author: ISHEE, J.,

text:
    DUETT LANDFORMING, INC., Appellant, v. BELZONI TRACTOR CO., INC. and Deere & Company, Appellees.
    No. 2008-CA-00022-COA.
    Court of Appeals of Mississippi.
    Sept. 8, 2009.
    Rehearing Denied Feb. 23, 2010.
    Certiorari Denied May 13, 2010.

      Merrida Coxwell, Charles E. Griffin, Jackson, attorneys for appellant.
    Frank Malvin Holbrook, attorney for ap-pellees.
    Before KING, C.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Following a trial in the Circuit Court of Humphreys County, the jury returned a verdict in favor of the defendants, Belzoni Tractor, Inc., (Belzoni) and Deere & Co. (Deere). The jury found that Duett Landforming, Inc., (Duett Landforming) had failed to prove that Belzoni and Deere had breached the implied warranties of merchantability and fitness for a particular purpose with regard to the Deere tractors that Duett Landforming had purchased from Belzoni. Aggrieved by the jury’s verdict, Duett Landforming appeals and asserts two issues:

I. Whether the circuit court improperly allowed Scott Cook to give prejudicial testimony concerning the tractors’ engineering without being disclosed or qualified as an expert.
II. Whether the jury’s verdict is against the overwhelming weight of the evidence.

Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Brookie Duett (Duett) was in the business of dirt moving, leveling, and building catfish ponds in the Mississippi Delta. Prior to purchasing the tractors at issue, Duett’s business, Duett Landform-ing had operated a number of John Deere tractors, model number 8970. Seeking to upgrade his tractors, Duett Landforming rented and later purchased from Belzoni four new John Deere tractors, model number 9400. Initially, Duett Landforming rented two 9400 tractors in July 1998, and it took delivery of a third 9400 tractor in October 1998. The company purchased those three 9400 tractors in December 1998, and it purchased a fourth 9400 tractor in January 1999.

¶ 3. Duett negotiated with Larry Shur-den, who was the dealer for Belzoni, to purchase the four tractors. Duett could not recall anything specific that Shurden told him about the tractors, nor could he remember anything from the brochure on the 9400 tractor on which he relied. Duett did not speak with anyone at Deere about the tractors prior to purchasing them. Nevertheless, Duett claimed that Shurden was familiar with Duett’s business and that Shurden knew the type of work for which the 9400 tractors would be used.

¶ 4. Duett testified that in the summer of 1999, the 9400 tractors began experiencing problems. The first problem that Duett experienced involved a transmission running hot. Later, he described problems such as: (1) the axle seals would leak; (2) the brackets holding the hydraulic lines would break; (3) the center pin that was involved in allowing the tractor to turn would break; (4) pressure would cause the fuel cap to fall off and would cause fuel to spray; (5) the hydraulic tank would leak; and (6) it was difficult to remove some of the bolts.

¶ 5. Most importantly, Duett testified about problems with the tractor gudgeons. According to Duett, a gudgeon is a large pipe that allowed the tractors to twist. He said that the gudgeons would wear down, which would cause the tractors to ride badly. Duett stated that he had also experienced problems with the gudgeons on the 8970 tractors, but he operated them for more hours before experiencing any problems with them. He could not remember how many gudgeon problems he had with the 8970 tractors, but he mentioned at least two instances. He claimed that he lost business because of the unreliability of the 9400 tractors, and he also claimed that he lost resale value on them.

¶ 6. Shurden testified that he offered Duett some options to alleviate the problems caused by the 9400 tractors, such as trading in one or all of the 9400 tractors, replacing the 9400 tractors with used 8970 tractors, keeping a 9400 tractor in stock for Duett to rent, or keeping a 8970 tractor in stock for Duett to use rent free. However, Duett never accepted any of Shur-den’s offers. According to Shurden, the Deere warranty covered the tractors for two years or 2,000 hours, whichever came first, and Deere made every covered repair on the 9400 tractors. Scott Cook, Deere’s corporate representative, testified that Deere provided an additional $24,000 worth of repairs beyond the warranty at no cost to Duett.

¶ 7. Duett Landforming called Charlie Sanders, a consultant, as an expert witness in rental value, value of equipment, and general equipment repair knowledge. Sanders testified as to the damages that Duett Landforming suffered because of the 9400 tractors. According to Sanders, Duett Landforming lost a total of $114,914 on the resale value of the tractors and between $100,000 and $150,000 “rental value” for the four tractors because of their downtime. On cross-examination, Sanders admitted that Duett Landforming had put more hours on the tractors than was the average in the industry. For example, at the time that the company traded in tractor number 11013 in March 2002, Sanders said that it had 4,114 hours logged on it, which was more than twice the industry average of 1,800 hours. None of the tractors had been used for fewer than 3,152 hours.

¶ 8. Cook, who was Deere’s engineering manager for the 9000 series tractors, testified on behalf of Deere and Belzoni. He had not inspected the tractors at issue, but he initially explained some of the design differences between the 8970 series and the 9400 series tractors. Although the 9400 was a newer series, it incorporated the same transmission as the 8970, with minor modifications. As for the gudgeon on the 9400 tractors, Cook testified it incorporated a bushing-style bearing; whereas, the 8970 tractors incorporated a tapered rolling bearing. Deere switched to the bushing-style bearing because of some sealing issues in the 8970 tractors with the tapered rolling bearings that required daily maintenance. Deere discovered that in eases of extreme oscillation— when the front of the tractor tips relative to the rear — debris could enter the gudgeon and cause problems with the 9400 tractors. Cook did not deny that Duett Landforming had experienced problems with the 9400 tractors. However, he noted that it had used the tractors for many more hours than what an average user would. Cook rated the company’s land-forming operation as some of the most strenuous work that Deere’s tractors could perform, describing it as a nine or a ten on a ten-point scale.

¶ 9. When Cook was questioned on direct examination about the effect of pushing one tractor that was stuck in the mud with another tractor, Duett Landforming objected to his testimony as being that of an expert witness. In response, Deere argued that Cook would testify as to facts, not opinions; therefore, it was not expert testimony. The circuit court overruled the objection and allowed Cook to testify about the engineering strains that are placed on a tractor when it is pushed with another tractor. Cook’s conclusion was that pushing the tractor would put a different strain on the gudgeon than the tractor normally experienced, and the act would bring in more debris through the seal. He contrasted pushing a tractor to pulling or towing a tractor, in which cases the strains on the gudgeon would be similar to normal operation.

¶ 10. According to Cook, Deere would not try to build a tractor that could not break because customers would not be able to afford it, and it would not be functional for customers. He said Deere expected its tractors to need occasional servicing. In the present case, he testified that Deere performed every required warranty repair on all four of Duett Land-forming’s tractors. He- testified that Deere had done everything to uphold its end of the implied warranties and had also gone beyond what was necessary to repair the tractors — providing an additional $24,000 in repairs that was not required under the warranties. Duett Landforming had also been offered concessions to extend the warranties on its tractors and to upgrade the bearings on the 9400 tractors, and it had been offered trade-in incentives on newer tractors.

¶ 11. The jury returned a verdict finding that Belzoni did not breach an implied warranty of merchantability or fitness for a particular purpose. The jury also returned a verdict finding that Deere had not breached any implied or express warranties. After the circuit court denied Duett Landforming’s motion for a judgment notwithstanding the verdict, he timely filed the present appeal.

DISCUSSION

I. Expert Testimony

¶ 12. Duett Landforming first takes issue with the circuit court’s decision to allow what he claims amounted to expert testimony from Cook. According to Duett Landforming, the circuit court improperly allowed Cook to give expert testimony when Cook was never disclosed or qualified as an expert. The testimony with which Duett Landforming takes issue is Cook’s engineering testimony concerning the tractors’ gudgeons and the possible effects that pushing a tractor with another tractor could have on the gudgeons. After Duett Landforming’s objection was overruled, that exchange continued as follows:

Q. Mr. Cook, you were explaining to the jury, tell us what — if a tractor is pushing on the front of this tractor, what engineering strains there are on a tractor that is stuck. And if you want to use this model, I’ll be glad to hand it to you.
A. When a tractor is pushing on the nose or the front end of the tractor, what tends to happen is, the front of the tractor is pushed up.... [Y]ou tend to load the gudgeon or the spindle area right here and put a bending load on it in this direction where it’s in compression on the top side and tension on the bottom side. That’s different than it is normally loaded. That’s one of the things that pushing causes a different loading than most of the tractors in this application.
Q. Okay. What effect would that pushing and that motion have on the bushing seal?
A. As you can see, the motion here would cause that — that gap there to change and so it tends to work it and would tend to bring more debris through that seal. As that seal gets breached and you continue to do that, even if it’s on an infrequent basis, you tend to pump material into that — that bearing.
Q. Would there — if a tractor is pushing another tractor, would you explain to the jury what forces from an engineering standpoint apply to the tractor that is pushing?
A. The tractor that’s pushing would have a similar set of forces and would tend to close up that gap and so both the tractor being pushed and the tractor pushing would tend to see that type of loading.
Q. I don’t believe it’s shown in this picture, but I believe that there’s another picture that Mr. Cote showed yesterday that showed a tractor being pulled by a bulldozer. If — -if a bulldozer hooks up to this pan and pulls, what are the forces that are applied to the tractor up here in this gudgeon area?
A. Being pulled from the rear is essentially the same as the tractor pulling forward so the forces in the gudgeon area would be very similar to what they would be in a normal operation.
Q. So that would not be — is it correct to say that that would not be as difficult on the bearing as the bushing?
A. That is correct.
Q. Now, did you ever personally inspect the tractors at issue in this case?
A. No, I did not.

¶ 13. “The ‘admissions or exclusion of evidence is within the discretion of the trial judge and will not be reversed absent an abuse of that discretion.’ ” Irby v. Travis, 935 So.2d 884, 905(¶ 56) (Miss.2006) (quoting Miss. Dep’t of Transp. v. Cargile, 847 So.2d 258, 263(¶ 16) (Miss.2003)). Upon review, this Court will reverse a case based on the admission of evidence only if it “results in prejudice and harm or adversely affects a substantial right of a party.” Blake v. Clein, 903 So.2d 710, 722(¶ 30) (Miss.2005) (quoting K-Mart Corp. v. Hardy, 735 So.2d 975, 983(¶ 21) (Miss.1999)).

¶ 14. Pursuant to Mississippi Rule of Civil Procedure 30(b)(6), Duett Land-forming requested that Deere make available a corporate representative to testify regarding, among other things: (1) “Defects discovered by Deere ... in regard to all gudgeons in the John Deere 9400 Series tractors ... (2) “Defects discovered by Deere ... in regard to all transmissions of the John Deere 9400 Series tractors ...”; and (3) “All alleged product performance problems involving John Deere 9400 Series tractors including, but not limited to, gudgeons and transmissions.” Cook, who oversaw the design of the 9000 series tractors, of which the model 9400 was included, was designated as Deere’s corporate representative to testify regarding the specified matters. At his deposition, Cook testified about the technical aspects of the tractors, including the design and purpose of the gudgeon and the known defects with it. Duett Landform-ing’s attorney also questioned Cook as to whether the push bars that Duett installed on the front ends of the 9400 tractors would have affected the gudgeons — the same issue about which Duett Landform-ing now argues that Cook should not have been allowed to testify. The deposition exchange proceeded with the defense attorney questioning Cook as follows:

Q. Okay. Go to Bates number 1720 and read that top part, the very top of the, start out four-wheel drive tractor.
A. All the four-wheel drive tractors we saw were equipped with pusher bars attached to the front frame. We discussed this with the TAM, or territory aftermarket manager, and suggested that any equipment attached to the front axle of these tractors should reach under the axle and attach to the frame behind the front axle.
Q. Do you know why that statement was made?
A. The first one we do not recommend pushbars on any of those four-wheel drive tractors with scrapers.
Q. And why not?
A. Because that is not an approved application. We do not test for it and do not recommend it.
Q. Do you have any warning put out in your literature and tell them not to do that?
A. I can’t answer that, sir. I don’t know if that’s in there or not. That’s a vehicle modification.
Q. Would that have anything to do with the gudgeon or would you know?
A. I would have to speculate. I don’t know, sir.

¶ 15. Despite the presence of such testimony in Cook’s deposition, Duett Land-forming introduced the deposition into evidence during his case-in-chief. This was prior to the alleged improper testimony that was elicited from Cook during the defense’s case. Duett Landforming played a tape recording of the deposition before the jury and then introduced a transcript of the deposition in evidence. In the deposition, Cook did not specifically answer the question about whether pushing the tractor with the push bar would cause the gudgeon problems. However, after the questions concerning the push bars, the defense attorney continued to ask Cook about the various modifications that Duett had made to the tractors and whether those modifications would have adversely affected the gudgeons. When Cook was later questioned at trial, he said that pushing the tractor could possibly cause damage to its gudgeon.

¶ 16. From his deposition and from the trial testimony, it was clear that Cook had not inspected any of Duett Landforming’s tractors. He did not testify that Duett caused the gudgeon problems by pushing his tractors, and he did not give an opinion as to why Duett Land-forming’s tractors experienced problems. Nevertheless, Cook’s testimony was in the nature of expert testimony. Cook was neither disclosed as an expert witness prior to trial nor accepted as an expert at trial; therefore, it was improper for him to give expert testimony. We note, however, that Duett Landforming initially brought up this matter by playing a tape recording of Cook’s deposition for the jury. Therefore, any objectionable engineering testimony that Cook gave was initiated when Duett Landforming introduced the deposition in which the jury heard Cook speak at length about the design of the 9400 tractors, the gudgeon problems they experienced, and the possible effects that Duett’s modifications might have had on the gudgeons. The supreme court has held that “as a general rule, the issue of whether a party opens the door for an opposing party to inquire about otherwise inadmissible evidence, lies within the sound discretion of the trial court.” Hartel v. Pruett, 998 So.2d 979, 988(¶ 22) (Miss.2008) (quoting APAC-Miss., Inc. v. Goodman, 803 So.2d 1177, 1185(¶ 35) (Miss.2002)). We find that whether the circuit court found the testimony to be proper layperson testimony or not was not dispositive of the issue. Duett Landforming opened the door for such testimony by playing the tape recording of Cook’s deposition for the jury. Therefore, we find it was within the circuit court’s discretion to allow the defense to continue the line of questioning.

¶ 17. In the present case, the circuit court did not explain its decision to admit Cook’s objectionable testimony; therefore, we are left in the dark as to the rationale behind the ruling. Deere argued at trial, and continues to argue on appeal, that Cook’s testimony amounted to factual information of which he had knowledge; therefore, he claims it was not expert testimony. However, in Palmer v. Volkswagen of America, Inc., 904 So.2d 1077, 1092(¶ 64) (Miss.2005), the supreme court stated:

To be clear, the-test for expert testimony is not whether it is fact or opinion. The test is whether it requires “scientific, technical, or other specialized knowledge beyond” that of the “randomly selected adult.” If so, the testimony is expert in nature, and must be treated in discovery, and at trial, as such.

Whatever the circuit court’s reason for allowing the testimony, “we may on appeal affirm the decision of the trial court where the right result is reached, even though we may disagree with the trial court’s reasons for reaching that result.” Magnolia Healthcare, Inc. v. Barnes, 994 So.2d 159, 162(¶ 12) (Miss.2008) (quoting Pass Termite and Pest Control, Inc. v. Walker, 904 So.2d 1030, 1032(¶ 6) (Miss.2004)). In the present case, we find that although Cook gave improper expert testimony, it was within the circuit court’s discretion to allow that testimony because Duett Landforming initiated that line of questioning when its attorney played the tape recording of Cook’s deposition, which covered the same issue to which Cook testified at trial.

II. Judgment Notwithstanding the Verdict

¶ 18. In Duett Landforming’s second issue, it alleges that the evidence did not support the verdict that the jury returned. Duett Landforming claims that it presented a clear case of breach of implied warranties of merchantability and fitness for a particular purpose, and it claims that no reasonable juror could have returned a verdict finding that there was not a breach of those warranties.

¶ 19. A motion for a judgment notwithstanding the verdict tests the legal sufficiency of the evidence. White v. Yellow Freight Sys., Inc., 905 So.2d 506, 510(¶ 6) (Miss.2004) (citing Tharp v. Bunge Corp., 641 So.2d 20, 23 (Miss.1994)). The circuit court must consider all the evidence in a light most favorable to the nonmoving party. Id. (citing Janssen Pharmaceutica, Inc. v. Bailey, 878 So.2d 31, 54 (¶ 107) (Miss.2004)). “If the facts and inferences so considered point so overwhelmingly in favor of the movant that reasonable jurors could not have arrived at a contrary verdict,” then the circuit court must grant the motion. Id. This Court applies a de novo standard of review when considering a circuit court’s denial of a motion for a judgment notwithstanding the verdict. Irby, 935 So.2d at 888(¶ 9) (quoting Poole ex rel. Poole v. Avara, 908 So.2d 716, 726(¶ 24) (Miss.2005)).

¶ 20. Mississippi Code Annotated section 75-2-314 (Rev.2002) provides for an implied warranty of merchantability. Under section 75-2-314(1), “a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.” Section 75-2-314(2) further provides that for goods to be merchantable, they “must be at least such as”:

(a) Pass without objection in the trade under the contract description; and
(b) In the case of fungible goods, are of fair average quality within the description; and
(c) Are fit for the ordinary purposes for which such goods are used; and
(d) Run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and
(e) Are adequately contained, packaged and labeled as the agreement may require; and
(f) Conform to the promises or affirmations of fact made on the container or label if any.

¶ 21. First, Belzoni and Deere were merchants who sold tractors; therefore, the implied warranty was applicable. However, they presented testimony to support their position that they did not breach the implied warranty. The fact that the 9400 tractors experienced more problems than Duett Landforming’s previously-owned 8970 tractors does not necessarily mean that they were not merchantable. “The implied warranty of merchantability is not intended to guarantee that the goods be the best or of the highest quality — the standard is measured by the generally acceptable quality under the description in the contract.” Johnson v. Davidson Ladders, Inc., 403 F.Supp.2d 544, 551 (N.D.Miss.2005) (quoting Beck Enters., Inc. v. Hester, 512 So.2d 672, 676 (Miss.1987)). “Where a product conforms to the quality of other similar products in the market, it will normally be merchantable.” Id. There was testimony that Duett Land-forming was engaged in an intensive operation building catfish ponds and that it operated the tractors for some time before it encountered any problems with them. Furthermore, at that point in the life of the tractors, the company had operated them well in excess of the number of hours that was average for the 9400 tractors.

¶ 22. While Duett Landforming presented testimony that supported its claim of a breach of the implied warranty, Deere and Belzoni presented evidence to the contrary. We find no merit to Duett Land-forming’s claim that the circuit court should have granted its motion for a judgment notwithstanding the verdict with regard to the implied warranty of merchantability.

¶ 23. As for the alleged breach of an implied warranty of fitness for a particular purpose, Mississippi Code Annotated section 75-2-315 (Rev.2002) provides, in part, that:

Except as otherwise provided in this section, where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is an implied warranty that the goods shall be fit for such purpose.

¶ 24. Shurden admitted that he was aware that Duett was in the business of building catfish ponds. However, Duett could not remember any assurances that Shurden gave him as to how the 9400 tractors would function, nor did he say that he relied on Shurden’s representations in making his decision to purchase the 9400 tractors. Duett said he had spoken to Shurden about the 9400 tractors, and he had also seen a video and looked at a brochure about them. The evidence did not reflect that Duett relied on Shurden’s “skill or judgment to select or furnish suitable goods.” Miss.Code Ann. § 75-2-315. To the contrary, Duett stated that he was the expert on building catfish ponds, and he was the person who had selected the 9400 tractors. As for how Duett decided to purchase the 9400 tractors, he said, “I wanted the bigger tractors and they were the only ones available sold by John Deere and I’d been buying John Deere tractors so — and had had good luck with them, so that’s the only one I wanted to try, I guess.”

¶ 25. We find that the evidence was such that reasonable jurors could have disagreed over whether Belzoni or Deere breached their implied warranties to Duett Landforming. Therefore, the circuit court did not err by denying Duett Landform-ing’s motion for a judgment notwithstanding the verdict. We find that this issue is without merit.

¶ 26. THE JUDGMENT OF THE CIRCUIT COURT OF HUMPHREYS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . Duett testified that he installed valves to prevent this from occurring.

      . The 8970s and the 9400s were articulating tractors, which means that they had a front and a back section that were connected at a central joint. The gudgeon was the piece that allowed the two pieces of the tractor to pivot or twist.

      . After Duett Landforming rested its case-in-chief, the circuit court granted Belzoni's motion for a directed verdict on the claim that it violated any express warranties.


source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    Gilbert EWING, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CP-00123-COA.
    Court of Appeals of Mississippi.
    Sept. 29, 2009.
    Rehearing Denied Feb. 9, 2010.
    Certiorari Denied May 13, 2010.

      Gilbert Ewing, pro se, attorney for appellant.

      Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, C.J., GRIFFIS and CARLTON, JJ.
   KING, C.J.,

for the Court.

¶ 1. On August 14, 2006, Gilbert Ewing pleaded guilty in the Circuit Court of Hinds County to one count of armed robbery. Ewing was sentenced to serve thirty years in the custody of the Mississippi Department of Corrections (MDOC), with ten years suspended and five years of post-release supervision. Ewing timely filed a motion for post-conviction relief, and the trial court dismissed the motion. Aggrieved, Ewing timely filed his notice of appeal, raising the following five issues:

I. Whether the indictment’s failure to charge armed robbery and to describe the property taken caused the circuit court to lack subject matter jurisdiction;
II. Whether Ewing’s constitutional protection against double jeopardy was violated;
III. Whether Ewing’s guilty plea to armed robbery was valid;
IV. Whether the waiver of appeal was unenforceable and void; and
V. Whether the trial court constructively amended the grand jury charge in the indictment.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On December 13, 2005, Ewing, along with Carlos Brown and Joseph White, were indicted for the following crimes that occurred on May 10, 2005:(1) shooting into an occupied dwelling, (2) burglary, (3) aggravated assault, (4) attempted armed robbery, and (5) kidnapping. Ewing’s trial commenced in June 2006.

¶ 3. During deliberations, the jury sent a note to the trial court, stating that it had reached a verdict as to Count IV — -armed robbery. The jury submitted several questions to the trial court regarding Counts I, II, III, and V. Based on the questions submitted to the trial court, the State and Ewing entered into plea discussions. They agreed that the State would enter a nolle prosequi to Counts I, II, III, and V and that Ewing would enter a plea of guilty to the armed robbery charge. In compliance with the plea agreement, the State filed an order of nolle prosequi, stating that it was in the State’s best interest to cease further deliberations on Counts I, II, III, and V. Then, Ewing withdrew his plea of not guilty and entered a guilty plea to the charge of armed robbery. Ewing also signed a petition that waived his right to appeal. Ewing was sentenced to serve thirty years in the custody of the MDOC, with ten years suspended and five years of post-release supervision.

¶ 4. On March 2, 2007, Ewing filed a “Motion to Vacate Sentence and Conviction,” arguing that: (1) the State failed to prove that he committed armed robbery; (2) the State’s evidence was insufficient to support a conviction of armed robbery; and (3) Count IV of the indictment failed to state an offense because it did not specify the property that was taken from the victim. The trial court treated Ewing’s motion as a motion for post-conviction relief. On March 22, 2007, the trial court dismissed Ewing’s motion, finding that Ewing’s claims were moot because he entered a guilty plea.

¶ 5. Aggrieved, Ewing filed his notice of appeal.

ANALYSIS

¶ 6. This Court will not disturb the trial court’s dismissal of a motion for post-conviction relief unless we find it to be clearly erroneous. Williams v. State, 872 So.2d 711, 712(¶ 2) (Miss.Ct.App.2004). However, issues of law are reviewed de novo. Id.

I. Count IV of the Indictment

¶ 7. Ewing argues that his indictment was defective because: (1) Count IV only charged him with attempted armed robbery, not armed robbery, and (2) the indictment failed to describe the property that was allegedly taken from the victim. Conversely, the State argues that Ewing waived any non-jurisdictional defects in the indictment when he entered his guilty plea.

¶ 8. The law is clear that a defendant waives all non-jurisdictional defects in the indictment when he enters an intelligent and voluntary guilty plea. Kincaid v. State, 711 So.2d 873, 877(¶ 19) (Miss.1998). However, a guilty plea does not waive “the failure of an indictment to charge a criminal offense or, more specifically, to charge an essential element of a criminal offense ....” Id. at (¶ 20).

¶ 9. Count IV of Ewing’s indictment charged that:

[Ewing] did wilfully, unlawfully, and fe-loniously attempt to take from the person and the presence of Chiquita Scott personal property ... against her will by violence to her person or by putting Chiquita Scott in fear of immediate injury to her person by the exhibition of a deadly weapon to-wit: a small caliber handgun, in violation of [Mississippi Code Annotated section 97-3-79 (Rev. 2006) ].

Mississippi Code Annotated section 97-3-79 (rev.2006) provides that:

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....

¶ 10. Count IV of Ewing’s indictment basically tracked the language of the statute, but the indictment included the phrase “attempt to take” instead of using the entire phrase of “take or attempt to take.” However, this Court has held that:

Mississippi Code Annotated [s]ection 97-3-79 punishes attempted armed robbery the same as armed robbery.... The language in the indictment tracks the statute, in that the crime of armed robbery is complete at the attempt. It is irrelevant that the indictment only stated that [the defendant] “attempted to take” because according to the statute, a person can be convicted of armed robbery while attempting to complete the act. The language in the indictment is consistent with this notion that the act is complete upon the attempt.

Calhoun v. State, 881 So.2d 308, 311(¶ 12) (Miss.Ct.App.2004). The Court’s holding in Calhoun is applicable to the case at bar. Because the act of armed robbery is complete upon the attempt, it is immaterial that the indictment only charged that Ewing attempted to take the personal property of the victim.

¶ 11. Next, Ewing argues that the indictment was defective because it failed to describe the personal property that was allegedly taken from the victim. “An indictment must contain: (1) the essential elements of the offense charged, (2) sufficient facts to fairly inform the defendant of the charge against which he must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of a future prosecution.” Gilmer v. State, 955 So.2d 829, 836(¶ 24) (Miss.2007) (citing Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974)).

¶ 12. As previously mentioned, Ewing was charged with armed robbery under section 97-3-79. Armed robbery has three essential elements: “(1) felonious intent, (2) force or putting in fear as a means of effectuating the intent, and (3) by that means taking and carrying away the property of another from his person or in his presence.” Croft v. State, 992 So.2d 1151, 1157(¶ 26) (Miss.2008) (quoting Walker v. State, 913 So.2d 198, 223(¶ 78) (Miss.2005)). The statute does not suggest that a description of the personal property allegedly taken is a necessary element of the crime. This Court has held that “as a general rule, an indictment which tracks the language of a criminal statute is sufficient to inform the defendant of the charge against him.” Ford v. State, 911 So.2d 1007, 1012—13(¶ 14) (citing Stevens v. State, 808 So.2d 908, 919(¶ 31) (Miss.2002)). Ewing’s indictment tracked the language of section 97-3-79, and we find that the indictment was sufficient to put him on notice of the charge against him. This argument is without merit.

II.Double Jeopardy

¶ 13. Ewing argues that he was subjected to double jeopardy because he was charged with armed robbery on three occasions: (1) in Count II of his indictment, (2) in Count IV of his indictment, and (3) when he pleaded guilty to the charge of armed robbery.

¶ 14. The Fifth Amendment to the United States Constitution and Article 3, Section 22 of the Mississippi Constitution protect against double jeopardy, providing that no person shall be prosecuted twice for the same offense. The Double Jeopardy Clause “prevents a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense.” Thomas v. State, 930 So.2d 1264, 1265-66(¶ 5) (Miss.Ct.App.2005) (citing Greenwood v. State, 744 So.2d 767, 770(¶ 14) (Miss.1999)).

¶ 15. A defendant cannot be convicted of a crime “unless by confession of his guilt in open court or by admitting the truth of the charge against him by his plea, or by the verdict of a jury accepted and recorded in court.” Miss.Code Ann. § 99-19-3 (Rev.2007). In the case at bar, the jury simply informed the trial court that it had reached a verdict on Count IV and had not reached a verdict regarding the other four counts of the indictment. As previously mentioned, the State filed an “Order of Nolle Prosequi” on Counts I, II, III, and V. Because the burglary charge in Count II was passed to the file, Ewing was no longer charged with nor convicted of Count II.

¶ 16. Ewing entered a guilty plea to the armed robbery charge in Count IV before the jury announced its verdict in open court. Ewing was not convicted of the crime of armed robbery until he confessed his guilt. Based on the foregoing, we find that no issue of double jeopardy exists in this case. This argument is wholly without merit.

III. Guilty Plea

IV. Waiver of Appeal

V. Constructive Amendment of the Indictment

¶ 17. Ewing raises three more issues for the first time on appeal. Ewing argues that his guilty plea was not entered intelligently and voluntarily because Count IV of the indictment charged him with attempted armed robbery and not armed robbery. Ewing argues that his waiver of appeal is unenforceable and void because the indictment allegedly misidentified the victim. Ewing also argues that the trial court impermissibly and constructively amended the indictment, which charged him with attempted armed robbery, by instructing the jury to decide if he committed armed robbery.

¶ 18. Ewing’s failure to raise the issue of the voluntariness of his guilty plea before the trial court in his motion for post-conviction relief bars this issue from our review. Foster v. State, 716 So.2d 538, 540(¶ 9) (Miss.1998). Additionally, Ewing’s failure to raise the issue concerning his waiver of appeal before the trial court bars this issue from our review. See Black v. State, 919 So.2d 1017, 1019(¶ 6) (Miss.Ct.App.2005). The law is clear that “a valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial.” Holland v. State, 956 So.2d 322, 326(¶ 9) (Miss.Ct.App.2007) (quoting Swindoll v. State, 859 So.2d 1063, 1065(119) (Miss.Ct.App.2003)). Thus, by entering his guilty plea, Ewing waived the right to complain of the jury instruction that allegedly amended the indictment.

CONCLUSION

¶ 19. Based on our review of the record, we find that Ewing’s indictment was not fatally defective, and Ewing was not subject to double jeopardy. Because Ewing failed to raise the voluntariness of his guilty plea and his waiver of appeal before the trial court, these issues are procedurally barred from the Court’s review. Also, because Ewing pleaded guilty to the crime of armed robbery, he cannot now complain of any non-jurisdictional defects which are incident to trial. Accordingly, the dismissal of Ewing’s motion for post-conviction relief is affirmed.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. MAXWELL, J., NOT PARTICIPATING.


author: ROBERTS, J.,

text:
    Rubin RENFROW, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-00786-COA.
    Court of Appeals of Mississippi.
    Nov. 10, 2009.
    Rehearing Denied Feb. 16, 2010.
    Certiorari Denied May 13, 2010.

      W. Terrell Stubbs, Reeves Jones, attorneys for Appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for Appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   ROBERTS, J.,

for the court.

¶ 1. A jury sitting before the Simpson County Circuit Court found Rubin Ren-frow guilty of one count of possession of child pornography. The circuit court sentenced Renfrow to fifteen years in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved, Ren-frow appeals. Renfrow claims the circuit court erred when it: (1) denied his motions to suppress the evidence that was obtained from his computer, (2) denied his motion to suppress the evidence related to his interview at the Simpson County Sheriffs Department, (3) denied his motion to dismiss the indictment on the basis that Mississippi Code Annotated section 97-5-33(5) (Supp.2008) is impermissibly vague, (4) denied his motion for a continuance intended to give his attorney more time to review a forensic duplicate of his hard drive and his original hard drive, (5) denied his motion for a judgment notwithstanding the verdict (JNOV), and (6) denied his motion for a new trial. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. The catalyst that led to Renfrew's conviction occurred in March 2006, when a child related to Renfrow spoke to an elementary school counselor. It is unclear what the child said to the school counselor, but whatever the child said, the school counselor was concerned that the child had been exposed to inappropriate matters of a sexual nature. The school counselor relayed his concerns to the child’s father and Kim Fulgram with the Rankin County Department of Human Services. Fulgram contacted Brian Ervin, a counselor with the Rankin County Child Advocacy Center. On March 8, 2006, Ervin interviewed the child who spoke to the school counsel- or. Ervin also interviewed the child’s sibling. The children, then ages four and six years old, indicated that Renfrow showed them pictures that he had on his computer. To paraphrase the children, Renfrow showed them pictures of naked adults and children. The inference was that Renfrow had showed the children pictures of adult and child pornography. The children also allegedly indicated that Renfrow had touched them inappropriately.

¶ 3. Because the events described by the children were to have taken place in Simpson County, Fulgram contacted the Simpson County Sheriffs Department. On March 16, 2006, the children’s father met with Investigator Bernard Gunter of the Simpson County Sheriffs Department. Investigator Gunter also watched the videotape of Erwin’s interviews of the children. On March 21, 2006, Investigator Gunter applied for and obtained warrants to arrest Renfrow and to search Renfrow’s home and seize his computer. That same day, Investigator Gunter executed the warrants. Investigator Gunter went to Renfrow’s home in Simpson County, arrested Renfrow, and seized Renfrow’s computer. Investigator Gunter delivered Renfrow’s computer to the Mississippi Attorney General’s Cyber Crime Unit (the Cyber Crime Center), where forensic investigators Sherita Sullivan and Keith Leavitt examined Renfrow’s computer. Their examinations will be discussed in greater detail below. Succinctly stated, the investigation of Renfrow’s computer involved creating a forensic duplicate of Renfrow’s hard drive and then examining the forensic duplicate.

¶ 4. Meanwhile, Renfrow had been arrested and released from custody. However, on March 16, 2007, Renfrow reported to the Simpson County Sheriffs Department after Investigator Gunter had placed a card on the door of Renfrow’s home and requested that Renfrow report to the Simpson County Sheriffs Department. Investigator Gunter later explained that he intended to serve Renfrow with a capias. However, when Renfrow reported, he informed Investigator Gunter that he would waive his rights to remain silent and to have an attorney present and would allow Investigator Gunter to interview him. Renfrow executed a document waiving his rights and allowed Investigator Gunter to interview him while Sheriff Kenneth Lewis was present. During that interview, Ren-frow stated that he knew he had pictures depicting child pornography on his computer. However, he also stated that he obtained the pictures inadvertently. To summarize Renfrow’s version of events, he received unsolicited e-mails that included the pictures depicting child pornography, he did not know who sent him the pictures, and he tried to delete the pictures.

¶ 5. Investigator Gunter attempted to create a videotaped recording of Renfrow’s interview. However, after the interview had ended, Investigator Gunter discovered that he had failed to activate a switch that would have created an audio recording of the interview. In other words, Investigator Gunter only had a video recording of the interview. There was no audio recording. Investigator Gunter then wrote a summary of Renfrow’s interview. Sheriff Lewis signed Investigator Gunter’s summary and indicated that he shared Investigator Gun-ter’s recollection of Renfrow’s interview.

¶ 6. On October 1, 2007, the Simpson County Grand Jury returned an indictment against Renfrow, charging him with one count of touching a child inappropriately in violation of Mississippi Code Annotated section 97-5-23(1) (Rev.2006). The grand jury also charged Renfrow with one count of willful possession of child pornography. Renfrow waived arraignment and pled not guilty.

¶ 7. Renfrow filed numerous pretrial motions. For our purposes, only a few of those motions are noteworthy. On February 13, 2008, Renfrow filed a motion to review the State’s evidence. That same day, Renfrow filed a relatively generic motion to suppress practically any evidence the State obtained from any source. On February 28, 2008, Renfrow filed a motion for a continuance. Renfrow requested a continuance so he could review the discovery tendered by the State. Renfrow also requested that he and his computer expert be allowed access to the original hard drive that was removed from his computer. On March 5, 2008, Ren-frow filed an amended motion to suppress the State’s evidence. The majority of Renfrow’s amended motion to suppress was identical to his original motion to suppress. However, Renfrow added a claim that “[t]he State has wholly failed to protect and secure the [evidence obtained from Renfrow’s computer], and it has been contaminated and subjected to potential virus infection.”

¶ 8. On March 7, 2008, the circuit court conducted a hearing on Renfrow’s first series of pretrial motions. The events that transpired during the hearing on those motions will be discussed in greater detail as necessary in the analysis of Renfrow’s issues. Suffice it to say that the circuit court granted Renfrow’s motion for a continuance so Renfrow’s computer expert could review a copy of Renfrow’s hard drive. The circuit court rescheduled Ren-frow’s trial date and set Renfrow’s trial for March 27, 2008. However, the circuit court also denied Renfrow’s motions to suppress the evidence.

¶ 9. During the March 7, 2008, hearing, Renfrow moved to dismiss the indictment. Renfrow argued that section 97-5-33(5) is impermissibly vague because it does not include a mens rea component. The State pointed out that, while there is no mens rea component listed in that statutory provision, the language in the indictment required the State to prove that Renfrow willfully possessed child pornography. The circuit court denied Renfrow’s motion to dismiss the indictment and noted that because the indictment contained the allegation that Renfrow willfully possessed child pornography, the State would be obligated to prove that portion of the allegation beyond a reasonable doubt. Finally, the circuit court rescheduled Renfrow’s trial date.

¶ 10. On March 14, 2008, the State filed a document titled “entry of nolle prosequi” and moved that the circuit court dismiss the charge that Renfrow inappropriately touched the children. The circuit court executed the consent portion of that document on the same day. On March 19, 2008, Renfrow filed three new pretrial motions. Two of those motions are pertinent to the issues on appeal. The first of those pertinent motions was Renfrow’s second motion for a continuance. Renfrow’s March 19, 2008, motion for a continuance was based on the fact that, although the State provided his expert with access to an exact copy of the hard drive, the State had not given his expert access to the original hard drive. Additionally, Renfrow filed a renewed motion to suppress the evidence. Renfrow claimed the circuit court should suppress the evidence that Investigator Gunter obtained when he executed the search warrant. The most significant evidence that Investigator Gunter seized was Renfrow’s computer and all of the evidence that was obtained from his computer. Renfrow argued that it was appropriate to suppress that evidence because the events that led to the acquisition of the search warrant occurred nine or ten months before Investigator Gunter sought to obtain the search warrant.

¶ 11. On March 20, 2008, the circuit court conducted another series of hearings on Renfrow’s motions. After some discussion, it was resolved that the State would allow Renfrow’s expert to make her own copy of Renfrow’s original hard drive, subject to the conditions that Renfrow’s expert make her copy at the Cyber Crime Center under the supervision of employees of the Cyber Crime Center, who would ensure that Renfrow’s expert maintained the evidentiary integrity of Renfrow’s original hard drive. However, the circuit court did not grant Renfrow’s request for a continuance.

¶ 12. As for Renfrow’s renewed motion to suppress the evidence obtained by the search warrant, the circuit court found that, although the children indicated that the alleged inappropriate touching occurred in April or May 2005, the children did not report the allegation until late February or early March 2006. The circuit court also found that Investigator Gunter acted on the allegations as soon as he found out about them. Accordingly, the circuit court denied Renfrow’s renewed motion to suppress. There were no further delays, and Renfrow went to trial as scheduled.

¶ 13. The events that transpired at Renfrow’s trial will be discussed as necessary in the analysis portion of this opinion. As previously mentioned, the jury found Renfrow guilty of possession of child pornography. Following Renfrow’s unsuccessful post-trial motions for a judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial, the circuit court sentenced Renfrow to fifteen years in the custody of the MDOC. Aggrieved, Renfrow appeals. We have restructured the issues and Renfrow’s arguments to provide greater clarity, as Renfrow’s claims require significantly more separate discussions than the six issues he lists.

ANALYSIS

I. RENFROW’S MOTION TO DISMISS THE INDICTMENT

¶ 14. Count II of the indictment charged Renfrow with violating section 97-5-33(5) of the Mississippi Code, which states that “[n]o person shall, by any means including computer, possess any photograph, drawing, sketch, film, video tape or other visual depiction of an actual child engaging in sexually explicit conduct.” Miss.Code Ann. § 97-5-33(5). Renfrow moved to dismiss Count II of the indictment on the basis that section 97-5-33(5) is unconstitutionally vague.

¶ 15. The circuit court denied Ren-frow’s motion and held as follows:

I agree subsection (5) of 97-5-33 does not contain the word “knowingly” or “willfully” or anything like that. In a sense, the indictment which does contain the word “willfully” and which has been equated numerous times, dozens, if not hundreds, of times with knowingly in all kinds of different cases by our supreme court. The indictment in effect puts more burden on the State than the statute does. The State has nailed themselves down to proving that the defendant willfully, i.e., knowingly, possessed this alleged child pornography. The statute doesn’t say they have to do it, but the indictment does. So that’s what you’re stuck with. So, for this case, that motion is denied.

¶ 16. Renfrew claims the circuit court erred. Our supreme court has directed that, upon review of a circuit court’s decision to deny a motion to dismiss the indictment based on a claim that a statute is unconstitutionally vague, the appropriate test is to determine “whether the statute defines the criminal offense with sufficient definiteness such that a person of ordinary intelligence has fair notice of what conduct is prohibited.” Lewis v. State, 765 So.2d 493, 499(¶ 25) (Miss.2000).

¶ 17. Renfrew notes that section 97-5-33(1), (3), (6), and (7) contain a mens rea aspect, but section 97-5-33(5) does not contain a mens rea aspect. According to Renfrew’s logic, “to allow this section to stand as written, without requiring some mental element on the part of a defendant, would be tantamount to not affording a person of ordinary intelligence, [sic] fair notice of exactly what conduct is prohibited.” Renfrew also argues that section 97-5-33(5), as written, punishes people who have unintentionally or unknowingly had child pornography placed on their computers through computer viruses or computer hackers.

¶ 18. There can be no doubt that a criminal statute is not unconstitutionally vague solely because it does not contain a mens rea element. “The Legislature may define a crime which depends on no mental element and consists only of forbidden acts or omissions.” Roberson v. State, 501 So.2d 398, 401 (Miss.1987) (quoting Wright v. State, 236 So.2d 408, 413 (Miss.1970)). “In that instance, the intent to do the forbidden act is the only intent necessary to complete the offense.” Id.

¶ 19. However, our decision need not turn on whether section 97-5-33(5) is unconstitutionally vague simply because it does not contain a mens rea element. The State charged Renfrew with willful possession of child pornography. That is, Count II of the indictment against Renfrew contained language that included an allegation that Renfrew willfully possessed child pornography. By including that language, the State imposed a mens rea requirement, and it was obligated to prove that aspect of the charge beyond a reasonable doubt. Consequently, under the circumstances, it is irrelevant that section 97-5-33(5) does not include a mens rea element. We find no merit to this issue.

II. RENFROW’S ATTEMPTS TO SUPPRESS THE EVIDENCE

¶ 20. Renfrew filed multiple motions intended to suppress the evidence against him. Based on several different rationales, Renfrew vigorously attempted to suppress the evidence that was obtained from his computer. Renfrew also attempted to suppress Investigator Gunter’s written recollection of Renfrew’s March 16, 2007, interview. For clarity’s sake, we have restructured Renfrew’s issues and the various lines of reasoning for those issues. As we review Renfrew's litany of arguments under these issues, we are mindful of our standard of review. “The standard of review regarding the admission or exclusion of evidence is abuse of discretion.” Terrell v. State, 952 So.2d 998, 1005(¶ 31) (Miss.Ct.App.2006). We will only find an abuse of discretion if “a defendant shows clear prejudice resulting from an undue lack of constraint on the prosecution or undue constraint on the defense.” Id. In other words, “[t]his Court shall not disturb a trial court’s decision unless it is clearly wrong.” Id.

A. RENFROW’S COMPUTER

¶ 21. Renfrow repeatedly sought to suppress any and all evidence that the State obtained from his computer. Ren-frew's reasoning was based on the following concepts: (1) there was no probable cause to issue the search warrant because the events that led to Investigator Gun-ter’s decision to obtain the search warrant occurred long before Investigator Gunter sought to obtain the warrant; (2) his computer was contaminated by viruses while it was in the State’s custody; (3) there was a discrepancy between the computer’s actual serial number and the serial number as recorded by the Cyber Crime Center; and (4) the State failed to establish a proper chain of custody. We discuss each of Ren-frew’s arguments in turn.

1. Probable Cause for the Search Warrant

¶ 22. Renfrow claims there was no probable cause for the search warrant that allowed Investigator Gunter to seize the computer. We must exercise caution while discussing this claim, because the State dismissed count one of the two-count indictment by nolle prosequi, and there is still a possibility that the State could re-indict Renfrow for those allegations. In any event, Renfrow contends that the circuit court erred when it did not find that there was no probable cause to issue the search warrant because, according to the two children central to this case, the alleged inappropriate touching occurred nine or ten months before Investigator Gunter sought to obtain the search warrant.

¶ 23. The circuit court judge stated, “as I see the motion, the narrow issue is whether ... dismissing Court One affected the search warrant. I find it does not.” According to Renfrow, “the information relied upon was given by two young children almost one year after the alleged incident, and [it] cannot be deemed credible because they could not state a specific date for the alleged incident.” Renfrow concludes that “the time lapse of almost one year certainly rendered the search warrant stale.” We disagree.

¶ 24. “When reviewing a finding of probable cause to issue a warrant[,] this Court does not make a de novo determination of probable cause, but only determines if there was a substantial basis for the magistrate’s determination of probable cause.” Foley v. State, 914 So.2d 677, 685(¶ 12) (Miss.2005) (citation and internal quotations omitted). “The task of the issuing magistrate is simply to make a practical, common-sense decision based on all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information.” Id. at 685-86.

¶ 25. Renfrow claims that, because the children at issue did not notify an adult of the alleged inappropriate touching and the images on Renfrow’s computer for approximately ten or eleven months, there was no probable cause for the search warrant. “[S]taleness of information may be a defect in probable cause for search warrants.” Flake v. State, 948 So.2d 493, 496(¶ 9) (Miss.Ct.App.2007). However, “[t]he determination of factual currency in the affidavit for a search warrant would be but one factor in the totality of the circumstances for establishing the existence of probable cause.” Id.

¶ 26. Although it is true that the children involved in the underlying alleged incident stated that Renfrow showed them pictures of naked adults and children on his computer and suggested that Renfrow may have touched them inappropriately sometime in April or May 2005, that is not the end of the analysis. Authorities were unaware of the allegation until March 2006. As mentioned, Erwin, a child advocacy counselor, interviewed the children promptly after one of the children first gave a school counselor reason for concern. Investigator Gunter promptly received a copy of the videotape of Erwin’s interviews. After Investigator Gunter watched the interview, he promptly sought to obtain the search warrant. The probable cause for the search warrant was not rendered stale simply because Investigator Gunter first discovered the allegations nine or ten months after the alleged incident occurred. This is especially true in the context of allegations by small children, who may be too ashamed or frightened to inform others that something inappropriate may have occurred because they were expressly ordered or threatened to remain silent. Based on the totality of the circumstances, we find that there was a substantial basis for the issuance of the search warrant. Additionally, it was reasonable for the judge who issued the search warrant to conclude that images on a computer could still be recovered by forensic methods nine or ten months after the children saw them. Sullivan’s examination report stated that she was able to recover “all available files[,] including those previously deleted.” Accordingly, because the images were stored on a computer, the probable cause for Investigator Gunter’s search warrant was not rendered stale by the passage of time. We find no merit to this issue.

2. Integrity of the Original Hard Drive

¶ 27. Renfrow claims that the circuit court should have prohibited the State from introducing any evidence that was obtained from his computer because the State failed to protect the integrity of Ren-frew’s original hard drive. Renfrow contends that there are three reasons to conclude that the State failed to protect the integrity of the original hard drive: (1) the possibility that Renfrow’s hard drive was exposed to virus contamination while in the custody of the Cyber Crime Center; (2) the presence of two “bad sectors” on Ren-frow’s original hard drive; and (3) his allegation that the Cyber Crime Center did not have a sufficient fail-safe system to protect the integrity of the original hard drive.

i. Virus Contamination

¶ 28. Renfrow claims that the circuit court should have suppressed the evidence that was obtained from his computer because the original hard drive might have been exposed to virus contamination while it was in the State’s custody. According to Renfrow, his original hard drive was probably contaminated while it was in the Cy-ber Crime Center’s custody “because so many people had access to the [evidence] vault and made copies from the original hard drive.” First and foremost, Ren-frow’s statement is a mischaracterization of the evidence. According to the expert witnesses from the Cyber Crime Center, two or three people had access to the Cyber Crime Center’s vault at any given time.

¶ 29. Moreover, Renfrow’s argument under this heading is purely speculative. There is absolutely no evidence in the record that either the original or one of the forensic duplicate copies of Renfrow’s hard drive were ever exposed to computer virus contamination while in the State’s custody. While there was some testimony that there were viruses, spyware, adware, or “Trojan” programs on Renfrow’s original hard drive, there was no evidence that those items first appeared on the original hard drive while it was in the State’s custody. The only reasonable inference is that those items were on Renfrow’s original hard drive when Investigator Gunter seized Renfrow’s entire computer. There was no testimony that those items were not on Renfrow’s hard drive before Investigator Gunter seized Renfrow’s computer. There was no evidence that anyone from the Cyber Crime Center exposed Renfrow’s hard drive to possible contamination by logging on the Internet or any other source of contamination. Additionally, the State’s expert witnesses testified that their use of a “write-blocker” prevented any alterations to Renfrow’s original hard drive. Renfrow never presented any evidence to the contrary. There is no merit to this purely speculative claim.

ii. The Presence of “Bad Sectors” on the Original Hard Drive

¶ 30. Renfrow’s next argument under this heading involves the presence of two “bad sectors” on the original hard drive. To support his claim that the Cy-ber Crime Center failed to protect the integrity of his original hard drive, Ren-frow references a portion of Leavitt’s testimony in which Leavitt testified that there were two “bad sectors” on Renfrow’s original hard drive. Renfrow states that Leav-itt “testified that the damaged hard drives have something to do with the way the hard drive operates.” Although Renfrow accurately states that Leavitt found two “bad sectors” on Renfrow’s hard drive, Renfrow is inaccurate in the remainder of his characterization of Leavitt’s testimony.

¶ 31. Leavitt testified that he found two “bad sectors” on Renfrow’s hard drive. The State asked Leavitt to elaborate on what the “bad sectors” meant. Leavitt testified:

A bad sector typically could mean some type of physical damage to the hard drive. These are electronic parts. They have physical moving parts, and they become damaged just like maybe your cassette tape that you listen to in the radio might — portions of it could get damaged where you couldn’t hear it. It’s the same way with a hard drive. Those portions of the hard drive can become damaged and be unusuable by the — by the hardware.

Leavitt went on to testify that it is not uncommon to find bad sectors on a hard drive. Leavitt explained that he examined the damaged sectors to determine whether there was any information stored on them and found no information. Additionally, Leavitt testified that the two damaged sectors would have held very little information. The State asked Leavitt to elaborate regarding the information that could be stored on the two damaged sectors compared to the information that could be stored on the entire hard drive. Leavitt explained that the two sectors would represent “maybe a crumb” of an entire pie.

¶ 32. On cross-examination, Renfrow’s attorney asked Leavitt whether the two “bad sectors” would influence the way Renfrow’s computer operated. Leavitt testified that they would not influence the way Renfrow’s computer operated, but they would influence the way the hard drive operated in that the hard drive would skip over the two damaged sectors and simply move on to the next undamaged sector of the hard drive. Renfrow’s attorney never asked Leavitt to testify as to how the “bad sectors” might have become damaged. Additionally, Renfrow’s computer expert, Nannette Pate, did not discuss the presence of the “bad sectors” during her testimony. As a result, there was no evidence that the “bad sectors” were damaged during the time Renfrow’s hard drive was in the custody of the Simpson County Sheriffs Department or the Cyber Crime Center. Instead, Sullivan’s and Leavitt’s testimonies were that the Cyber Crime Center’s first priority was to maintain the integrity of the original hard drive. There is no basis to con-elude that the presence of the “bad sectors” are indicative of the Cyber Crime Center’s failure to protect the integrity of Renfrow’s original hard drive. Renfrow’s claim under this heading is entirely merit-less.

iii. The Cyber Crime Center’s Fail-Safe Systems

¶ 33. Finally, Renfrow claims the circuit court should have suppressed the evidence that was obtained from his computer because the Cyber Crime Center did not have adequate fail-safe systems to protect the integrity of his original hard drive. Again, Renfrow completely mischaracter-izes the evidence.

¶ 34. Investigator Gunter testified that Renfrow’s computer was off when he first encountered it in Renfrow’s home. Investigator Gunter simply unplugged Ren-frow’s computer when he seized it. He did not turn on Renfrow’s computer to prevent the possibility of any alterations to Ren-frow’s hard drive. He placed evidence tape over the plug ports to the computer to prevent anyone from hooking the computer up and turning it on.

¶ 35. Sullivan and Leavitt testified in great detail regarding the Cyber Crime Center’s fail-safe systems. They described how each aspect of the Cyber Crime Center’s fail-safe systems and the investigative process were designed specifically to protect the integrity of an original hard drive. Sullivan removed the original hard drive and placed a write-blocking device on it to prevent any alterations to the original hard drive. Sullivan made an exact copy of the hard drive and examined the copy. The intended purpose behind examining the copy was to protect the integrity of the original hard drive. Leav-itt made a similar duplicate copy for Ren-frow’s expert to examine. Again, the specific purpose of making a copy was to protect the integrity of the original evidence. Renfrow’s attorney wanted to boot up the original hard drive so his expert could examine it. The State opposed Ren-frow’s request and explained that booting up the original hard drive would destroy the integrity of the original evidence. Suffice it to say, every step of the State’s procedure to gather evidence from the original hard drive was designed to protect the integrity of the evidence. This issue, like the other two under this heading, is meritless.

3. Discrepancy in Serial Numbers

¶ 36. Renfrow draws our attention to a discrepancy in his serial number as it appears on his computer and the serial number that the Cyber Crime Center placed on an evidence receipt when Investigator Gunter delivered Renfrow’s computer to the Cyber Crime Center. Renfrow makes mention of the discrepancy in his claim that the State failed to establish a chain of custody. For brevity’s sake, we discuss that issue in a separate heading.

¶ 37. Renfrow’s computer bore the serial number 0151002229. When Leavitt filled out the evidence receipt, he listed the serial number as 015100229. After the hearing on Renfrow’s first volley of motions, the circuit court found that the discrepancy in the serial numbers was nothing more than a clerical error. Sullivan’s report bore the same serial number that appeared on the computer. While Ren-frow references the discrepancy in his brief and implies that the discrepancy somehow reflects on the State’s chain of custody, he provides no argument to suggest that the circuit court erred when it found that the discrepancy in recording the computer’s serial number was anything more than a clerical error involved with omitting one repetitive digit in the serial number. Consequently, we do not find that the circuit court abused its discretion when it declined to suppress the evidence obtained from the computer simply due to a clerical error.

4. Chain of Custody

¶ 38. Next, Renfrew claims that the circuit court should have suppressed evidence that the State obtained from the copy of Renfrew’s original hard drive because the State failed to demonstrate a proper chain of custody regarding his computer. Renfrew’s reasoning is based on the same arguments he raises regarding the Cyber Crime Center’s fail-safe systems, the presence of bad sectors on his original hard drive, and the number of people who had access to the Cyber Crime Center’s vault. Renfrew does not claim that any specific portion of the chain of custody was insufficient. Accordingly, for brevity’s sake, it is unnecessary to discuss the entire chain of custody when the argument for suppression is based on such a broad allegation.

¶ 39. Yet again, Renfrew’s claim is based on a mischaracterization of the evidence. There was no testimony that “so many” people had access to the Cyber Crime Center’s evidence vault. Instead, Sullivan testified that, depending on the actual date, either two or three people at any given time had a key to access the Cyber Crime Center’s evidence vault. The State presented the Cyber Crime Center’s evidence log. That log detailed each time either Renfrew’s original hard drive or a copy of the original hard drive were removed from the Cyber Crime Center’s vault. The evidence log also detailed who removed the original hard drive or a copy of the original hard drive. Because the State presented an adequate chain of custody and Renfrew failed to point out any specific inadequacy in that chain of custody, we find no merit to this allegation.

5. Duplicate Copy of the Hard Drive

¶ 40. In his final claim under this heading, Renfrew argues that the circuit court “erred in allowing the introduction of the copy of the hard drive as opposed to the original.” There is no merit to this claim. Sullivan and Leavitt both explained why it was necessary to create a duplicate copy of the original hard drive and why it was necessary to test the duplicate. A forensic examination of Renfrew's original hard drive would have altered the original hard drive and, by extension, would have completely destroyed any evidentiary value of the original hard drive. To maintain the integrity of the original hard drive, it was necessary to create a forensic duplicate of the original hard drive and then conduct all examinations on the forensic duplicate. There is no merit to this claim.

B. RENFROW’S STATEMENT

¶ 41. Next, Renfrew argues that the circuit court erred when it did not suppress Investigator Gunter’s statement regarding his recollection of his interview of Renfrew. In an effort to serve Renfrew with a capias, Investigator Gunter left a note on Renfrew's door and requested that Renfrew report to the Simpson County Sheriffs Department. Investigator Gun-ter’s note only included a request that Renfrew go to the sheriffs department. Investigator Gunter’s note did not mention the capias.

¶ 42. In any event, Renfrew went to the sheriffs department as requested. However, once there, Renfrew expressed his willingness to waive his rights and submit to an interview by Investigator Gunter. Renfrew executed a document and waived his rights. Investigator Gunter interviewed Renfrow while Sheriff Lewis sat-in on the interview. Investigator Gunter intended to create a videotape of the interview.

¶ 43. After the interview, Investigator Gunter discovered that he had only obtained a video recording of Renfrew's interview. Investigator Gunter did not have any audio recording of the interview. Investigator Gunter then “immediately sat down and did a statement of facts to what he and Mr. Renfrow [had] talked about.” Sheriff Lewis signed Investigator Gunter’s recollection of the interview and indicated that he agreed with Investigator Gunter’s recollection. According to Investigator Gunter, during the interview, Renfrow stated that he knew he had child pornography on his computer. However, he also stated that he obtained the child pornography inadvertently. According to Renfrow, people on the Internet sent the images without his solicitation of them.

¶ 44. Renfrow filed a motion to suppress Investigator Gunter’s statement regarding the interview. The circuit court denied Renfrew’s motion. Renfrow claims the circuit court erred. According to Ren-frow, the circuit court should have suppressed Investigator Gunter’s statement because: (1) it was not voluntary because Investigator Gunter enticed Renfrow to come to the sheriffs department; (2) Ren-frow never signed the statement; and (3) it was not Renfrew’s statement; instead, it was merely Investigator Gunter’s recollection of what was said during Renfrew’s interview.

¶ 45. As for Renfrew’s claim that Investigator Gunter enticed him to go to the sheriffs department, Investigator Gun-ter merely left a note at Renfrew’s house. In that note, Investigator Gunter requested that Renfrow go to the sheriffs department, but Investigator Gunter did not ask Renfrow to waive his rights or agree to be interviewed. There is no evidence that Investigator Gunter or anyone else promised Renfrow anything in exchange for his agreeing to be interviewed. There is no evidence that Renfrow went to the sheriffs department or agreed to be interviewed based on any enticement by Investigator Gunter or anyone else. We find no error in the circuit court’s decision to deny suppressing Investigator Gunter’s recollection statement based on Renfrew's allegation of enticement.

¶ 46. Renfrow claims that the circuit court should have suppressed Investigator Gunter’s recollection of Ren-frew's interview because it was not actually Renfrew’s statement and Renfrow never signed Investigator Gunter’s recollection statement. However, admissibility of an unsigned statement is an issue of the accuracy of a statement and not the voluntariness of a statement. Craft v. State, 380 So.2d 251, 254 (Miss.1980). We find no merit to Renfrew’s claim that the circuit court erred when it declined to suppress Investigator Gunter’s recollection statement based on the fact that it was Investigator Gunter’s recollection of the interview and Renfrow did not sign the statement. Those matters pertained to the weight and credibility of the statement, and those matters are for the jury to consider. “Matters concerning what weight and credibility to give to the evidence presented are to be decided by the jury.” Walker v. State, 799 So.2d 151, 153(¶ 4) (Miss.Ct.App.2001). It bears mentioning that Investigator Gun-ter’s recollection of Renfrew's statements corroborated Renfrew’s defense at trial. That is, Investigator Gunter noted that Renfrow said he did not solicit the images depicting child pornography and that Ren-frow did not intentionally obtain the images. That was Renfrew’s theory of the case. Accordingly, Renfrow was not prejudiced by the circuit court’s decision to deny Renfrew’s motion to suppress Investigator Gunter’s recollection of Renfrew’s interview. This issue is without merit.

III. RENFROW’S MOTIONS FOR CONTINUANCE

¶ 47. On February 28, 2008, Ren-frow filed a motion for a continuance. At that time, Renfrow’s trial was scheduled for March 19, 2008. Renfrow requested a continuance so that his attorney would have time to review discovery that the State had provided on February 8, 2008. Renfrow also filed a motion to view the evidence. In that motion, Renfrow requested that the circuit court allow his computer expert to review Renfrow’s hard drive. On March 7, 2008, the circuit court conducted a hearing on Renfrow’s numerous pretrial motions. During that hearing, Renfrow’s attorney complained that, although the State had provided its reports regarding the presence of child pornography on Renfrow’s computer, Renfrow’s computer expert had not had an opportunity to personally observe and review a copy of Renfrow’s hard drive. The circuit court judge stated that he would “grant [Ren-frow’s] motion [to view the evidence] with respect to going and viewing the evidence.” Accordingly, the circuit court judge instructed the State to provide Ren-frow’s attorney with dates that Renfrow’s expert could go to the Cyber Crime Center and review a copy of Renfrow’s hard drive. Additionally, the circuit court judge rescheduled Renfrow’s trial date to March 27, 2008.

¶ 48. On March 19, 2008, Renfrow filed another motion for a continuance. In his second motion for a continuance, Renfrow claimed that he had “still been denied ... access to all of the evidence of the State in this matter, more particularly, the original hard drive and the original computer intact as it was obtained.” In other words, Renfrow requested that the circuit court continue his trial until his computer expert could inspect Renfrow’s original hard drive after re-installing the hard drive in Ren-frow’s computer tower. On March 20, 2008, the circuit court conducted a hearing on Renfrow’s second barrage of pretrial motions.

¶ 49. During the hearing on Renfrow’s second motion for a continuance, the State vigorously objected to Renfrow’s computer expert being allowed to re-install and inspect Renfrow’s original hard drive. Leavitt testified dut'ing that hearing. Leavitt explained that Renfrow’s expert would destroy the evidentiary value if she was allowed to install it in Renfrow’s tower and boot it up. Leavitt elaborated and testified that, if one were to boot up Ren-frow’s original hard drive without attaching the write-blocking device, “over 1,000 files would be changed immediately.” The “registry files” would be modified, and the original data could never be recovered again. Leavitt explained that booting up the original hard drive would also change all of the “time date stamps” throughout the computer and the “log files would be changed, deleted, or recreated in some cases.” Finally, Leavitt testified that if Renfrow’s expert were allowed to do as Renfrow requested, that act would “certainly change the entire makeup of [Ren-frow’s] hard drive.” On cross-examination, Leavitt explained that neither he nor anyone else who performs forensic examinations for the Cyber Crime Center ever examined an original hard drive or booted up a copy of a hard drive — much less an original hard drive — without using the previously-mentioned write blocker. The circuit court resolved the matter by instructing the Cyber Crime Center to allow Renfrow’s expert to create her own forensic duplicate copy of Renfrow’s original hard drive. However, when Renfrow’s expert appeared at the Cyber Crime Center, she was not equipped to prepare her own duplicate. Consequently, Leavitt prepared another duplicate copy of Renfrow’s original hard drive as Renfrow’s expert, Pate, observed. To summarize, Pate had access to two forensic duplicates of Ren-frow’s original hard drive.

¶ 50. Renfrow claims that the circuit eourt erred when it denied his motion for continuance. “Trial judges have wide latitude in deciding whether to grant continuances, and that decision is left to the sound discretion of the trial judge.” Evans v. State, 899 So.2d 890, 896(¶ 23) (Miss.Ct.App.2004) (quoting Adams v. State, 772 So.2d 1010, 1014(¶ 16) (Miss.2000)). A trial court’s decision to deny a motion for a continuance is not reversible “unless manifest injustice appears to have resulted from the denial.” Id.

¶ 51. First and foremost, Ren-frow does not indicate what his attorney or his expert might have discovered if the circuit court would have granted his motion for a continuance. Additionally, the undisputed testimony during the hearing on Renfrow’s second motion for a continuance was that Renfrow’s expert would destroy the evidentiary value of the evidence if the circuit court consented to Renfrow’s request. What is more, Renfrow seems to argue that, if the circuit court would have granted his second motion for a continuance, his attorney or his expert might have made some unspecified discovery that may or may not have benefitted his defense. Renfrow had no specific purpose in mind. He simply wanted more time to see if his expert could find something. The circuit court granted Renfrow’s first motion for a continuance and gave Renfrow’s expert more than one opportunity to review the same evidence that the State had. As the State notes, Renfrow’s attorney presented no proof as to how he could have been better prepared to defend Renfrow if he would have had additional time to prepare for trial. Under the circumstances, we find that the circuit court did not abuse its discretion when it denied Renfrow’s second motion for a continuance. Accordingly, we find no merit to this issue.

IV. SUFFICIENCY OF THE EVIDENCE

¶ 52. Renfrow claims the evidence against him was insufficient to convict him of possession of child pornography. In summary, he argues that: he did not know those files were on his computer; he never sent the files to anyone; and he was a novice with using computers.

¶ 53. “A motion for a judgment notwithstanding the verdict is a challenge to the sufficiency of the evidence.” Gilbert v. State, 934 So.2d 330, 335(¶ 9) (Miss.Ct.App.2006). As our Mississippi Supreme Court has stated:

in considering whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.... [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. 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 reversé and render.

Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (internal citations and quotations omitted). However, this Court will determine that there was sufficient evidence to sustain the jury’s verdict if the evidence was “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.” Id. (internal citations and quotations omitted).

¶ 54. Renfrow was indicted for possession of child pornography in violation of Mississippi Code Annotated section 97-5-33(5). As mentioned, although section 97-5-33(5) does not contain a mens rea element, the language of the indictment included an allegation that Renfrow willfully possessed the images depicting child pornography.

¶ 55. It was undisputed that several images depicting child pornography were found on Renfrew's computer. Renfrow argued that he did not solicit the images at issue and that he obtained them inadvertently. According to Renfrow, he had limited knowledge about computers, and the images appeared on his computer after he clicked the word “attachment” at the bottom of the computer screen while using a “chat program” called ICQ. However, Ren-frow also attempted to attribute the child pornography images to other sources. Pate, Renfrew's expert witness, testified that: (a) she found numerous viruses on the duplicate clone of Renfrew's hard drive; (b) she found a “porn net Trojan virus” on Renfrew’s computer; (c) the “porn net Trojan virus” causes adult pornographic images pop up on a computer screen; (d) she found a “backdoor Trojan virus” that allows someone to take control of a computer without an owner’s knowledge; (e) a “backdoor Trojan virus” can hide and disguise itself; and (f) Renfrow could have accepted the images without knowing exactly what they were.

¶ 56. However, there was no evidence that any of the computer viruses or other programs that Pate described actually transferred any of the images of child pornography. Pate’s testimony in that regard was merely that the viruses or “Trojan” programs theoretically could have been the reason the images at issue were on Renfrew's computer. Pate’s testimony was in stark contrast to Sullivan’s testimony and Leavitt’s testimony. Both Leavitt and Sullivan testified that viruses or “Trojan” programs were not responsible for placing the pornographic images of children on Renfrew’s computer. Leavitt testified that, because Renfrow used a dial-up internet connection that used “dynamic IP addressing,” it was impossible for someone to remotely control Renfrew's computer. Both Leavitt and Sullivan testified that Renfrow created a file under the title “PEDO” and stored the images at issue in that file. Leavitt testified that one of the images of child pornography was attached to an e-mail that was stored in Renfrew’s “outbox.” Renfrew’s e-mail was protected by a password.

¶ 57. Additionally, the State’s experts discovered e-mails that were sent from Renfrew’s e-mail address. The only inference presented at trial was that Renfrow wrote the stories contained in each e-mail. One such e-mail included a story that Ren-frow wrote in which a fifteen-year-old boy reminisced in extremely graphic detail how he became attracted to his pre-teen sister and eventually raped her. In a different e-mail, Renfrew wrote a story about a father who proudly reminisces in extremely graphic detail about the time he encouraged his twelve-year-old twin son and daughter to have sex with one another. In that story, the father molested both children, and after encouraging his twelve-year-old twin children to have sex with one another, the father committed statutory rape of his twelve-year-old daughter. The father continued to do so for months, until his daughter became pregnant. In the story within that e-mail, the father closed by describing how he held his granddaughter while hoping for more grandchildren so he could “educate” another generation of his family. In yet another e-mail, Renfrew wrote a story about an adult male who fondly described having sex with his preteen niece and daughter.

¶ 58. Finally, Dr. Larry Gibson, a physician certified in family medicine, testified that the images at issue depicted sexually explicit conduct involving girls as young as six or seven years old. According to Dr. Gibson, the eldest child depicted in the various images was approximately twelve years old.

¶ 59. We can confidently conclude that reasonable and fair-minded jurors could have found that the State proved each element of the offense as stated in the indictment beyond a reasonable doubt. Accordingly, we find that the circuit court did not abuse its discretion when it denied Renfrew’s motion for a JNOV. We find no merit to this issue.

V. WEIGHT OF THE EVIDENCE

¶ 60. Renfrew claims the circuit court erred when it denied his motion for a new trial. According to Renfrew, the circuit court should have granted his motion for a new trial because the jury’s verdict is contrary to the overwhelming weight of the evidence. We are mindful that; as we review the circuit court’s decision to deny a motion for a new trial, this Court “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.” Bush, 895 So.2d at 844(¶ 18). The supreme court has further instructed that, when reviewing a trial court’s decision to deny a motion for a new trial;

the court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. However, the evidence should be weighed in the light most favorable to the verdict. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Rather, as the “thirteenth juror,” the court simply disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.

Id. (footnote and internal citations and quotations omitted).

¶ 61. To support this issue, Renfrow discusses the same matters that he discussed to support his challenge of the sufficiency of the evidence. Based on evidence discussed in the analysis under Renfrow’s challenge of the sufficiency evidence, when viewed in the light most favorable to the verdict, we find that the jury’s verdict was not so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. We find no merit to this issue.

¶ 62. THE JUDGMENT OF THE SIMPSON COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF CHILD PORNOGRAPHY AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR.

      . We omit the children's names from this opinion to maintain their anonymity.

      . Those allegations will be discussed in slightly greater detail as necessary. However, Ren-frow was indicted for those allegations at the same time he was indicted for possession of child pornography. The State nolle prossed the inappropriate touching count of the indictment, and Renfrow has not been prosecuted for any alleged inappropriate touching of the children. Because there is still a possibility that Renfrow may be prosecuted for those allegations, we have avoided discussing them in any detail except as necessary. No portion of this opinion should be construed as a finding related to those potential allegations.

      . Using forensic computer tools and programs, it is possible to compare an original hard drive to a forensic duplicate of a hard drive to test for consistency. However, those tools and programs avoid having to boot up an original hard drive.

      . The State's experts found an e-mail from someone who was replying to an earlier email from Renfrew. In Renfrew's earlier email, Renfrew stated that he was writing stories about "very young girls” and that one of his stories was about “a father and his 9-year-old daughter.” Renfrew also asked the recipient whether he was offended by incest.


author: IRVING, J.,

text:
    Thomas J. AMERSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2009-CP-00630-COA.
    Court of Appeals of Mississippi.
    Dec. 8, 2009.
    Rehearing Denied March 2, 2010.
    Certiorari Denied May 13, 2010.
    Thomas J. Amerson (Pro Se), attorney for appellant.
    Office of the Attorney General, by Lisa Lynn Blount, attorney for appellee.
    Before MYERS, P.J., IRVING and GRIFFIS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Thomas J. Amerson was convicted of arson and, in a separate cause number, of destroying public property and disorderly conduct. He was sentenced in the aggregate to ten years’ imprisonment as a habitual offender. At the time of his convictions, Amerson was also serving a five-year sentence for carrying a concealed weapon. Amerson appealed the arson conviction, which was affirmed by the Mississippi Supreme Court in Amerson v. State, 628 So.2d 1383 (Miss.1993). Thereafter, Amerson unsuccessfully sought permission from the Mississippi Supreme Court to pursue post-conviction relief (PCR) in the circuit court. Notwithstanding his failure to obtain permission, Amerson filed a PCR motion in the Lauderdale County Circuit Court, challenging his sentence for the arson conviction.

¶ 2. The circuit court found that it lacked jurisdiction to consider Amerson’s PCR motion pursuant to Mississippi Code Annotated section 99-39-7 (Rev.2007) because he had failed to obtain permission from the Mississippi Supreme Court to proceed in the trial court.

¶ 3. A trial court’s denial of post-conviction relief will not be reversed absent a finding that the trial court’s decision was “clearly erroneous.” Callins v. State, 975 So.2d 219, 222(¶ 8) (Miss.2008) (quoting Lambert v. State, 941 So.2d 804, 807(¶ 14) (Miss.2006)). In addition, “questions of law are reviewed de novo.” Id. (quoting Lambert, 941 So.2d at 807(¶ 14)).

¶ 4. In this case, the circuit court was correct that it did not have jurisdiction to consider Amerson’s PCR motion. Section 99-39-7 states that there must be “an order granted allowing the filing of such motion in the trial court.” Therefore, we affirm the judgment of the circuit court.

¶ 5. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUD-ERDALE COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. ROBERTS, J., NOT PARTICIPATING.