author: BEAM, JUSTICE, FOR THE COURT: KING, JUSTICE, DISSENTING:

text:
    Curtis BROWN v. PROFESSIONAL BUILDING SERVICES, INC.
    NO. 2016-CT-00818-SCT
    Supreme Court of Mississippi.
    August 30, 2018
    ATTORNEYS FOR APPELLANT: STEVEN HISER FUNDERBURG, CRAIG ROBERT SESSUMS, RIDGELAND
    ATTORNEYS FOR APPELLEE: JASON HOOD STRONG, ROBERT L. GIBBS, RICHARD BENJAMIN McMURTRAY
    EN BANC.
    ON WRIT OF CERTIORARI
   BEAM, JUSTICE, FOR THE COURT:

¶ 1. Curtis Brown petitioned this Court for a writ of certiorari , claiming the Mississippi Court of Appeals erred in affirming the judgment entered by the Hinds County Circuit Court in favor of Professional Building Services (PBS). Brown claimed the trial court had abused its discretion by admitting certain evidence and by instructing the jury with instructions to which Brown had objected at trial.

¶ 2. Finding that the jury was instructed properly on this evidence and that the testimony was provided by an expert qualified under Mississippi Rule of Evidence 702, we affirm the judgment of the Court of Appeals, and we affirm the judgment of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 3. Brown was the former clubhouse manager at Colonial Country Club in Jackson, Mississippi, which closed its doors in 2014. On September 28, 2012, Brown arrived at the clubhouse around 5 p.m. to do a monthly inventory of the "19th Hole Lounge" and "the grill"-a restaurant inside the clubhouse. That night, PBS employees also were at the clubhouse, cleaning and vacuuming the grill area. Around 8:00 p.m., the PBS staff left, leaving Brown alone in the clubhouse.

¶ 4. After finishing his reports, Brown walked around the clubhouse to make sure all of the doors had been locked. Brown testified that, as he approached the grill, he noticed that the overhead lights were off, that the lights were on behind the bar, in the pool area outside, and in the hallway outside the grill. An ice cream machine, a soda machine, and beer signs inside the grill also produced some light. Brown noted that, with this secondary lighting, "[the grill] is never totally dark." On cross-examination, Brown told PBS that there was "quite a bit of light," even though the overhead lights had been turned off.

¶ 5. Brown testified that, "as soon as [he] made the turn" into the doorway of the grill, he stumbled and fell over a chair positioned "right in the doorway." He testified that his whole body went over the chair, the chair turned over, and he hit the ground. He felt immediate pain in his knees and face, then he passed out. When he woke up, he noticed his knees were swollen, but there was no blood. He tried to stand up but fell and fainted again. When he woke up a second time, Brown crawled to his phone and called his brother, who arrived at the clubhouse to take him to St. Dominic Hospital.

¶ 6. On separate occasions at the hospital, and before he was given pain medication, Brown told a doctor and a nurse that he had been injured when he hit a chair while running up stairs at work. But he told Michael Barrett, Colonial's general manager, that he had been injured chasing a mouse through the grill. He later reiterated the mouse story to Grace Owens, a bartender at the clubhouse. However, at trial, Brown testified that he did not remember describing any of these alternative versions of the events.

¶ 7. At St. Dominic Hospital, Brown was diagnosed with a bilateral patellar tendon rupture in both knees and underwent surgery for the injuries a few hours after he was admitted. Brown spent three days recovering in the hospital; then, he was transferred to Methodist Rehabilitation Hospital, where he had two more operations and spent more than two months rehabilitating.

¶ 8. In December 2014, Brown filed a negligence action against PBS. When the trial concluded on March 10, 2016, the jury returned a verdict in favor of the defendant. After reviewing Brown's post-trial motions, the circuit court denied Brown's requests for relief and entered a final judgment on the jury verdict.

¶ 9. Brown timely appealed, raising five issues. Therein, Brown argued that the trial judge had abused his discretion by:

(1) overruling Brown's objection to a photo of a chair in the doorway to the grill, (2) denying Brown's request for a jury instruction that specifically mentioned that the overhead lights in the grill were turned off,
(3) allowing a defense expert in biomechanics to testify that Brown's claim that he suffered bilateral patellar tendon ruptures by walking into a chair was not "plausible,"
(4) excluding one answer from his treating physician's deposition testimony regarding the general possibility that there could be mistakes in medical records, and
(5) by responding to a note from a juror with a general instruction to continue deliberations.

Brown v. Prof'l Bldg. Servs., Inc. , --- So.3d ----, ----, 2017 WL 4641265, at *1 (Miss. Ct. App. Oct. 17, 2017). The Court of Appeals held that the trial court properly had ruled on Brown's claims and affirmed its ruling. The court first found issues (2), (4), and (5) to have been "well settled, and [that] their discussion and application to the facts of this case would not add value to the jurisprudence of this state." Id. at ----, at *2. (citing Gen. Motors Corp. v. Jackson , 636 So.2d 310, 311 (Miss. 1992) ). The court analyzed only issues (1) and (3) and discussed only the photograph of a chair in the doorway of the grill and the admissibility of testimony by Dr. Bain-"an expert witness in the field of biomechanics." Id. at ----, at *5. Finding that the circuit court appropriately had allowed the jury to consider both the photograph and Dr. Bain's testimony, the Court of Appeals affirmed the circuit court's verdict, noting that "[t]he jurors were capable of considering the photo and the uncomplicated testimony ... without being confused or misled." Id. at ----, at *5.

¶ 10. Aggrieved, Brown petitioned this Court for a writ certiorari . We granted certiorari to review whether the trial court erred in overruling Brown's objection to certain photographic evidence and expert testimony submitted by the defense.

DISCUSSION

I. Whether the trial court abused its discretion by allowing Exhibit 29 into evidence.

¶ 11. Before trial, Brown filed a motion in limine to exclude several pieces of evidence. Now before this Court is Exhibit 29: a photograph taken by defense counsel several years after the incident in an attempt to recreate the scene of the incident. The photograph was one of many photographs admitted into evidence by the defense to show the jury what the grill and doorway looked like. Unlike the other photographs, Exhibit 29 depicted a chair in the doorway which supported Brown's description of the scene on the night of the incident.

¶ 12. Exhibit 29's recreation was based on a July 2014 statement that Brown had made to his insurer with his counsel present, but later testimony conflicted with portions of the statement. The picture depicts a chair, similar to the one over which Brown claims he tripped, positioned in the doorway of the grill. Both Brown and PBS agreed that the chair should have been rotated 180 degrees from its position in the photograph. Brown also argued that the chair should have been positioned in a different location in the doorway, but testimony about the chair's exact placement in the doorway changed several times throughout the proceeding. At one point, Brown admitted that he did not see the chair at all prior to hitting it.

¶ 13. As reiterated by the Court of Appeals, the standard of review for the trial court's admission and exclusion of evidence is abuse of discretion. Id. at ----, at *4 (citing Tunica Cty. v. Matthews , 926 So.2d 209 (Miss. 2006) ). This Court has "long held that the admissibility of photographs is within the sound discretion of the trial court and that the trial judge has wide latitude and discretion." Id. (quoting Nelson v. Phoenix of Hartford Ins. , 318 So.2d 839, 843 (Miss. 1975).

A. The Evidentiary Standard for a Recreation Photograph

¶ 14. Applying the analysis in Beasley v. State , the Court of Appeals concluded that "some probative value is the only requirement needed to support a trial judge's decision to admit photographs into evidence." Beasley v. State , 136 So.3d 393, 401 (Miss. 2014). The court determined that the Beasley holding was directly applicable in that "the photo was consistent with and fairly depicted Brown's recorded statement," with minor "differences in the angle and positioning of the chair" which "could be 'carefully pointed out to the jury.' " Brown , --- So.3d at ----, 2017 WL 4641265, at *4 (citations omitted). However, the photographs in Beasley do not convey a scene and circumstances similar to the photograph presented in this case. In Beasley , the photographs at issue depicted a "crime-scene and autopsy" and were taken soon after the incident. Id. at 399. There, the Court had been charged with determining "whether to admit particularly graphic photographs into evidence"-not whether an innocuous picture of a chair, taken years after the incident, was admissible. Id. at 400. While some of its principles could apply loosely to the matter before us, the holding of Beasley is not directly on point to the issue before us.

¶ 15. Instead, Gulf, Mobile & Ohio Railroad v. Golden offers a more applicable evidentiary standard for photographic recreations. Golden dealt with photographs of the site where a train accident had occurred hours earlier. Photographs of the actual accident were not present in the record. Gulf, Mobile & Ohio R.R. v. Golden , 221 Miss. 253, 72 So.2d 446, 450 (1954). In determining the admissibility of photographs of this nature, the Golden Court held:

The mere fact that a photograph was taken at a time different from that in question does not render it inadmissible if the witness is able to verify it as a substantial representation of the conditions as they existed at the time in question. Nor does the fact that the conditions were somewhat changed before the photograph was taken [render] the photograph inadmissible if the changes were not material, and if the changes are carefully pointed out and brought to the jury's attention.

Id. (emphasis added). See also Nelson v. Phoenix of Hartford Ins. , 318 So.2d 839, 843 (Miss. 1975) (coming to a similar conclusion on the evidentiary standard for photographs of a building destroyed by a hurricane).

¶ 16. Brown was the only witness to his accident, but it was not an abuse of discretion to find Brown's testimony to have been a fair basis for the admission of the photographs. Although inconsistencies in Brown's statements existed regarding several specific aspects of the photographs, the general premise of the incident remained consistent: late at night, he walked into a chair sitting in the middle of the doorway. Therefore, this Court must determine whether (1) the photographic recreation is a substantial representation of the conditions as they existed at the time in question, and (2) whether the changes carefully were pointed out and brought to the jury's attention.

¶ 17. Both parties agree that the chair should have been rotated 180 degrees from what was shown in Exhibit 29 and that there is contradictory evidence regarding where the chair should have been placed in the doorway. Neither of these issues is material, and the photograph stands as a substantial representation of the alleged accident. Moreover, both issues were pointed out to the jury. Whether the chair was a few inches one way or the other, and whether Brown hit the left or right arm of the chair, is inconsequential.

¶ 18. For the first time, Brown argues in his appellate brief that the lighting of Exhibit 29 was inaccurate. He argues that the picture was taken during the day but the incident happened at night, and therefore the photograph was an inaccurate recreation of the incident. Brown argues that his motion in limine challenged the "relevance, authenticity, and accuracy" of the photograph, which preserved the lighting issue for review. We find this broad language was insufficient to preserve the issue for review.

¶ 19. During argument on the motion in limine and the subsequent trial objection, the parties focused on the placement of the chair, the angle of the chair, and the "advantageous" angle of the photograph; but there was never any discussion of the lighting of Exhibit 29. Brown made clear, specific objections about the misplaced chair in the photograph, but he never made specific objections about the lighting inaccuracies. As we previously have held, objections "on one or more specific grounds constitutes a waiver of all other grounds." Smith v. State , 986 So.2d 290, 290 (Miss. 2008) (quotation marks omitted).

¶ 20. In an even broader context, discussions regarding the inaccuracies of Exhibit 29 throughout the record focus exclusively on the chair. While there were several occasions where Brown discussed the lighting of the grill in reference to other photographs that recreated the accident, he never addressed lighting or it discrepancies during discussions of Exhibit 29. These discussions about the lighting in other photographs show that Brown was aware that the photographs taken by defense counsel had been brightly lit and that they had been inconsistent with alleged lighting at the time of the incident. But he never raised this point in a discussion about Exhibit 29, nor did he ever suggest that he took issue with this inaccuracy.

¶ 21. Objecting to the "relevance, authenticity, and accuracy" of the photograph was not a sufficient indication that the judge should have taken into account the photograph's lighting when considering whether it was a substantial representation of the scene it was meant to portray. Without more, the judge could not reasonably have known that lighting was an issue during the trial process. Therefore, the lighting inaccuracy was not preserved, and it is procedurally barred on appeal.

¶ 22. With this bar, the only issues before this Court concerning the photograph are Brown's claims of an erroneous camera angle and placement of the chair. Despite those inaccuracies, the photograph was a substantial representation of the incident and its inaccuracies were explained to the jury. As a result, we find that the court did not abuse its discretion in admitting Exhibit 29 into evidence.

B. The Court Order on Exhibit 29

¶ 23. In his order responding to Brown's motion in limine to exclude Exhibit 29 from evidence, the trial judge acknowledged that the scene of the incident was no longer accessible. With that in mind, he held that "the Court will permit the Defendant to offer one photo including the slight chair placement inaccuracy, but the inaccuracy shall be explained to the jury, either through witness testimony or through an agreed stipulation, so as to avoid any confusion to the jury." The trial court later allowed the photograph to be shown to the jury during defense counsel's opening argument.

¶ 24. The trial court provided two avenues for the photograph's admission as evidence, allowing it to be explained to the jury through either witness testimony or agreed stipulation. The parties did not stipulate to an explanation, so clarification via witness testimony was the only avenue by which the evidence could be admitted. The Court of Appeals' dissent argued that the defense's "brief explanation of the recreated picture to the jury [during open argument] does not comport to the trial judge's order regarding the admissibility of the photo." While this is accurate, the dissent overlooked Brown's witness testimony that served to explain the inaccuracies to the jury. The defense's cross-examination of Brown clearly addresses the two core inaccuracies, as discussed in the above section of this opinion:

Q. All right. So tell me, other than the chair being turned the wrong way, is the chair located where it was on September 28, 2012, around 8:00, 8:15, 8:30?
A. No it's not.
...
Q. Okay. So tell me where the chair was.
A. The arm was turned - the arm to the chair was turned towards the bar.
Q. Okay.
A. And it was closer to the door. The back padding of the chair was on the door - closer to the door.

¶ 25. Notably, Brown offered statements throughout discovery that conflicted with this testimony, stating specifically that he did not see the chair prior to hitting it. However, the court's order required only that the photograph's inaccuracy be "explained"; it did not require the explanation to be consistent with all other testimony. Furthermore, although Brown's explanation of the inaccuracies in the photograph occurred after the photograph was used by the defense, the order did not specify that the explanation of the inaccuracies needed to be done before it was admitted. It simply stated that "the inaccuracy shall be explained to the jury." We find that admission of the photograph into evidence complied with the trial court's order on the motion in limine .

II. Whether the trial court abused its discretion by finding Dr. Bain's testimony admissible .

¶ 26. PBS called Dr. Charles Bain to testify as an expert witness about the biomechanics of Brown's alleged chair collision. Dr. Bain received his undergraduate degree in nuclear engineering from the Royal Military College of Canada and his medical degree from Queen's University of Canada. After medical school, he practiced family and emergency medicine in Canada for nineteen years. Over the thirteen years leading up to trial, he worked as a consultant and expert witness for Biodynamic Research Corporation. He also coauthored six published articles in biodynamics and was an adjunct professor at the United States Air Force School of Aerospace Medicine, where he taught flight surgeons about injury mechanisms.

¶ 27. Dr. Bain was brought in by the defense to conduct an "injury causation analysis," which analyzed the likelihood that the alleged impact with the chair caused the bilateral patellar tendon ruptures. Dr. Bain did not do any simulations specifically tethered to the facts of this case and instead, discussed studies outlining the type and severity of incidents that typically result in a bilateral patellar tendon rupture. Dr. Bain compared those findings to Brown's alleged accident.

¶ 28. Dr. Bain testified that walking into and falling over a chair is inconsistent with causes the patellar of tendon rupture. He testified that motion such as "running vigorously," then suddenly stopping, is a common cause of a patellar tendon rupture in an "essentially healthy tendon." He also noted that activities like weightlifting also can create enough force to rupture the tendon. He concluded that it was "highly unlikely" that Brown's injury had been caused by his falling over a chair.

¶ 29. The admissibility of expert testimony is governed by Mississippi Rule of Evidence 702, which states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Miss. R. Evid. 702. See also Daubert v. Merrell Dow Pharm. Inc. , 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed. 2d 469 n.10 (1993).

¶ 30. Here, the parties do not dispute that Dr. Bain's qualifications and specialized knowledge rendered his testimony admissible in this case. Rather, Brown takes issue with whether Dr. Bain's testimony was based on sufficient facts or data and whether the testimony was the product of reliable principles and methods. "When reviewing a trial court's decision to allow or disallow evidence, including expert testimony, we apply an abuse of discretion standard." Illinois Cent. R.R. Co. v. Brent , 133 So.3d 760, 779 (Miss. 2013). "Unless this Court concludes that a trial court's decision to admit or exclude evidence was arbitrary and clearly erroneous, that decision will stand." Id. We find no error in allowing Dr. Bain's testimony.

¶ 31. Brown argued that Dr. Bain's conclusions were "sheer conjecture." Throughout trial and the subsequent appellate briefs, Brown attacked the sources that Dr. Bain used-primarily consisting of orthopedic journals-as insufficient to reach his conclusions. He also argued that Dr. Bain never conducted any tests or simulations about whether walking into a chair could result in a bilateral patellar tendon rupture. However, Brown did not object to Dr. Bain's testimony until the end of the third day of trial, so the record provides very little guidance on these claims. Responding to Brown's late objection, the trial court noted:

The plaintiff has been on notice for nearly five months of Dr. Bain's qualifications, opinions and methodology used in forming those opinions, which even included a multipage document detailing the other cases where he has provided expert testimony. Despite the notice, the plaintiff raised for the first time an objection concerning Dr. Bain yesterday.

Nothing in the record confirms that Dr. Bain's sources were sufficient to back his claims, but the record also does not provide enough evidence to suggest that the sources were lacking a scientific basis. With no other information available in the record, we rely upon the testimony that these articles came from "orthopedic journals." Such testimony is, at face value, consistent with other articles about the forces that might cause a bilateral patellar tendon rupture. Finding no contradictory evidence presented to suggest that these articles lacked a scientific basis, there is nothing to clearly prove that the trial court erred in finding that Dr. Bain's testimony was based on sufficient facts and was the product of reliable principles and methods.

¶ 32. While the strength of Dr. Bain's sources is unclear, the record indicates that Dr. Bain reliably applied the principles and methods to the facts of the case. His conclusions were not "sheer conjecture." His testimony first described the sorts of injuries that normally cause a bilateral patellar tendon rupture and clarified that such an injury requires a powerful force for it to occur. Then, he turned to Brown's collision with the chair and explained that the type and caliber of force in that collision were inconsistent with the causes of a tendon rupture, making it "highly unlikely" that Brown's injury had been caused by his falling over a chair.

¶ 33. Brown's final argument under this issue is that Dr. Bain failed to conduct any simulations or visit the scene of Brown's alleged accident to take measurements. Brown claims that such testing was necessary in this case because he "flipped" over the chair, making this more than just a simple fall. But Dr. Bain's testimony focused largely on the finding that Brown's accident did not involve the type of impact that would cause a bilateral patellar tendon rupture and that hitting the chair would not have created enough force to cause the injury. Brown provides no reasonable explanation regarding why his having flipped over the chair would necessitate a simulation. Therefore, the trial court did not abuse its discretion on this ground either.

¶ 34. With nothing in the record indicating that Dr. Bain's testimony deviated from the requirements of Mississippi Rule of Evidence 702, or that a simulation of the incident was necessary in this case, Brown failed to support his objections to the admission of Dr. Bain's testimony. Accordingly, the trial court did not abuse its discretion in admitting the evidence.

CONCLUSION

¶ 35. We hold that the Court of Appeals properly affirmed the circuit court's decision to allow the jury to consider the photograph marked as Exhibit 29 and Dr. Bain's expert testimony in its deliberations. Finding that the trial court did not abuse its discretion, we affirm the judgments of the Hinds County Circuit Court and the Court of Appeals.

¶ 36. AFFIRMED .

WALLER, C.J., RANDOLPH, P.J., COLEMAN, MAXWELL, CHAMBERLIN AND ISHEE, JJ., CONCUR. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J.

KING, JUSTICE, DISSENTING:

¶ 37. Because defense counsel was allowed to introduce an inaccurate and irrelevant staged photograph of the scene of the incident and because Brown sufficiently objected to the inaccuracies of the photograph, I respectfully dissent from the majority's conclusion that the trial court did not abuse its discretion in allowing the recreated photograph into evidence.

¶ 38. Brown's complaint alleged that employees of Professional Business Services (PBS) failed to place chairs in their proper positions under the tables and turned off the lights in the grill room, creating a dangerous condition that caused Brown to suffer physical harm. Thus, the lighting in the grill room, the visibility of the chair, and the position of the chair were major points of contention in Brown's case. However, several years after the incident occurred, counsel for defense staged the inside of the doorway and took photographs of the chair during daylight hours and from an optimum angle.

¶ 39. Although the majority finds that Brown failed to object that the lighting in the recreation photograph was inaccurate, I disagree. Counsel for Brown filed a motion in limine to exclude any attempt to publish photographs to the jury of the accident scene that had been taken by defense counsel as an alleged recreation of the accident scene. In the motion, Brown argued that the angles and positioning of the room and the chair were not accurate and that the scene had been photographed deliberately to favor PBS. At the hearing on the matter, Brown argued that the recreation photographs should be excluded because: 1) the pictures were taken by defense counsel; and 2) the photographs were not accurate and did not recreate the accident scene as it existed. Brown pointed out that the scene in the photographs had been staged to obtain an advantage demonstrated by the direction the chair had been turned and how the chair appear from the angle in the hallway. Defense counsel admitted that the chair had been turned the wrong way. Brown's counsel then stated:

It's a picture, so it's significant, you know. There's some cliche about what a picture is worth compared to our ability to explain that it's wrong. To his credit counsel admits that he made a mistake and it's not even positioned correctly, according to what we understand. So now they're contemplating showing a picture to the jury for them to look at, that shows something that's not accurate. And we're not sure why it's relevant anyway. We're not sure why they need it. It's certainly nothing that their experts have hinged any sort of opinion on or anything else. So I'm not certain why it's so crucial to bring it in. But if they contend it is, it at leas[t] has to be an accurate representation.

¶ 40. During opening statement, Brown's attorney again objected to the photograph, stating: "He's using one picture that vividly is not an accurate representation." The trial court overruled the objection. Defense counsel then was allowed to state to the jury: "I went to Colonial but the club had been closed at that point. And I put a chair right in the doorway. And that's the chair (indicating). Now, I messed up. The chair should - you see how it's facing right? It should be facing the left. And that's on me. But the only difference is the chair should be rotated 180 degrees and facing left instead of facing right .... And I submit to you, because anyone as they walk down the hallway, if there's a chair right in the doorway like that, you can see it. You're not going to trip over that chair." After Brown's testimony, Brown's counsel once more renewed the objection to the recreated photograph. Counsel for Brown contended that the chair was incorrectly placed and that the jury had sat through an entire cross-examination "having that image in their brain of a chair in a doorway that they're going to in closing argue the [plaintiff] should have seen, when it's just a fabrication...."

¶ 41. I believe that Brown's repeated objections regarding the accuracy of the photograph encompassed all issues that were not accurately portrayed, including the lighting in the grill room and during daylight hours. Counsel for Brown repeatedly objected that the photograph inaccurately portrayed the scene at the time of the incident. Brown also argued that the photograph was irrelevant and unauthentic. This language was broad enough to encompass the entirety of the inaccuracies of the photograph, including the lighting. Because the photograph was taken in daylight with the lights in the grill room on, because the photograph was taken at an inaccurate angle to show maximum visibility of the chair in the doorway, and because the photograph incorrectly portrayed the position of the chair, I believe the trial court abused its discretion in allowing the photograph to be introduced into evidence.

¶ 42. This Court, in Gulf, Mobile & Ohio Railroad Company v. Golden , 221 Miss. 253, 72 So.2d 446, 450 (1954), stated that the rule for photographs is that:

"Before a photograph may be admitted into evidence, it must be shown by extrinsic evidence to be a true and faithful representation of the place or subject it purports to represent as it existed at a time pertinent to the inquiry." 32 C.J.S., Evidence , § 715, page 620. The material inquiry is whether or not the photograph is a fair and accurate reproduction and representation of conditions as they existed at the time of the collision involved.

The Court continued that "the mere fact that a photograph was taken at a time different from that in question does not render it inadmissible if the witness is able to verify it as a substantial representation of the conditions as they existed at the time in question. " Id. (emphasis added).

¶ 43. In Givens v. State , 618 So.2d 1313, 1318 (Miss. 1993), this Court again affirmed the trial court's decision to refuse to admit photographs in evidence because the photographs "had great potential for confusing the jury as to the conditions which actually existed on the night in question." The defendant in that case had been arrested at night for tossing a plastic bag of crack cocaine from his pocket to the ground while a police officer had been shining his "stream light" on the defendant. Id. at 1315. The eight-month time lapse between the arrest and the photographs being taken did not concern the Court. Id. at 1318. Instead, the witness testimony showed that the conditions in the photographs were not substantially similar to the conditions on the night of the arrest. Id. The photographs taken by the defense failed to show a "stream light" flashlight on the defendant and failed to show the exact location where the defendant had been standing. Id. at 1316. Thus, the Court noted that the photographs had the potential to confuse the jury. Id. at 1317.

¶ 44. As in Givens , the differences in the witness testimony of the incident and the staged photograph had the potential for confusing and prejudicing the jury. Rule 403 of the Mississippi Rules of Evidence states that the trial court may exclude evidence "if its probative value is substantially outweighed by a danger of ... unfair prejudice [or] misleading the jury." Here, the photograph was taken during daylight hours with full overhead lighting in the grill room and was taken from an extreme angle designed to show maximum visibility of the chair in the doorway. Brown testified that he had been walking along the right-hand side of the wall when he turned right and tripped over the chair. However, defense counsel took a photograph of the chair from the opposite side of the wall, making the chair clearly visible in the picture. The defendant also was allowed to publish the inaccurate photograph to the jury in opening argument, without a foundation, and without a sponsoring witness. In addition, defense counsel was allowed to say during opening statement that, "if there is a chair right in the doorway like that, you can see it. You are not going to trip over that chair." I would find that any probative value of the introduction of the photograph was substantially outweighed by a danger of unfair prejudice and of misleading the jury.

¶ 45. Moreover, I believe that the staged photograph was irrelevant and thus inadmissible pursuant to Mississippi Rule of Evidence 402. Rule 402 states that "irrelevant evidence is not admissible." M.R.E. 402. Defense counsel had taken several photographs of the grill room, the hallway leading to the grill room, and the doorway, making the introduction of the staged photograph of the chair into evidence unnecessary. PBS could have argued its case sufficiently by introducing the nonprejudicial photographs of the chair, grill room, and doorway.

¶ 46. Brown's case rested on the contention that a combination of the misplaced chair, in addition to the darkened room, created a dangerous condition that caused Brown to suffer injuries. Brown repeatedly objected to the recreated photograph, arguing that it "sets a staged scene and is not an accurate depiction of the incident scene." I believe that Brown's objections to the inaccuracy of the photograph sufficiently encompassed the lighting issue for review. Therefore, I would find that the trial court abused its discretion in allowing the introduction of a staged photograph of the chair in the doorway from an advantageous angle, in daylight, and with the lights on in the grill room, would reverse the trial court's decision, and the decision of the Court of Appeals and would remand this case for a new trial.

KITCHENS, P.J., JOINS THIS OPINION.

      Griffis, P.J., Carlton, Fair and Greenlee, JJ., concur. Westbrooks, J., dissents with separate written opinion, joined by Lee, C.J., Irving, P.J., and Barnes, J. Tindell, J., Not Participating.


source: Caselaw Access Project

author: MAXWELL, JUSTICE, FOR THE COURT:

license: Public Domain

text:
    CITY OF CLINTON, Mississippi and Officer Michael Kelly v. Patrice TORNES
    NO. 2017-IA-00219-SCT
    Supreme Court of Mississippi.
    August 30, 2018
    ATTORNEYS FOR APPELLANTS: ROBERT O. ALLEN, JOHN CHADWICK WILLIAMS, WILLIAM ROBERT ALLEN, Brookhaven
    ATTORNEYS FOR APPELLEE: KELLY MARIE WILLIAMS, AAFRAM YAPHET SELLERS, Jackson
    BEFORE WALLER, C.J., MAXWELL AND ISHEE, JJ.
   MAXWELL, JUSTICE, FOR THE COURT:

¶ 1. This is an interlocutory appeal from the denial of summary judgment. Because the defendants-a municipality and its police officer-cannot be held liable for the plaintiff's claims under the Mississippi Tort Claims Act (MTCA), we reverse the denial of summary judgment and render judgment in the defendants' favor.

Background Facts and Procedural History

¶ 2. On the afternoon of May 11, 2015, Officer Michael Kelly was responding to a call that an intoxicated person was lying unconscious on the sidewalk outside the Days Inn in Clinton, Mississippi. While en route, his police vehicle collided with Patrice Tornes's car.

¶ 3. According to Officer Kelly, he drove south through the neighboring parking lot, which belongs to Tractor Supply Inc. Because some items in the parking lot blocked his view of the Day's Inn, "he pulled out further [sic] than normal so as to be able to see the subject that was the reason for his being there." Officer Kelly "stopped so he could survey the area and visually locate the individual from a distance before making personal contact with the subject." And as he was stopped, Tornes, who was traveling west on the road between the Day's Inn and Tractor Supply, clipped the push bumper of his police vehicle with her right wheels. But according to Tornes, Officer Kelly's vehicle was not stopped. Instead, Tornes "was proceeding in a travel lane in the parking lot when suddenly and without warning [her rear bumper] was struck by Officer Kelly's vehicle."

¶ 4. Tornes sued Officer Kelly and his employer, the City of Clinton, in the County Court of Hinds County. She claimed Officer Kelly's "reckless and negligent actions directly caused the subject accident." Specifically, she alleged Officer Kelly "caused his vehicle to be driven in a careless, negligent, and reckless manner and without due regard for the safety and convenience of Patrice Tornes, and without giving any warning sign or proper signal of the approach of said vehicle." And she asserted the City of Clinton was "vicariously liable for its employee's careless, negligent, and reckless operation of his vehicle while acting in the course and scope of his employment as an officer for the City of Clinton Police Department." She also claimed the City was liable for its own actions-specifically, "its negligent training of its employee in how to properly operate his motor vehicle in accordance for the safety of others" and its negligent entrustment of the subject vehicle to Officer Kelly on the day the wreck occurred.

¶ 5. Both Officer Kelly and the City moved for summary judgment, claiming immunity from suit. See Mitchell v. City of Greenville , 846 So.2d 1028, 1029 (Miss. 2003) ("[I]mmunity is a question of law and is a proper matter for summary judgment."). Because Tornes alleged-and the uncontradicted evidence supported-that Officer Kelly was acting within the course and scope of his employment at the time of the wreck, Officer Kelly asserted that he could not be held individually liable under the MTCA. So he asked to be dismissed as an individual defendant. The City, also citing the MTCA, argued it could not be vicariously liable for Officer Kelly's actions. Officer Kelly was engaged in a police-protection activity when the wreck occurred. So the City enjoyed police-protection immunity, because his alleged actions did not rise to the level of reckless disregard. Further, the City argued Tornes's claims based on the City's own allegedly negligent actions were barred by discretionary-function immunity. After a hearing focused on the City's police-protection-immunity claim, the county court denied summary judgment to both defendants on all claims.

¶ 6. Officer Kelly and the City sought an interlocutory appeal, which this Court granted. See id. (holding that, because MTCA immunity "is an entitlement not to stand trial rather than a mere defense to liability," this issue "should be resolved at the earliest possible stage of litigation").

Discussion

¶ 7. This Court reviews the denial of summary judgment de novo, viewing all evidence in the light most favorable to the nonmovant-in this case Tornes. Mitchell , 846 So.2d at 1029-30. But even when the evidence is viewed in her favor, Tornes's claims cannot survive summary judgment. The MTCA provides the exclusive remedy for Tornes's action. Miss. Code Ann. § 11-46-7(1) (Rev. 2012). And under the MTCA, neither Officer Kelly nor the City of Clinton can be held liable.

I. No Individual Liability

¶ 8. First, Officer Kelly cannot be held individually liable. While the MTCA permits a government employee to "be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable," the MTCA makes clear "no employee shall be held personally liable for acts or omissions occurring within the course and scope of the employee's duties." Miss. Code Ann. § 11-46-7(2) (Rev. 2012) (emphasis added). Indisputably, Officer Kelly was acting within the course and scope of his employment as a police officer when the wreck occurred. So his presence as a named defendant stems only from his being a representative of the City. Tornes has no claim against him individually.

II. Police-Protection Immunity

¶ 9. Second, to the extent Tornes seeks to hold the City liable for Officer Kelly's actions, the City enjoys police-protection immunity.

¶ 10. The MTCA generally waives "the immunity of the state and its political subdivisions from claims for money damages arising out of the torts of such governmental entities and the torts of their employees while acting within the course and scope of their employment[.]" Miss. Code Ann. § 11-46-5(1) (Rev. 2012). But it exempts certain claims from that immunity waiver. Miss. Code Ann. § 11-46-9 (Rev. 2012). Specifically:

A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim ... [a]rising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury[.]

Miss. Code Ann. § 11-46-9(1)(c). Again, it is not disputed that, when the wreck occurred, Officer Kelly had been engaged in the performance of police-protection activities-responding to a call about an unconscious person. So unless he "acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of the injury," the City cannot be held liable. Id.

¶ 11. Quoting Maye v. Pearl River County , Tornes suggests " 'reckless,' according to the circumstances, may mean desperately heedless, wanton or willful, or it may mean only careless, inattentive or negligence." Maye v. Pearl River Cty. , 758 So.2d 391, 393 (Miss. 1999) (emphasis in original). And because Officer Kelly's actions fall in that latter careless, inattentive, or negligent category, there is no police-protection immunity.

¶ 12. But what Tornes overlooks is that, in the very next sentence in Maye , the Court clarifies that, while reckless generally may mean wanton or willful or it may mean negligence, "[i]n the context of the statute"-i.e., Section 11-46-9(1)(c) -"reckless must connote 'wanton or willful,' because immunity lies for negligence ." Id. at 393-94 (emphasis added). See also Maldonado v. Kelly , 768 So.2d 906, 909 (Miss. 2000) ("Police officers and fire fighters are more likely to be exposed to dangerous situations and to liability, therefore, public policy requires that they not be liable for mere negligence.").

¶ 13. Thus, to be "reckless" for purposes of Section 11-46-9(1)(c), the conduct must be "willful or wanton," not merely negligent. Maye , 758 So.2d at 393-94. "Reckless disregard occurs when the conduct involved evinced not only some appreciation of the unreasonable risk involved, but also a deliberate disregard of that risk and the high probability of harm involved." City of Laurel v. Williams , 21 So.3d 1170, 1175 (Miss. 2009) (internal quotations and citation omitted). While the conduct does not have to be intentional, "[r]eckless disregard usually is accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow." Rayner v. Pennington , 25 So.3d 305, 309 (Miss. 2010) (quoting Miss. Dep't of Pub. Safety v. Durn , 861 So.2d 990, 995 (Miss. 2003) ).

¶ 14. In Maye , this Court applied this higher-than-negligence standard to find a deputy sheriff had acted with reckless disregard when he blindly backed out of a parking space, up an incline, and rammed into a car that had turned into the parking lot. In that case, "[w]ith conscious indifference to the consequences," the deputy sheriff had "backed out knowing he could not see what was behind him." Maye , 758 So.2d at 395. Further, when he "backed out of the parking space and up the incline," he "knew he could not see cars coming into the lot," and "he knew checking his mirrors would not let him see cars pulling into the lot." Id. And from the severity of damage to the car and injuries to the passenger, it was obvious the deputy was "going much too fast to be backing up the entrance to the parking lot when he could not see what was behind him." Id. Based on the evidence, this Court held "these actions rise above simple negligence to the level of reckless disregard of the safety and well-being of others." Id. (emphasis added).

¶ 15. Here, the facts do not support the same level of conscious indifference to the consequences. Since this is the summary-judgment stage, we assume Tornes's version of events is true-that Officer Kelly hit her bumper and not vice versa. But unlike Maye , from the level of damage to Tornes's car, it is not obvious he was going "much too fast." Id. Further, the reason he, in his own words, "pulled out further [sic] than normal" was because his view was obstructed by objects in the parking lot. Instead of Maye , this case is more akin to Maldonado . There, a police officer stopped at a two-way stop, looked both ways, and pulled out into the intersection. Maldonado , 768 So.2d at 908. This intersection was a known dangerous intersection, because the sight line to approaching traffic was partially blocked. Sure enough, the officer did not see an approaching car and hit it. While the officer "may have been negligent," this Court held that his actions did "not rise to the level of reckless disregard." Id. at 911.

¶ 16. Similarly, in Joseph v. City of Moss Point , 856 So.2d 548, 550 (Miss. Ct. App. 2003), a city police officer was reading a warrant while stopped at a red light. When the cars to his left started moving, he assumed the light had turned green and instinctively hit the gas. But the cars to his left were in a turn lane that had been given a green arrow. The light for his lane remained red. And the officer rear-ended the stationary car in front of him. While the officer had certainly been "remiss in paying attention to traffic directly in his lane," he had not been reckless. Id. at 551. Instead, the Court of Appeals found that he had been "guilty of simple negligence and nothing more, which kept him under the immunity umbrella of the [MTCA]." Id.

¶ 17. The evidence, when viewed in Tornes's favor, shows Officer Kelly had been remiss but not reckless as he drove through the parking lot to the Days Inn. Because his actions did not rise above simple negligence, police-protection immunity applied. And the City is entitled to summary judgment on Tornes's claims based on Officer Kelly's actions.

III. Discretionary-Function Immunity

¶ 18. Finally, the City is entitled to summary judgment on Tornes's claims it acted negligently in training Officer Kelly and entrusting him with one of its police vehicles.

¶ 19. We note prior opinions have found that training police officers and equipping them with police vehicles are "activities relating to police protection" entitled to police-protection immunity. See, e.g. , McGrath v. City of Gautier , 794 So.2d 983 (Miss. 2001) (holding that the maintenance of a police vehicle was a police-protection activity entitled to police-protection immunity); Hayes v. Univ. of S. Miss. , 952 So.2d 261 (Miss. Ct. App. 2006) (holding that the training of a student police corps was a police-protection activity entitled to police-protection immunity). But for its own allegedly negligent actions, the City did not assert police-protection immunity. Instead, citing City of Jackson v. Powell , 917 So.2d 59 (Miss. 2005), the City has claimed discretionary-function immunity.

¶ 20. Under Section 11-46-9(1)(d), the City "shall not be liable for any claim ... [b]ased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused[.]" Miss. Code Ann. § 11-46-9(1)(d). Very recently, this Court returned to its traditional, two-part, public-policy function test to determine when Section 11-46-9(1)(d) applies. Wilcher v. Lincoln Cty. Bd. of Supervisors , 243 So.3d 177 (Miss. 2018). Under this test, "[t]his Court first must ascertain whether the activity in question involved an element of choice or judgment." Id. at 187 (quoting Miss. Transp. Comm'n v. Montgomery , 80 So.3d 789, 795 (Miss. 2012) ). "If so, this Court also must decide whether that choice or judgment involved social, economic, or political-policy considerations." Id.

¶ 21. Applying this test to the claim of negligent supervision of police officers, this Court has answered both questions affirmatively. Powell , 917 So.2d at 74. This Court has held that a municipality must "exercise its judgment in the manner in which it chooses to supervise its officers." Id. And "[t]here is no doubt that the choice to employ and the manner of supervision of police officers does affect public policy[.]" Id. Thus, "[t]he manner in which a police department supervises, disciplines and regulates its police officers is a discretionary function of the government[.]" Id.

¶ 22. Tornes's claims that the City was negligent in training Officer Kelly to operate a police vehicle and entrusting Officer Kelly with a police vehicle both challenge "[t]he manner in which a police department supervises, disciplines and regulates its police officers[.]" Id. So through these claims, Tornes seeks to hold the City liable for its exercise of a discretionary function-actions which are clearly immune under Section 11-46-9(1)(d).

Conclusion

¶ 23. Because the MTCA exempts both Officer Kelly and the City from liability on Tornes's claims, the trial court erred in denying their motion for summary judgment. We reverse the judgment of the trial court and render a judgment in both defendants' favor.

¶ 24. REVERSED AND RENDERED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

      Miss. Code Ann. § 11-46-1 et seq. (Rev. 2012 & Supp. 2017).

      It has never even been suggested that Tornes was engaged in criminal activity at the time she was injured.

      Notably, Tornes does not attempt to rebut or refute the City's discretionary-function-immunity claim on appeal. Instead, she merely argues that she presented sufficient evidence to the trial court to support her claim of negligent entrustment. But the fact she can otherwise establish a negligence claim against the City matters not. Discretionary-function immunity shields the City from liability "whether or not the discretion be abused." Miss. Code Ann. § 11-46-9(1)(d).


author: GREENLEE, J., FOR THE COURT:

text:
    Willie Carl PICKETT a/k/a Willie Pickett a/k/a Willie C. Pickett and Jacarrus Antyone Pickett a/k/a Jacarrus Pickett a/k/a Antyone Pickett a/k/a Jacarrus A. Pickett, Appellants v. STATE of Mississippi, Appellee
    NO. 2016-KA-00932-COA
    Court of Appeals of Mississippi.
    February 6, 2018 Rehearing Denied June 12, 2018 Certiorari Denied August 30, 2018
    ATTORNEYS FOR APPELLANTS: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK, ROBERT GREER WHITACRE
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH, JACKSON
    EN BANC.
   GREENLEE, J., FOR THE COURT:

¶ 1. Jacarrus Pickett and Willie Pickett were tried jointly and convicted of attempted first-degree murder. On appeal, they argue: (1) the indictment was improperly amended; (2) the indictment, as amended, is void; (3) the jury was improperly instructed on the elements of attempted murder; (4) Mississippi's attempted-murder statute is unconstitutional; and (5) the verdict was against the weight and sufficiency of the evidence. We find no error and affirm.

FACTS

¶ 2. Walter Culpepper, James Taylor, and Decarlos Clark worked as garbage men in Meridian, Mississippi. On October 31, 2013, the men were assigned a route Clark had never worked. Clark told his supervisor that he could not go on the route because of a dispute with some men in that area. The supervisor told him to go on the assigned route or go home. So Clark worked the route with Culpepper and Taylor. Culpepper drove the truck, while Taylor and Clark rode on the back, loading garbage into the truck. Taylor testified that Clark appeared nervous and jittery. As they approached an area near Oakland Heights Elementary School, Clark told Taylor he had been in an altercation with someone in that area. Taylor then saw a tall, muscular man running toward the truck with a pistol. Clark recognized the man as Willie. Clark testified that Willie yelled at him, "I gotcha[.] I'm fixing to kill you, B****." Clark jumped into the cab of the truck and hid under the dash. Willie told Culpepper and Taylor to get out of the way if they did not want to be involved. Culpepper and Taylor fled. According to Clark, Willie fired multiple shots at the garbage truck. Clark testified that Willie only retreated either when his gun jammed or when he ran out of bullets. No one was struck.

¶ 3. Clark testified that he exited the truck when he thought Willie was gone. Culpepper had returned at that point and asked Clark if he was okay. Just as Clark responded that he was okay, he heard Jacarrus yell, "Turn around, Willie, he ain't dead. But I'm fixing to kill him." Clark testified that Jacarrus then fired approximately fifteen rounds at him. Clark ran up a hill and escaped uninjured. Culpepper corroborated Clark's testimony that all the shots were directed at Clark. Investigators recovered thirteen shell casings near the garbage truck, and found eight bullet holes in the hood, side mirror, windshield, and side window.

¶ 4. Jacarrus and Willie were convicted in the Lauderdale County Circuit Court of attempted first-degree murder. Jacarrus was sentenced to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC), with ten years suspended, and five years of postrelease supervision. Willie was sentenced to thirty years in the custody of the MDOC, with ten years suspended, and five years of postrelease supervision. Posttrial motions were denied, and this appeal followed. Jacarrus and Willie have submitted separate briefs raising the same issues for appeal. Willie joins all arguments presented by Jacarrus, whose brief was filed first.

DISCUSSION

I. Amended Indictment

¶ 5. Jacarrus and Willie first argue that the circuit court erroneously allowed the State to amend the indictment on the second day of trial. "The circuit court's decision to allow an indictment to be amended is a question of law," which we review de novo. Williams v. State , 131 So.3d 1174, 1176-77 (¶ 6) (Miss. 2014) (quoting Powell v. State , 80 So.3d 849, 852 (¶ 9) (Miss. Ct. App. 2012) ).

¶ 6. An indictment may be amended "to correct defects of form; however, defects of substance must be corrected by the grand jury."

Patton v. State , 109 So.3d 66, 80-81 (¶ 44) (Miss. 2012). An amendment to form does not "alter facts [that] are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant's case." Id. "The test for whether an amendment to the indictment will prejudice the defense is whether the defense as it originally stood will be equally available after the amendment is made." Id. "Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised." URCCC 7.09.

¶ 7. The original indictment charged that on October 31, 2013, Jacarrus and Willie "wil[l]fully, unlawfully, and feloniously, with deliberate design to effect the death of ... Clark, did attempt to kill and murder ... Clark ... by shooting him." On the second day of trial, after Culpepper had testified, the State made an ore tenus motion to amend the indictment by inserting the word "at" between the words "shooting" and "him," so the indictment would read that Jacarrus and Willie attempted "to kill and murder" Clark "by shooting at him," rather than "by shooting him." (Emphasis added). The prosecutor stated that the omission of the word "at" was a clerical error. Jacarrus and Willie objected. The trial court gave defense counsel additional time to research the issue, and after hearing arguments, granted the motion to amend.

¶ 8. Jacarrus and Willie argue that their defenses were prejudiced because, after the indictment was amended, they had to defend against shooting "at" Clark, rather than "shooting Clark." We cannot find the amendment altered the substance of the indictment or unfairly prejudiced the defense. Whether Clark was actually shot was not a question-it is undisputed that he was not. Nonetheless, Jacarrus and Willie assert that part of their defense strategy was to defend against the indictment's assertion that they attempted to kill Clark "by shooting him." During voir dire, Willie's counsel told the venire that it was "very hard to believe" that Clark was "shot at dozens of times, but was not shot." Arguably, this statement standing alone could indicate that Willie's defense was that he did not succeed in striking Clark with a bullet. However, further statements of counsel indicate otherwise.

¶ 9. Willie's counsel went on to state during voir dire that "the State has to prove that Willie ... shot at ... Clark in an effort to kill him[.]" (Emphasis added). During opening statements, Willie's counsel told the jury that the State had to prove that "Clark was shot" to find Willie guilty. The State objected, arguing that it never alleged that Clark was shot; rather, the indictment stated that Clark was "shot at." The judge said, "it does say 'by shooting him.' " Willie's counsel continued, "The only person that is going to say he got shot at or shot or whatever he is going to say, is a convicted felon[.]" (Emphasis added). Jacarrus's counsel, during voir dire, stated that an alibi witness would testify that Jacarrus was at home when "Clark was being shot at, or claims to have been shot at[.]" Then, during opening statements, Jacarrus's counsel stated, "the State is going to say that [Jacarrus] was shooting at ... Clark or shot him with the intent to kill him." Counsel continued that Jacarrus was "falsely accused of shooting at [Clark]." These are just some of the instances where defense counsel told the jury that Clark was "shot at," consistent with the amendment to the indictment, prior to the indictment being amended.

¶ 10. The amendment to the indictment reflected the language used at trial and did not prejudice the defense. The amendment did not change the nature of the charges and, thus, did not deprive Jacarrus or Willie of a fair opportunity to present their defense. Also, Jacarrus and Willie cannot claim unfair surprise, as they knew at all times that Clark was not actually shot, only shot at, and that this was the basis for the charges. This issue is without merit.

II. Sufficiency of the Amended Indictment

¶ 11. Jacarrus and Willie argue that the amended indictment failed to charge the essential elements of attempted murder. "An indictment must contain (1) the essential elements of the crime charged, (2) sufficient facts to fairly inform the defendant of the charge which he must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense." Young v. State , 119 So.3d 309, 313 (¶ 11) (Miss. 2013). The sufficiency of an indictment is reviewed de novo. Id.

¶ 12. Mississippi's attempted-murder statute states: "Every person who shall design and endeavor to commit an act which, if accomplished, would constitute an offense of murder under [s]ection 97-3-19, but shall fail therein, or shall be prevented from committing the same, shall be guilty of attempted murder[.]" Miss. Code Ann. § 97-1-7(2) (Rev. 2014) (emphasis added). Mississippi Code Annotated section 97-3-19(1)(a) (Supp. 2017) states the killing of a human being shall be first-degree murder "[w]hen done with deliberate design to effect the death of the person killed, or of any human being."

¶ 13. The amended indictment charged that on October 31, 2013, Willie and Jacarrus "wil[l]fully, unlawfully, and feloniously, with deliberate design to effect the death of ... Clark, did attempt to kill and murder ... Clark, a human being, without authority of law and not in necessary self-defense, by shooting at him." Jacarrus and Willie argue the amended indictment is deficient because it does not charge a specific "act which, if accomplished, would constitute an offense of murder." Rather, Jacarrus and Willie argue that the specific act charged-"shooting at" Clark-if accomplished, would constitute aggravated assault. See Miss. Code Ann. § 97-3-7(2)(a) (Supp. 2017).

¶ 14. We discussed the required proof for attempt versus the required elements of an attempt indictment in Spearman v. State , 58 So.3d 30, 36 (¶ 20) (Miss. Ct. App. 2011), stating:

An attempt has this required proof: (1) an attempt to commit a particular crime, (2) a direct ineffectual act done toward its commission[,] and (3) the failure to consummate its commission. Though those three elements must be proved, the [s]upreme [c]ourt ... ha[s] held that [only] two elements need to be charged: (1) the intent to commit the offense, and (2) an overt act toward its commission.

(Quoting Neal v. State , 936 So.2d 463, 467 (¶ 13) (Miss. Ct. App. 2006) ).

¶ 15. Under the two factors in Spearman , the indictment was required to charge that: (1) Jacarrus and Willie intended to murder Clark, and (2) they committed an overt act toward murdering him. Id. The indictment charged that (1) they acted "with deliberate design to effect the death" of Clark by attempting to murder or kill him, and (2) they committed the overt act of "shooting at him." While Jacarrus and Willie argue that the indictment fails to specify whether they "failed" or were "prevented from" committing the act, the indictment uses the word "attempt," which has been held to put "a defendant on notice that the State will prove that the crime was not completed." Id. As the indictment charged that Jacarrus and Willie "attempt[ed] to kill and murder" Clark, there was no need for it to also specify that they failed or were prevented from completing the act. This issue is without merit.

III. Attempted-Murder Jury Instruction

¶ 16. Jacarrus and Willie argue that the elements jury instruction failed to include all the statutory elements of attempted murder. "Failure to instruct the jury on the essential elements of the crime is plain error." Rogers v. State , 95 So.3d 623, 632 (¶ 30) (Miss. 2012).

¶ 17. The attempted-murder elements instructions required the jury to find beyond a reasonable doubt that:

1. On or about October 31, 2013, in Lauderdale County, Mississippi,
2. The [d]efendant, ... individually or while aiding and abetting and/or acting in concert with another, did willfully and unlawfully attempt to murder ... Clark
3. By shooting at him with a firearm,
4. With deliberate design to effect death,
5. Without authority of law and not in necessary self-defense[.]

¶ 18. Jacarrus and Willie argue, as they did in issue two, that "shooting at" someone is not "an act which, if accomplished, would constitute ... [first-degree] murder." Miss. Code Ann. § 97-1-7(2). Again, attempted murder is committed when the defendant "design[s] and endeavor[s] to commit an act which, if accomplished, would constitute ... [first-degree] murder ..., but shall fail therein, or shall be prevented from committing the same[.]" Id. And first-degree murder is the "killing of a human being without the authority of law by any means or in any manner ... [w]hen done with deliberate design to effect the death of the person killed, or of any human being[.]"

¶ 19. In Peyton v. State , 286 So.2d 817, 818 (Miss. 1973), Roosevelt Peyton was found guilty of attempted murder. Peyton went to the intended victim's home armed with a pistol, yelled that he was going to kill everyone at the home, and kicked the front door partially open. Id. at 820. The intended victim shot and injured Peyton; Peyton never fired a shot. Id. The supreme court upheld Peyton's attempted-murder conviction, finding that he "committed overt acts toward the consummation of the crime by attempting to forcibly enter his victim's home after arming himself with a deadly weapon," and "was prevented from carrying out his intent to murder only because his intended victim shot him first." Id. ; see also Duke v. State , 340 So.2d 727, 732 (Miss. 1977) (affirming an attempted-murder conviction in a murder-for-hire case).

¶ 20. Jacarrus and Willie went one step further than Peyton. Not only did they approach Clark with guns drawn, verbally threaten to kill him, and say that they wanted him dead, they fired multiple shots at him as he tried to hide and escape. We find that Jacarrus's and Willie's acts of "shooting at" Clark "with a firearm" with the deliberate design to effect Clark's death are acts, which, if accomplished, would constitute first-degree murder. The jury was correctly instructed. This issue is without merit.

IV. Constitutionality of the Attempted-Murder Statute

¶ 21. Jacarrus and Willie argue that the attempted-murder statute is vague and overly broad, and violates the Eighth Amendment's prohibition against cruel and unusual punishment. No challenge was made to the statute at trial. However, we review this issue on appeal, as a conviction under an unconstitutional statute violates the Due Process Clause and is excepted from any procedural bar. Fulgham v. State , 47 So.3d 698, 700 (¶ 6) (Miss. 2010) ; Williams v. State , 154 So.3d 64, 66 (¶ 9) (Miss. Ct. App. 2014).

¶ 22. "[T]he power to create and define criminal offenses rests exclusively within the authority of the Legislature." Wilcher v. State , 227 So.3d 890, 895 (¶ 28) (Miss. 2017) (citing State v. Russell , 358 So.2d 409, 411 (Miss. 1978) ). "The Legislature has the power to define and punish any act as criminal unless limited by constitutional provisions." Id. (citing Brawner v. State , 947 So.2d 254, 268 (¶ 42) (Miss. 2006) ). The challenging party must prove a statute's unconstitutionality beyond all reasonable doubt. Id. Even if the challenging party so proves, this Court must "uphold the statute, if possible, by placing a reasonable construction on it which would render it constitutional." Id.

¶ 23. A statute is unconstitutionally vague and violates due process if "persons of common intelligence must guess at its meaning and differ as to its application." Id. at 896 (¶ 29) (citation and internal quotation marks omitted). Likewise, a statute is void for vagueness if it "encourages arbitrary and erratic arrests and convictions." Id. "It is well established that vagueness challenges [that] do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand." Hill v. State , 853 So.2d 100, 103 (¶ 11) (Miss. 2003) (quoting United States v. Mazurie , 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975) ).

¶ 24. A statute is "unconstitutionally overbroad if it 'does not aim specifically at evils within the allowable area of [s]tate control but, on the contrary sweeps within its ambit other activities' protected by the First Amendment." Wilcher , 227 So.3d at 895 (¶ 26) (quoting Thornhill v. Alabama , 310 U.S. 88, 97, 60 S.Ct. 736, 84 L.Ed. 1093 (1940) ). "[A] statute's overbreadth [must] be substantial, not only in an absolute sense, but also relative to the statute's plainly legitimate sweep." Id. (quoting United States v. Williams , 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) ).

¶ 25. Section 97-1-7(2) does not implicate any First Amendment freedoms, so we analyze it under the facts of the present case. Ample testimony was presented that Jacarrus and Willie clearly intended to do what the statute forbids-they unlawfully shot at Clark with deliberate design to effect Clark's death. Witnesses heard Willie say, "I gotcha[.] I'm fixing to kill you, B****," as he ran toward Clark with a gun. Clark hid, and Willie told the other men present to get out of the way if they did not want to be involved. Willie then fired at Clark multiple times, only stopping when either his gun jammed or ran out of bullets. Once Clark came out from hiding, he saw Jacarrus, who, seeing that Willie had not successfully killed Clark, said, "Turn around, Willie, he ain't dead. But I'm fixing to kill him." Jacarrus then fired multiple shots at Clark. It is clear that the attempted-murder statute was intended to punish the crimes committed. No person of common intelligence would have to guess at its meaning or would differ as to its application, nor does the statute encourage arbitrary and erratic arrests. Thus, the statute is not unconstitutionally vague. Nor is the statute overly broad, as it does not "sweep[ ] within its ambit" other protected rights.

¶ 26. The statute also does not violate the Eighth Amendment. Jacarrus and Willie argue that the attempted-murder statute imposes a greater sentence for essentially the same crime as attempted aggravated assault. However, our supreme court has held that:

[e]ven where there are two statutes covering the same crime, and there is a difference in the penalty between the two statutes, the [S]tate is under no obligation to prosecute under the statute with the lesser penalty. It may choose to prosecute under either, and so long as the choice is clear and unequivocal the defendant has no right to complain.

Hye v. State , 162 So.3d 750, 758 (¶ 25) (Miss. 2015) (citation omitted). "[T]he responsibility to determine the charges" is left to the State alone. Id. at (¶ 26). The difference in sentencing between the two statutes does not violate the Eighth Amendment. This issue is without merit.

V. Weight and Sufficiency of the Evidence

¶ 27. When reviewing the legal sufficiency of the evidence, we consider all evidence in the light most favorable to the State. Bush v. State , 895 So.2d 836, 843 (¶ 16) (Miss. 2005) (abrogated on other grounds by Little v. State , 2014-CT-01505-SCT, --- So.3d ----, ----, 2017 WL 4546740, at *3 (¶ 19) (Miss. Oct. 12, 2017) ). Credible evidence consistent with guilt must be accepted as true. Id. The State receives the benefit of all favorable inferences reasonably drawn from the evidence, and all matters of weight and credibility are resolved by the jury. Id. Reversal is proper when reasonable and fair-minded jurors could only find the accused not guilty. Id.

¶ 28. When reviewing the weight of the evidence, "we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Id. at 844 (¶ 18). The evidence is viewed in the light most favorable to the verdict. Id. All evidence consistent with the defendant's guilt, along with any reasonable inferences that might be drawn from the evidence, is accepted as true. Id.

¶ 29. Clark, Culpepper, and Taylor testified to the events surrounding the shooting. Clark testified that he did not want to go on the assigned garbage route because he had gotten into an altercation with some men in that area. Taylor confirmed that Clark was nervous and jittery as they approached an area near Oakland Heights Elementary School, and Clark told Taylor he had been in an altercation with someone near there. Taylor saw a man running toward the truck with a pistol. Clark, who recognized the man as Willie, heard Willie say, "I gotcha[.] I'm fixing to kill you, B****." Clark jumped into the cab of the truck and hid under the dash. Willie told Culpepper and Taylor to get out of the way if they did not want to be involved. Willie then fired multiple shots at the garbage truck. Clark testified that he exited the truck when he thought Willie was gone. Jacarrus then appeared and yelled, "Turn around, Willie, he ain't dead. But I'm fixing to kill him." Jacarrus then fired multiple rounds at him. Clark testified that all shots were directed at him, and Culpepper corroborated this testimony. Investigators recovered thirteen shell casings near the garbage truck, and discovered eight bullet holes in the hood, side mirror, windshield, and side window.

¶ 30. Giving the State the benefit of all favorable inferences and viewing the evidence in the light most favorable to the verdicts, the verdicts were not against the weight or sufficiency of the evidence. This issue is without merit. The attempted-murder convictions are affirmed.

¶ 31. AFFIRMED.

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

      The Uniform Rules of Circuit and County Court relative to criminal practice were preempted by the Mississippi Rules of Criminal Procedure, effective July 1, 2017. We apply the former rules, as they were in effect at the time of trial.

      The statutory sentence for attempted murder is twenty years to life. Miss. Code Ann. § 97-1-7(2). The sentence for attempted aggravated assault is up to twenty years. Miss. Code Ann. § 97-3-7(2)(a). On their attempted-murder convictions, Jacarrus was sentenced to twenty-five years, with ten years suspended, and five years of postrelease supervision; and Willie was sentenced to thirty years, with ten years suspended, and five years of postrelease supervision.


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

text:
    Tawana Terrell JOHNSON a/k/a Tawana Johnson, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01319-COA
    Court of Appeals of Mississippi.
    March 27, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: HUNTER NOLAN AIKENS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BILLY L. GORE
    BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Tawana Terrell Johnson appeals her conviction for possession of less than one kilogram but more than thirty grams of marijuana with the intent to transfer or sell. Johnson argues that her prior drug convictions were improperly admitted into evidence, the jury's verdict was based on insufficient evidence, and it was contrary to the overwhelming weight of the evidence. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Around 1:00 a.m. on April 26, 2014, Deputy Thomas Brea of the DeSoto County Sheriff's Department pulled over Johnson's rental car traveling south on I-55 for swerving over the fog line. Brea later identified that he approached the car and "as soon as [he] made contact with [Johnson], [he] could smell the strong odor of marijuana coming from inside the vehicle, and [he] had her exit the vehicle at that time." Once out of the car, Brea questioned Johnson about a bulge under her shirt. Johnson responded that it was money she had earned in Memphis and voluntarily surrendered it upon Brea's request.

¶ 3. Brea asked Johnson if there was marijuana in the car, and she answered in the negative. Brea approached the driver's side of the car where he saw more cash and a black digital scale in the cupholder between the front seats. Brea then opened a backpack on the passenger side floorboard. The backpack contained more money, three clear plastic bags containing what was later identified as marijuana, and additional plastic bags buried beneath personal items belonging to Johnson. The contents of just two of the three plastic bags were later analyzed. They contained 69.55 grams of marijuana.

¶ 4. After discovering the money totaling $10,672; a digital scale; 69.55 grams of marijuana; and additional plastic bags in the car, Brea walked over to Johnson, who then immediately turned and placed her hands behind her back without being prompted. Brea then handcuffed her and took her into custody.

¶ 5. Johnson did not testify at trial. However, over her objection, the trial court allowed the State to introduce evidence of Johnson's 2008 convictions for possession of marijuana and hydrocodone with intent to sell. The jury was instructed on the crime of possession with intent and the lesser-included crime of simple possession. The jury found Johnson guilty of possession with intent to transfer or sell less than one kilogram but more than thirty grams of marijuana.

¶ 6. The trial court sentenced Johnson as a nonviolent habitual offender and a subsequent-drug offender to ten years in the custody of the Mississippi Department of Corrections.

ANALYSIS

I. Whether the trial court erred when it allowed the State to introduce evidence of Johnson's prior drug convictions.

¶ 7. Johnson argues that the trial court erred in admitting her prior drug-sale convictions into evidence. "We review the trial court's admission of evidence for an abuse of discretion." Campbell v. State , 118 So.3d 598, 602 (¶ 10) (Miss. Ct. App. 2012) (citation omitted). "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).

¶ 8. Mississippi Rule of Evidence 404(b), which governs the admissibility of prior crimes, states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent , preparation, plan, knowledge, identity, or absence of mistake or accident.

(Emphasis added). This Court has held that Rule 404(b) prevents the State from doing just what Johnson alleges: "raising the inference that the accused has committed other crimes and is therefore likely to be guilty of the offense charged." Smith v. State , 90 So.3d 122, 129 (¶ 22) (Miss. Ct. App. 2012) (quoting White v. State , 842 So.2d 565, 573 (¶ 24) (Miss. 2003) ).

¶ 9. To be admissible under Rule 404(b), "(1) the evidence must 'be relevant to prove a material issue other than the defendant's character,' and (2) 'the probative value of the evidence must outweigh the prejudicial effect.' " Smith , 90 So.3d at 129 (¶ 23) (quoting Davis v. State , 40 So.3d 525, 530 (¶ 16) (Miss. 2010) ). "This second prong implicates Mississippi Rule of Evidence 403 -'the ultimate filter through which all otherwise admissible evidence must pass.' " Id. (quoting Davis , 40 So.3d at 530 (¶ 16) ). The Mississippi Supreme Court has determined that evidence of prior drug sales is admissible through Rule 404(b) to prove intent to transfer or sell as long as it passes the Rule 403 balancing test and it is accompanied by a limiting instruction. Smith v. State , 839 So.2d 489, 494 (¶ 7) (Miss. 2003).

¶ 10. Further, "criminal intent may be shown by surrounding circumstances." Campbell , 118 So.3d at 604 (¶ 18). In Floyd v. State , 155 So.3d 883, 888 (¶ 12) (Miss. Ct. App. 2014), and McDonald v. State , 130 So.3d 102, 111 (¶ 28) (Miss. Ct. App. 2013), evidence of the defendant's prior convictions was admissible to show or prove intent to transfer or sell.

¶ 11. The record reflects that intent to sell was a key issue before the jury. Johnson alleges her past drug convictions were inadmissible under Rules 403 and 404 and should not have been allowed in to show intent. She argues that the prior drug crimes were too remote in time and too unrelated and unconnected to the transaction giving rise to the instant charge. She alleges that once evidence of the past crimes was allowed in, they were only relevant to or probative of her intent through the propensity inference that is expressly prohibited by Rule 404(b).

¶ 12. Despite Johnson's objection, the trial court allowed Johnson's prior convictions into evidence because they were not "offered to show that she acted in conformity therewith," but offered to show that she had the intent to transfer or sell these drugs. The trial court also conducted a Rule 403 balancing test and found that the prior convictions met Rule 403 muster because "the substantive value of this evidence substantially outweigh[ed] any prejudicial effect[.]" The circuit court gave the jury a limiting instruction stating that the jury could only use the evidence of the prior convictions to show the intent element, and not to show that she acted in conformity therewith.

¶ 13. We find that Johnson's prior drug convictions were properly admitted into evidence to show Johnson's intent to sell. And it was within the trial court's discretion to find that evidence was not overly prejudicial compared to its probative value. Likewise, we find that intent is an essential element of the present charge, and as a result, the evidence of intent was properly admitted under Rule 404(b). Therefore, this Court cannot conclude that the trial court abused its discretion in admitting Johnson's prior drug convictions into evidence. This issue is without merit.

II. Whether the jury's verdict was supported by legally sufficient evidence.

¶ 14. Johnson next argues that "[t]he evidence was insufficient to prove beyond a reasonable doubt that [she] intended to distribute, sell[,] or transfer the marijuana." Therefore, Johnson argues that the evidence was insufficient to support her conviction of possession with intent to transfer or sell. She requests that this Court remand for re-sentencing for the lesser-included offense of simple possession.

¶ 15. In considering whether the evidence is sufficient to sustain a conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Williams v. State , 35 So.3d 480, 485 (¶ 16) (Miss. 2010) (citations omitted). Where the facts and inferences "point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty," the proper remedy is to reverse and render. Id. However, if "reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense, the evidence will be deemed to have been sufficient." Id.

¶ 16. It is clear that Johnson was in possession of the drugs. There is a "presumption of constructive possession ... against the owner of premises upon which contraband is found." Hamm v. State , 735 So.2d 1025, 1029 (¶ 13) (Miss. 1999). This principle extends to the owner of a vehicle. Wall v. State , 718 So.2d 1107, 1111 (¶ 13) (Miss. 1998). Since constructive possession may be shown by establishing dominion or control, and Johnson was in control of the car at the time of the seizure, Johnson was in constructive possession of the marijuana. See Curry v. State , 249 So.2d 414, 416 (Miss. 1971). With both the simple possession instruction and possession-with-intent instruction in mind, it was reasonable for the jury to find that Johnson was guilty of possession.

¶ 17. The law is also clear on the issue of intent to sell or transfer. The supreme court has stated that such intent may be established by circumstantial evidence. Hollingsworth v. State , 392 So.2d 515, 517 (Miss. 1981). "Indeed, a jury may reasonably conclude that a defendant intended to unlawfully transfer a controlled substance[ ] if the quantity or nature of the seized substance evidences an intent to transfer[-]as opposed to an intent to merely possess for personal use." Taylor v. State , 656 So.2d 104, 108 (Miss. 1995).

¶ 18. The supreme court has been hesitant to find sufficient evidence of intent based solely on the quantity of contraband. Miller v. State , 634 So.2d 127, 129 (Miss. 1994). In Edwards v. State , 615 So.2d 590, 595 (Miss. 1993) the supreme court stated, "[q]uantity, standing alone, might be insufficient to demonstrate an intent to distribute beyond a reasonable doubt." As the court stated in Stringfield v. State , 588 So.2d 438, 440 (Miss. 1991) :

[P]roof of possession with an intent to distribute or sell should not be based solely upon surmise or suspicion. There must be evidentiary facts [that] will rationally produce in the minds of jurors a certainty, a conviction beyond reasonable doubt that the defendant did in actual fact intend to distribute or sell the [drugs], not that he might have such intent. It must be evidence in which a reasonable jury can sink its teeth.

¶ 19. When considering the evidence in the light most favorable to the prosecution, we find there was sufficient evidence to convict Johnson of possession with intent to transfer or sell. It is the function of the jury to weigh the evidence and to determine the credibility of the witnesses. Benson v. State , 551 So.2d 188, 193 (Miss. 1989). The jury was presented with more evidence than just the mere quantity of the drugs. Johnson was clearly in possession of at least 69.55 grams of marijuana, a digital scale, more than $10,000 in cash, and a number of empty plastic bags. These items were found in a backpack on the floorboard of a car in Johnson's control. The backpack also contained other personal items of Johnson's.

¶ 20. Considering the evidence in the light most favorable to the prosecution, there was sufficient evidence to find Johnson possessed the requisite intent to sell or transfer the marijuana she had. Thus, this issue is without merit.

III. Whether the jury's verdict was against the overwhelming weight of the evidence.

¶ 21. Finally, Johnson argues the verdict was against the overwhelming weight of the evidence. She responds that she is entitled to a new trial. 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 [that to allow] it to stand would sanction an unconscionable injustice," will this Court reverse and order a new trial. Fuller v. State , 910 So.2d 674, 682 (¶ 22) (Miss. Ct. App. 2005). However, "the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict." Amiker v. Drugs For Less Inc. , 796 So.2d 942, 947 (¶ 18) (Miss. 2000) (citation omitted). In addition, "we review all of the evidence in the light most favorable to the verdict." Fuller , 910 So.2d at 682 (¶ 22).

¶ 22. "[The supreme court has] held in numerous cases that the jury is the sole judge of the credibility of the witnesses and the weight to be attached to their testimony." Maiben v. State , 405 So.2d 87, 88 (Miss. 1981). Without repeating the facts previously stated, the jury analyzed all the evidence and heard all of the testimony from the witnesses called by the State. Johnson did not testify or call any witnesses. The jury determined that Johnson was guilty of possession with the intent to distribute. When polled, the jury's verdict was unanimous. The jury had the opportunity to weigh the evidence presented and the credibility of the State's witnesses. The jury declined to find Johnson guilty of the lesser-included charge of simple possession. In viewing the evidence in the light most favorable to the verdict, we cannot say that an unconscionable injustice resulted from the jury's verdict. This issue is without merit.

¶ 23. AFFIRMED.

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