Mack v. State , 481 So.2d 793, 795 (Miss. 1985) ). The latter example is most relevant to this case.

¶ 31. Here, there is eyewitness testimony to the gravamen of the offense of burglary of a dwelling: "(1) the burglarious breaking and entering [of] a dwelling, and (2) the felonious intent to commit some crime therein." Moore v. State , 344 So.2d 731, 735 (Miss. 1977). The crux of Chism's argument is that since there was no eyewitness who identified him as the person who broke into and entered Gray's residence, nor was there evidence of Chism's intent to steal, all the State's evidence is circumstantial. Therefore, he claims he is entitled to the circumstantial-evidence instruction.

¶ 32. However, the State produced direct evidence to the gravamen of the offense charged in the form of eyewitness testimony. Nichols's testimony puts Chism inside and exiting the broken-into house while intentionally in the possession of stolen property. Therefore, because of the presence of direct eyewitness testimony, the State's case was not wholly circumstantial. Accordingly, we find that Chism was not entitled to a circumstantial-evidence instruction. We find no merit to this issue. Chism's conviction and sentence of life without eligibility for parole as a habitual offender are affirmed.

¶ 33. AFFIRMED.

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


text:
    Rodise JENKINS a/k/a Rodise Jenkins, III, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01527-COA
    Court of Appeals of Mississippi.
    February 13, 2018 Rehearing Denied June 19, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: MOLLIE MARIE McMILLIN
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: SCOTT STUART
    BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Rodise Jenkins was convicted of murder by deliberate design in violation of Mississippi Code Annotated section 97-3-19(1)(a) (Supp. 2017). He was sentenced to life in the custody of the Mississippi Department of Corrections. On appeal, he argues that the jury was improperly instructed and that evidence of the victim's criminal history was improperly excluded. We find no error and affirm.

FACTS

¶ 2. Hazel Turner lived in Biloxi, Mississippi, with her boyfriend, Jenkins. Turner's son, Anthony Wheaton, also lived in Biloxi. On October 11, 2014, at 2 a.m., Nyra Jenkins, Jenkins's ex-wife, called Jenkins's telephone, and Turner answered. Nyra proceeded to harass Turner over the phone as she had done in the past. Once Jenkins arrived home from work about 5 a.m., he and Turner spoke about Nyra and the possibility of filing for a restraining order against her. Jenkins then called Nyra and spoke with her about the calls.

¶ 3. Turner and Jenkins were upset over the Nyra situation and the harassing phone calls. While Jenkins slept, Turner made three calls to different family members to talk, one of whom was Wheaton. Shortly after 2 p.m. that same day, Turner and Jenkins were seated in the kitchen talking when Wheaton walked into the house. Together in the kitchen, they continued the conversation about Nyra and the possible restraining order. The conversation grew more intense as Jenkins became agitated and no longer wished to discuss it with Wheaton. The two stood up and faced each other. Turner sensed something was wrong and jumped in between Jenkins and Wheaton to de-escalate the situation.

¶ 4. While Wheaton and Turner moved toward the front porch, Jenkins left through the back door of the house and headed toward his truck. Once at his truck, Jenkins realized he had forgotten his wallet and keys inside. He grabbed his gun from the truck and walked around to the front of the house where Wheaton and Turner were standing. Jenkins shot at Wheaton three times, and hit him twice. Wheaton and Turner then ran into the house, and Jenkins followed. Jenkins walked up to Wheaton and shot him two more times from close range. Wheaton died as a result of multiple gunshot wounds.

¶ 5. Turner then called 911 while Jenkins fled the scene. He was quickly apprehended and arrested without resistance.

ANALYSIS

I. Whether it was error to refuse Jenkins's proposed manslaughter instruction.

¶ 6. Jenkins argues he was entitled to have the jury instructed on manslaughter. Jenkins submitted proposed jury instruction D-16, which would have instructed the jury "that the killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without the authority of law, and not [in] necessary self[-]defense, shall be manslaughter." He also submitted proposed instructions D-15 to define "heat of passion" and D-17 to instruct the jury to proceed to consideration of manslaughter if the jury found Jenkins not guilty of murder. All three instructions were refused by the trial court on the ground that there was no evidence in the record to support the assertion that Jenkins killed Wheaton in a state of violent and uncontrolled rage.

¶ 7. It is well settled that jury instructions generally are within the discretion of the trial court. Davis v. State , 18 So.3d 842, 847 (¶ 15) (Miss. 2009) (citing Higgins v. State , 725 So.2d 220, 223 (¶ 15) (Miss. 1998) ). Further, jury instructions must be considered together:

[i]n determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. There is no error if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law.

Newell v. State , 49 So.3d 66, 73-74 (¶ 20) (Miss. 2010) (quoting Rubenstein v. State , 941 So. 2d 735, 784-85 (¶ 224) (Miss. 2006) ). Additionally, we have explained that "[a] defendant is entitled to have jury instructions given [that] present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction that incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence." Hearn v. State , 3 So.3d 722, 738 (¶ 45) (Miss. 2008) (quoting Chandler v. State , 946 So.2d 355, 360 (¶ 21) (Miss. 2006) ).

¶ 8. A lesser-included-offense instruction should be denied only when the court finds that "no reasonable jury could find the defendant guilty of the lesser[-]included offense," and, conversely, "not guilty of at least one essential element of the principal charge." Harper v. State , 478 So.2d 1017, 1021 (Miss. 1985). In other words, "a lesser-included[-]offense instruction is authorized if a rational or reasonable jury could find the defendant not guilty of the principal offense in the indictment, but guilty of the lesser-included offense." White v. State , 842 So.2d 565, 575 (¶ 30) (Miss. 2003). Therefore, "[o]nly in cases where the evidence could only justify a verdict of murder, should a requested manslaughter instruction be refused." Ruffin v. State , 444 So.2d 839, 840 (Miss. 1984).

¶ 9. In his brief, Jenkins repeatedly relies on Turner's trial testimony to show how she observed Jenkins to be feeling. Turner-not Jenkins-testified that Jenkins seemed angry, agitated, frustrated, mad, and even "beyond rage." In fact, Jenkins repeatedly denied that he was angry at all, much less "beyond rage." Jenkins testified that he was afraid, terrified, in fear for his life, and frightened, and that he acted to defend himself. This testimony was inconsistent with the requirements for manslaughter.

¶ 10. Jury instruction D-15 defined "heat of passion" as "a state of violent and uncontrollable rage engendered by a blow or certain other provocation given, but the passion must be the result of immediate and reasonable provocation arising from words or acts of the victim." Wheaton confronted Jenkins at the home Jenkins shared with Turner. That fact is not in dispute. After the confrontation in the kitchen, Jenkins fled the house and went to his truck. He then realized he had forgotten his wallet and keys, but instead of returning through the back door he had just exited in order to retrieve them, he grabbed a loaded gun and headed to the front of the house in Wheaton's direction.

¶ 11. Jenkins then shot Wheaton. This act was not an immediate response to anything Wheaton did. Jenkins testified that he was reacting out of fear to an action by Wheaton. However, after the first three shots were fired at Wheaton, Jenkins did not gather his keys and leave; instead, he followed Wheaton back into the house. Jenkins saw Wheaton on the floor and shot him again, this time from close range, in the head.

¶ 12. A significant amount of time passed between Jenkins' and Wheaton's interaction in the kitchen and when Jenkins shot Wheaton. "[A] heat-of-passion jury instruction is not warranted where a cooling-off period exists between the provocation and the killing." Sanders v. State , 103 So.3d 775, 779 (¶ 13) (Miss. Ct. App. 2012). Although "[a] defendant is entitled to have jury instructions given [that] present his theory of the case ...," the court may refuse the instruction if it "is without foundation in the evidence." Hearn, 3 So.3d at 738 (¶ 45). Because of the lack of an evidentiary foundation and the fact that no reasonable jury could find the defendant guilty of the lesser-included offense of manslaughter, the trial judge did not err when he refused the proposed jury instructions on manslaughter. Harper , 478 So.2d at 1021.

II. Whether the trial court erred in granting jury instruction S-9, an instruction on the use of deadly force.

¶ 13. After the trial judge gave jury instruction S-9, Jenkins made a general objection to the use of the instruction without any further explanation. There remains a question as to whether the point was effectively preserved for appeal:

[T]he rule of this Court [is] that no assignment of error based on the giving of an instruction to the jury will be considered on appeal unless specific objection was made to the instruction in the trial court stating the particular ground or grounds for such objection. However, in extreme cases, this Court may raise an objection to a jury instruction in order to prevent manifest injustice.

Watson v. State , 483 So.2d 1326, 1329 (Miss. 1986). "A corollary of this is that a general objection to a jury instruction does not suffice to preserve the issue for appeal." Id. (citing Holifield v. State , 431 So.2d 929, 930 (Miss. 1983) ). Therefore, since Jenkins failed to adequately preserve this issue for appeal, it can only be analyzed under the plain-error doctrine to determine if there was an error resulting in a manifest miscarriage of justice.

¶ 14. To prevail under the plain-error doctrine, an appellant must show that an error occurred that resulted in a "manifest miscarriage of justice." Flora v. State , 925 So.2d 797, 811 (¶ 42) (Miss. 2006). Jenkins failed to adequately preserve the issue for appeal with a specific objection. However, notwithstanding the waiver, we still cannot conclude based upon our review of the record that there was an error that caused manifest injustice.

¶ 15. Jenkins alleges jury instruction S-9 contained an incorrect statement of the law and subsequently diluted Jenkins's evidence that he acted in self-defense. The instruction was one of deadly force, which stated that when a person defends himself from an assault with a deadly weapon, he "acts at his peril." Courts have condemned the phrase "acts at his own peril" from future jury instructions as a confusing, incorrect statement of the law. Scott v. State , 446 So.2d 580, 583-84 (Miss. 1984). If a person is acting reasonably under the belief his life is in danger, there is no peril. Id.

¶ 16. Jenkins cites Flowers v. State , 473 So.2d 164 (Miss. 1985), Johnson v. State , 908 So.2d 758 (Miss. 2005), and Blunt v. State , 55 So.3d 207 (Miss. Ct. App. 2011). " Flowers , Johnson , and Blunt make it clear that the 'at peril' phrase is incorrect. That does not end the inquiry, however. No supreme court decision holds that use of the 'he acts at his own peril' language in a self-defense jury instruction is 'per se' reversible error." Rodgers v. State , 166 So.3d 537, 547 (¶ 30) (Miss. Ct. App. 2014).

¶ 17. In Flowers , unlike in the present case, "the State's evidence was fraught with inconsistencies"; the supreme court noted that "it [was] especially important in a factually close case that the jury be properly instructed." Flowers , 473 So.2d at 166. The facts in the present case are undisputed. The trial court instructed the jury numerous times on Jenkins's right to self-defense through instructions other than S-9. These instructions included Jenkins's right to stand his ground; his right to use a deadly weapon if the victim was larger and stronger than Jenkins, even if the victim was without a weapon; as well as additional general laws on self-defense.

¶ 18. "In reviewing challenges to jury instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found." Rodgers , 166 So.3d at 544 (¶ 16) (quoting Johnson , 908 So.2d at 764 (¶ 20) ). "When considering the numerous and detailed instructions on self-defense given the jury, the jurors could not have been in hopeless conflict over the instructions." Id. at 547 (¶ 30). We can find no evidence of a "manifest miscarriage of justice" that seriously affects the fairness, integrity, or public reputation of the judicial proceeding. Accordingly, we find no plain error.

III. Whether the trial court erred in excluding evidence of Wheaton's prior convictions.

¶ 19. Jenkins argues that evidence of Wheaton's prior convictions should have been allowed into evidence in order to show Wheaton's violent nature. Jenkins wished to lay the basis for his self-defense claim using these prior convictions. "The standard of review regarding admission or exclusion of evidence is abuse of discretion. We will not reverse the trial court's evidentiary ruling unless the error adversely affects a substantial right of a party." Mingo v. State , 944 So.2d 18, 28 (¶ 27) (Miss. 2006) (citing Parks v. State , 884 So.2d 738, 742 (¶ 9) (Miss. 2004) ). See also M.R.E. 103(a).

¶ 20. In 2010, Wheaton was convicted of carrying a concealed weapon. In 2012 and 2013, Wheaton was convicted of domestic violence. During the State's case-in-chief, Jenkins offered authenticated court abstracts of these criminal judgments to prove Wheaton's violent nature. Jenkins first attempted to question Turner about the convictions in a proffer of the evidence outside the jury's presence, but the trial court sustained the State's objection and excluded the evidence. The trial court determined that because Turner was unaware of exactly what Wheaton had been convicted of, did not press charges herself, was not certain who did press charges, and never told Jenkins about the convictions, there was no evidence to suggest that Jenkins knew of Wheaton's prior convictions.

¶ 21. It was not until after Jenkins testified and stepped down from the witness stand that he offered the court abstracts of Wheaton's convictions as a composite exhibit. The State objected, and the trial court sustained the objection on the grounds that the convictions occurred before Jenkins and Turner moved in together, they did not involve Jenkins as either a party or a witness, and Jenkins did not have knowledge of the actual convictions.

¶ 22. Ordinarily, specific instances of conduct may be used on both direct and cross-examination when the pertinent trait of character being examined is an "essential element of a charge, claim, or defense." M.R.E. 405(b). Wheaton's violent nature would be relevant to Jenkins's charge of murder and claim of self-defense. However, Jenkins failed to introduce these specific instances during direct or cross-examination.

¶ 23. Notwithstanding the procedural bar, we cannot find that Wheaton's prior convictions had any impact on Jenkins's defense. Jenkins cites Heidel v. State , 587 So.2d 835 (Miss. 1991), Green v. State , 614 So.2d 926 (Miss. 1992), and Jordan v. State, 211 So.3d 713 (Miss. Ct. App. 2016), as examples of violent-crime convictions that have been overturned because evidence of the victims' violent nature was not admitted into evidence. However, each of these cases differs from the present case. In each Heidel , Green , and Jordan , the defendant and the victim had a close, private relationship in which violence between the two had occurred prior to their respective crimes. Here, the record does not support Jenkins's allegations of previous violent encounters with Wheaton, nor is there any evidence that Jenkins had personal knowledge of previous violent encounters between Wheaton and anyone else.

¶ 24. In Heidel , Green , and Jordan , the defendants' verdicts were reversed because they were denied the opportunity to submit evidence of instances they personally experienced and had personal knowledge of. Because Jenkins was unaware of Wheaton's prior convictions, he could not have considered Wheaton's violent past when he decided to shoot Wheaton. The convictions were irrelevant to Jenkins's state of mind at the time he shot Wheaton and his subsequent self-defense theory. Therefore, the trial court did not err when it excluded evidence of Wheaton's prior convictions.

IV. Whether Jenkins received ineffective assistance of counsel.

¶ 25. Jenkins argues that he received ineffective assistance of counsel due to his trial counsel's failure to request and procure a manslaughter instruction on the theory of imperfect self-defense. To prove ineffective assistance of counsel, Jenkins must show: (1) his counsel's performance was deficient, and (2) the deficient performance prejudiced his defense. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052. To overcome this presumption, Jenkins "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052.

¶ 26. However, the Mississippi Supreme Court has stated:

It is unusual for this court to consider a claim of ineffective assistance of counsel when the claim is made on direct appeal. This is because we are limited to the trial court record in our review of the claim[,] and there is usually insufficient evidence within the record to evaluate the claim.... [W]here the record cannot support an ineffective[-]assistance[-]of[-]counsel claim on direct appeal, the appropriate conclusion is to deny relief, preserving the defendant's right to argue the same issue through a petition for post-conviction relief. This [c]ourt will rule on the merits on the rare occasions where (1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.

Wilcher v. State , 863 So. 2d 776, 825 (¶ 171) (Miss. 2003) (internal citations and quotation marks omitted). Since neither situation is present here, we decline to address this issue and dismiss Jenkins's ineffective-assistance-of-counsel claim without prejudice, so that he may seek permission from the Mississippi Supreme Court to raise this issue in a post-conviction-relief petition, if he so chooses. Jenkins's conviction is affirmed.

¶ 27. AFFIRMED.

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

      As the supreme court has stated:
      We do not condone what we can only assume was the careless submission of the challenged jury instruction. The prosecution certainly acted at its peril in submitting an instruction containing language as strongly condemned as the "at peril" language in the challenged instruction. That it did not rise to the level of plain error in this case does not mean that it will not in a future case.
      Rodgers , 166 So.3d at 547 n. 2.