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

text:
    Debra Darlene BURNS and William Dale Burns, Appellants v. Matthew GRAY and Jody Gray, Appellees
    NO. 2017-CA-01121-COA
    Court of Appeals of Mississippi.
    October 9, 2018
    ATTORNEYS FOR APPELLANTS: FRANK H. SHAW JR., KOSCIUSKO, F. GREGORY MALTA
    ATTORNEYS FOR APPELLEES: EDWARD C. TAYLOR, NANCY SIPLES BRUMBELOE, GULFPORT
    BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Debra Darlene Burns and her husband William Dale Burns filed a complaint against their landlords, Matthew and Jody Gray, and alleged injuries related to a fall they claim was "as a result of the irregular pattern of the basement stairs." The circuit court found the Burnses' expert witness's testimony and opinions regarding causation were based on speculation and, therefore, struck his testimony and entered summary judgment in favor of the Grays. The Burnses timely appealed. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. From July 2008 to February 2015, the Burnses lived in a rental house owned by the Grays. Prior to renting the house, the Burnses inspected the house with the Grays' rental agent. Shortly after they moved in, the Burnses advised the Grays of their concerns about the basement stairs, including the steepness of the stairs.

¶ 3. On January 21, 2012, Mrs. Burns fell while walking down the stairs from the first floor of the residence to the basement. On January 15, 2015, the Burnses filed a complaint, alleging breach of contract, premises liability, and negligence per se. The Burnses claimed the Grays were negligent in "fail[ing] to use reasonable care in the design, structure, and maintenance of the steps and railing leading to the basement of the residence on their premises, causing Mrs. Burns to fall and thereby sustain severe bodily injury." The Burnses contend that Mrs. Burns incurred physical injuries and that Mr. Burns incurred a loss of consortium and services as a result of the fall.

¶ 4. Neither Mr. or Mrs. Burns have personal knowledge of how or why Mrs. Burns fell. Mrs. Burns has no memory of the day of the incident, and Mr. Burns was not at home when Mrs. Burns fell. The only person who was with Mrs. Burns at the time of her fall was her nephew, Michael Faulkner.

¶ 5. Faulkner, who was thirteen or fourteen years old at the time of the fall, testified that he saw Mrs. Burns begin to walk down the basement stairs from the first floor. According to Faulkner, Mrs. Burns "started down the stairs" and "made it to about the third step ... and ... pretty much face plant[ed] down the rest of the stairs." Faulkner was behind Mrs. Burns at the top of the stairs and did not see her feet when she fell. Faulkner explained that at the time of her fall, Mrs. Burns was carrying cigarettes and possibly a cup in one hand. Faulkner "think[s] [Mrs. Burns] tried to" grab the handrail, but he did not see her touch it. Faulkner testified that he did not know why Mrs. Burns fell but "assume[d] she lost her footing or something."

¶ 6. The Burnses' expert witness, Daniel Jason Ramsey, conducted a safety analysis related to the injuries sustained by Mrs. Burns. As part of his analysis, Ramsey inspected and took measurements of the stairway and reviewed applicable building codes. He further interviewed Faulkner and obtained information from the Burnses' attorney.

¶ 7. On August 31, 2016, Ramsey submitted an affidavit wherein he explained that as a result of his investigation, he "determined that the pitch of the subject stairway was constructed at an angle of 47.11 degrees, classifying it as a 'steep stair type.' " Ramsey found "that the construction did not comply with the standards set out in the governing building code." Ramsey further found "that the handrails installed as a component of the stairway failed to comply with applicable industry standards, in that they were constructed flush against the adjoining walls, offering no graspable surface and permitting the user no handhold."

¶ 8. Ramsey opined that "[b]ased upon [his] interview of ... Faulkner, who observed Mrs. Burns start to descend the stairs, then stumble and fall, ... the steep pitch of the stairway and the narrow width of the steps were the proximate cause of or a substantial contributing factor causing the accident, making Mrs. Burns overbalance and fall forward." He further opined that "the absence of a proper handrail" was also a substantial contributing factor causing the accident."

¶ 9. Ramsey was subsequently deposed. During his deposition, Ramsey testified that he "d[id]n't really know why [Mrs. Burns] fell exactly and at what step, but she lost her balance and she fell." When asked what evidence he had that the stairs caused Mrs. Burns to fall, Ramsey explained that the stairs were "out of compliance." Ramsey acknowledged he could not rule out other causes.

¶ 10. The Grays filed a motion for summary judgment and a motion to strike Ramsey's testimony. Following a hearing, the circuit court granted both motions. Specifically, the circuit court stated:

the opinions of Mr. Ramsey are mere speculation as to the element of proximate cause and do not prove causation. Mr. Ramsey did not testify that any action or inaction of [the Grays] was the proximate cause of Mrs. Burns['s] fall; instead, Mr. Ramsey opined that the fact that the stairs were steep and narrow means they must have caused or contributed to Mrs. Burns['s] fall. However, Mr. Ramsey specifically stated that he did not know what caused Mrs. Burns to fall and acknowledged that he could not rule out all other variables. This testimony is insufficient to show causation.

¶ 11. The circuit court concluded that "[t]here [wa]s simply not enough competent evidence that would allow a determination of the cause of Mrs. Burns'[s] fall. As a result, the circuit court found that "summary judgment must be entered as a matter of law since [the Burnses] cannot establish the proximate cause of Mrs. Burns'[s] fall."

¶ 12. The Burnses now appeal and argue the circuit court erred in granting summary judgment and striking their expert witness.

ANALYSIS

I. Whether the circuit court erred in granting summary judgment .

¶ 13. The Burnses first argue the circuit court erred in granting the Grays' motion for summary judgment. "This Court reviews a [circuit] court's grant or denial of a motion for summary judgment de novo." Amfed Nat'l Ins. Co. v. NTC Transp. Inc. , 196 So.3d 947, 953 (¶ 18) (Miss. 2016). "Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Id. (internal quotation mark omitted). "This Court must view the evidence in the light most favorable to the party against whom the motion has been made." Id. (internal quotation mark omitted). However, "the party opposing summary judgment may not rest upon mere allegations or denials of his pleadings, but his response ... must set forth specific facts showing that there is a genuine issue for trial." Id. at 953-54 (internal quotation mark omitted). "The non-moving party's claim must be supported by more than a mere scintilla of colorable evidence; it must be evidence upon which a fair-minded jury could return a favorable verdict." Van v. Grand Casinos of Miss. Inc. , 767 So.2d 1014, 1018 (¶ 7) (Miss. 2000).

¶ 14. "A claim of negligence requires the plaintiff to prove by a preponderance of the evidence (1) duty, (2) breach of duty, (3) causation, and (4) injury." Rogers v. Barlow Eddy Jenkins P.A. , 22 So.3d 1219, 1222 (¶ 11) (Miss. Ct. App. 2009) (internal quotation mark omitted). "In order to survive a motion for summary judgment in a negligence action, the plaintiff must put on evidence showing that the defendant breached a duty of care and that the breach proximately caused h[er] injury." Id. "Proximate cause requires: (1) cause in fact; and (2) foreseeablity." Ogburn v. City of Wiggins , 919 So.2d 85, 91 (¶ 21) (Miss. Ct. App. 2005). "Cause in fact means that the act or omission was a substantial factor in bringing about the injury, and without it the harm would not have occurred." Id. (internal quotation mark omitted).

¶ 15. The Burnses claim they "affirmatively established that the proximate cause of Mrs. Burns's injuries was the dangerous stairway and defective railing." In support of their claim, the Burnses rely on the testimony and opinions of Faulkner and Ramsey. However, the record shows neither Faulkner nor Ramsey know what caused Mrs. Burns to fall.

¶ 16. Although Faulkner "assume[d] she lost her footing," he admitted he did not see Mrs. Burns's feet at the time of the fall and does not know why she fell. The Burnses assert "Faulkner's eyewitness testimony and sworn affidavit were presented to the [circuit] court in which he swore that Mrs. Burns lost her footing and tumbled down the stairs because of the 'steep, narrow construction of the stairs.' " However, the affidavit upon which the Burnses rely was executed by Faulkner five months after Faulkner testified that he did not know why Mrs. Burns fell. "[T]he nonmovant cannot defeat a motion for summary judgment by submitting an affidavit which directly contradicts, without explanation, his previous testimony." Callicutt v. Prof'l Servs. of Potts Camp Inc. , 974 So.2d 216, 220 (¶ 16) (Miss. 2007). Because Faulkner does not know why Mrs. Burns fell, he cannot establish the proximate cause of her fall.

¶ 17. Additionally, in his affidavit, Ramsey opined that "the steep pitch of the stairway and the improperly constructed handrails ... caused Mrs. Burns to fall." However, during his subsequent deposition, he testified that he "really d[id]n't know why she fell exactly and at what step, but she lost her balance and she fell." Ramsey's opinion that Mrs. Burns "lost her balance" was based on his conversation with Faulkner and Faulkner's assumption that Mrs. Burns "lost her footing." Ramsey speculates that because she lost her balance and fell, it must have been due to the stairway configuration. He testified as follows:

[Defense Counsel] And looking at paragraph 7 [of your affidavit], your interview of Mr. Faulkner who observed M[r]s. Burns start to descend the stairs and then stumble and fall, how do you know she stumbled?
[Ramsey] That's what he told me.
[Defense Counsel] Again, how could he say she stumbled when he couldn't see her feet?
[Ramsey] I don't understand that. It's just what I was told. He told me that she stumbled and fell.
....
[Defense Counsel] But, I mean, you're taking it a step further, saying, well, she stumbled. It had to be because of the steepness of the stairs. There are a lot of reasons she could have stumbled other than the incline of those stairs, you would agree with me on that?
[Ramsey] I would agree with that.
[Defense Counsel] And without someone seeing her feet, we're just guessing, aren't we?
[Ramsey] I think you could tell if somebody stumbled without seeing the front of their feet.
[Defense Counsel] But what caused them to stumble, there are a lot of -
[Ramsey] There's unknowns.

¶ 18. The record shows Ramsey took no action to rule out other factors that might have contributed to Mrs. Burns's fall. Although in his affidavit, Ramsey opines that shoes, clothing, loose objects, or tripping hazards did not contribute to the fall, he admitted during his deposition that such opinions were based solely on information provided to him by Faulkner or the Burnses' counsel. Indeed, Ramsey acknowledged that he never saw the shoes or clothing Mrs. Burns was wearing at the time of the fall and did not have pictures of the items. Moreover, Ramsey acknowledged that he did not see any pictures of the stairs taken immediately after the fall in order to determine for himself whether any tripping hazards were present. Thus, Ramsey's elimination of such factors was based, not on his independent investigation but, instead, on what Mrs. Burns's nephew and Mrs. Burns's attorney told him. In other words, Ramsey eliminated those factors simply because he was told they did not contribute to Mrs. Burns's fall.

¶ 19. Ramsey further testified that he did not believe Mrs. Burns fainted. However, once again, he based this opinion on what he was told by Faulkner. Ramsey testified as follows:

[Defense counsel] And if she fainted, she was gonna fall down the steps?
[Ramsey] If she fainted, but she didn't faint.
[Defense counsel] How do you know?
[Ramsey] They said she tripped.
[Defense counsel] How do you know? Nobody saw her feet. How do you know she tripped?
[Ramsey] She fell forward.
[Defense counsel] I mean, you're just speculating, you would agree with me on that?
[Ramsey] She was stepping. She was descending down. I don't know at what step, but she was going down.
[Defense counsel] But nobody saw her feet, so how do you know she was stepping down at the time she fell?
[Ramsey] Mr. Faulkner was behind her, and he saw her going that way, going in that direction.
[Defense counsel] But whether she was actually stepping when this accident happened, you don't know? She could have been standing on the steps and passed out as far as we know?
[Defense counsel] You would disagree with that?
[Ramsey] She could have.

¶ 20. Importantly, Ramsey did not investigate or have knowledge of the medications Mrs. Burns was taking at the time of her fall. The record indicates that on the day of her fall, Mrs. Burns was taking Lortab and may have consumed alcohol. The following discussion occurred:

[Defense counsel] Based on your training, that raises a red flag, doesn't it, when somebody is taking pain medication ...?
[Ramsey] Yes, sir.
[Defense counsel] Because people - their gait is not as steady as other people, you would agree with that?
[Ramsey] Yes, sir.
....
[Defense counsel] And if someone's taking narcotic pain medication while they're descending some stairs, that would be something you would think would be important in regard to your accident investigation?
[Ramsey] Yes, sir.
[Defense counsel] And you weren't told that she had been taking narcotic pain medication on the day of this accident, were you?
[Ramsey] Not that I recall.
[Defense counsel] And that's something that you would have wanted to know when you formulated your opinion, right?
[Ramsey] Yes, sir.
[Defense counsel] And so you did not factor that in as to maybe other reasons maybe she would have fallen, did you?
[Ramsey] No, sir.

¶ 21. When asked what evidence he had that the stairs caused Mrs. Burns to fall, Ramsey stated the stairs "[were] out of compliance." He explained that "when you step down at 47.11 degrees, it causes your leg to buckle, especially somebody that's shorter ... [w]hen you descend down, you are gonna have the opportunity at that degree to fall." However, Ramsey admitted that no one told him they saw Mrs. Burns's leg buckle. The following discussion then occurred:

[Defense counsel] And under your theory for these stairs to have contributed to her fall, [Mrs. Burns] would have had to have taken a step and her leg would have had to have buckled for her to fall.
[Ramsey] Right.
[Defense counsel] But nobody saw that?
[Ramsey] Could have, but he's not telling me.
[Defense counsel] In ... Faulkner's deposition, and the statement you took from him, he never told anybody he saw her leg buckle?
[Ramsey] I never was told buckle. It was just stumble.

¶ 22. When defense counsel suggested that Ramsey was "speculating that by stepping down, somehow [Mrs. Burns's] leg buckled, and at the same time ... ignoring other possibilities," Ramsey did not disagree. Instead, Ramsey acknowledged that other factors such as "the Lortab, she fainted, she just wasn't paying attention and she missed a step" could have happened to cause Mrs. Burns to fall.

¶ 23. In Rogers , a case similar to the one before us, we affirmed the circuit court's entry of summary judgment based on insufficient evidence of causation. Rogers , 22 So.3d at 1227 (¶ 29). In Rogers , Rogers died as a result of injuries he suffered after falling from a wall-mounted ladder. Id. at 1220 (¶ 1). A wrongful death action was thereafter filed and alleged that the design, construction, and installation of the ladder caused Rogers's injuries and ultimate death. Id. at 1221 (¶ 5).

¶ 24. The only eyewitness to the accident was Elbert Martin, who climbed the ladder immediately before Rogers. Id. at (¶ 4). Martin "saw Rogers's head appear at the roof hatch, but then it disappeared." Id. Martin did not know what caused Rogers to fall. Id.

¶ 25. A subsequent inspection by the Occupational Safety and Health Administration (OSHA) determined that the ladder did not comply with OSHA's specified dimensions. Id. at (¶ 5). The plaintiffs claimed that OSHA's regulations should have placed the defendant on notice that the ladder was defective and dangerous. Id. The plaintiffs further claimed the dimensional defects of the ladder and the placement of the ladder caused Rogers to fall. Id.

¶ 26. As evidence of causation, the plaintiffs relied on the testimonies of two expert witnesses, Dr. Hall and Dr. Shenefelt. Id. at 1223 (¶ 14). Dr. Hall, an architect, opined that the fall occurred as a result of the defective construction of the ladder. Id. at (¶ 15). However, Dr. Hall was unable to state that had the ladder met OSHA's guidelines, Rogers would not have fallen. Id. at 1224 (¶ 16). Furthermore, Dr. Hall testified that there were other conditions such as Rogers's personal health "or other things" that could have caused Rogers to fall. Id. Dr. Hall admitted that he did not know what caused Rogers's fall. Id.

¶ 27. Dr. Shenefelt, a mechanical engineer, made no independent investigation into the cause of the fall. Id. at (¶ 17). Instead, his investigation was limited to his discussions with plaintiffs' counsel. Id. Like Dr. Hall, Dr. Shenefelt opined that the ladder did not meet OSHA's regulations, but stated there were other things, such as a stroke, that could have happened to cause the fall. Id. Dr. Shenefelt made no effort to determine what Rogers was doing at the time he fell or how many times Rogers had used the ladder without incident. Id. at (¶ 18).

¶ 28. The circuit court granted summary judgment in favor of the defendant and found:

even if the [c]ourt were to allow testimony about OSHA guidelines, the [p]laintiffs still cannot meet their burden of proof on causation because the [p]laintiff fail to present any witnesses who can testify as to how and why Rogers fell or that had the ladder met OSHA guidelines Rogers would not have fallen. Stated another way, no proof exists to establish a reasonable inference that any negligence on the part of the [d]efendants proximately contributed to the [p]laintiffs' damages.... The [p]laintiffs in this case present only conjecture and possibility as to the cause of Rogers's fall. Such speculation is never sufficient to sustain a verdict in a tort action because a mere scintilla of negligence cannot create a jury issue.

Id. at 1223 (¶ 13) (internal quotation marks omitted).

¶ 29. On appeal, we agreed and stated:

[n]o one knows if Rogers slipped, missed a step, became dizzy, or simply fell for some other unknown reason totally unrelated to the dimensions of the ladder. Rogers's presence on the ladder at the time of his fall was not enough to say the ladder was the proximate cause of his fall when there was no evidence presented as to why Rogers fell. The [circuit] court's basis for granting summary judgment was that the [a]ppellants failed to show causation, and the [a]ppellants' experts do nothing to advance their theory of causation.

Id. at 1224 (¶ 20). We concluded that the experts' opinions were "a mere guess, speculation, or conjecture as to the element of proximate cause" and insufficient to create a genuine issue of material fact. Id. at 1227 (¶ 28). As a result, we affirmed the entry of summary judgment. Id. at (¶ 29).

¶ 30. Here, like the eyewitness in Rogers , Faulkner had a restricted view of the fall and did not know what caused the fall. Instead, Faulkner could only assume Mrs. Burns lost her footing.

¶ 31. Additionally, as in Rogers , Ramsey found the stairs and handrail did not comply with the applicable building codes and opined that such noncompliance caused Mrs. Burns's fall. Yet, like the experts in Rogers , Ramsey did not know why Mrs. Burns fell. Ramsey's finding that Mrs. Burns "lost her balance" was based on his conversation with Faulkner, who "assumed" his aunt lost her footing.

¶ 32. Moreover, like the experts in Rogers , Ramsey could not rule out other causes of the fall. He did not know or ask about her use of medication, despite admitting that such information would be an important factor in his investigation. He did not consider Mrs. Burns's use of Lortab and never revised or supplemented his opinion. Additionally, his only source of information regarding potential tripping hazards came from his discussions with Mrs. Burns's counsel and her nephew, Faulkner, who was behind Mrs. Burns at the top of the stairs, and did not see her feet and therefore could not have seen the area where she fell.

¶ 33. Importantly, like Dr. Hall in Rogers , Ramsey could not say that had the stairs been in compliance, Mrs. Burns would not have fallen. Indeed, Ramsey admitted that if Mrs. Burns fainted, she would have fallen down the stairs even if the stairs were code-compliant. Additionally, Ramsey acknowledged that Mrs. Burns's use of pain medication would have affected her gait and steadiness, regardless of code-compliant stairs.

¶ 34. When asked what evidence he had to support his theory of causation, Ramsey responded that the stairs were "out of compliance." Although Ramsey explained that "step[ping] down" the noncompliant stairs would "cause[ ] your leg to buckle," he acknowledged there was no evidence to suggest that Mrs. Burns's leg actually buckled. Moreover, there is no evidence that Mrs. Burns was even taking a step down when she fell. Thus, as in Rogers , it appears Ramsey ultimately relied upon Mrs. Burns's presence on the "out of compliance" stairway to support his opinions on causation. However, as the record indicates:

[n]o one knows if [Mrs. Burns] slipped, missed a step, became dizzy, or simply fell for some other unknown reason totally unrelated to the dimensions of the [stairs]. [Mrs. Burns's] presence on the [stairs] at the time of h[er] fall [i]s not enough to say the [stairs] was the proximate cause of h[er] fall when there was no evidence presented as to why [she] fell.

Id. at 1224 (¶ 20).

¶ 35. We find the Burnses have presented only conjecture and possibility as to the cause of Mrs. Burns's fall. Such speculation is insufficient to defeat a motion for summary judgment, because more than a scintilla of colorable evidence is required. Van , 767 So.2d at 1018 (¶ 7). As the Burnses have failed to present sufficient evidence to prove the necessary element of causation, summary judgment was proper.

¶ 36. The Burnses suggest the circuit court "incorrectly viewed the evidence" since it "did not view the evidence in a light most favorable to [them]." The Burnses assert, "[h]ad the [circuit court] considered the evidence ... in the light most favorable to them, [it] would have denied the motion for summary judgment because the expert evidence establishe[d] that the stairway pitch and non-complying stairway rails were a substantial contributing factor to Mrs. Burns's fall." However, as discussed, Ramsey's expert opinions were based on speculation and conjecture.

¶ 37. "Summary judgment may not be defeated through expert opinions that are not based on facts but instead are based on a guess, speculation, or conjecture." Rogers , 22 So.3d at 1225 (¶ 21). Thus, summary judgment was granted not because the circuit court failed to view the evidence in the light most favorable to the Burnses, but because the Burnses failed to produce competent evidence of causation for the circuit court to consider.

II. Whether the circuit court erred in striking Ramsey .

¶ 38. The Burnses next argue the circuit court erred in striking their expert, Ramsey. "The admission of expert testimony is within the sound discretion of the [circuit] judge." McKee v. Bowers Window & Door Co. , 64 So.3d 926, 931-32 (¶ 16) (Miss. 2011). "Therefore, the decision of a [circuit] judge will stand unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion." Id. at 932 (¶ 16) (internal quotation marks omitted).

¶ 39. Mississippi Rule of Evidence 702 provides:

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

¶ 40. The Burnses assert Ramsey "applied reliable methods, techniques and principles to acquire sufficient data that should have been admitted into evidence." However, even if Ramsey's methods were reliable and his measurements were accurate, his testimony regarding causation and his overall opinion that Mrs. Burns fell because the stairs were too steep and narrow were not based on sufficient facts or data, as required by Rule 702, but, instead, on speculation. Indeed, Ramsey's opinion is "based upon [his] interview of the sole eyewitness to the accident, Faulkner...." Even assuming Ramsey's testimony regarding the building codes and the dimensions of the stairs is correct, "there is no way to make the leap from the failure to meet [those building codes] to the proximate cause of [Mrs. Burns's] fall." Rogers , 22 So.3d at 1225-26 (¶ 24).

¶ 41. Despite his determination that the stairs were not in compliance with the applicable building codes, Ramsey has not identified any facts which would allow him to connect the noncompliant stairway to how Mrs. Burns actually fell. Thus, any opinion Ramsey reached beyond the physical condition of the stairway was only through speculation and conjecture. As a result, the circuit court did not abuse its discretion in striking Ramsey's testimony.

CONCLUSION

¶ 42. As the Burnses are unable to establish the proximate cause of Mrs. Burns's fall, summary judgment was appropriate. Accordingly, we affirm the judgment of the circuit court.

¶ 43. AFFIRMED.

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

      Ramsey's deposition testimony is discussed in more detail in our analysis.

      According to Faulkner, Mrs. Burns's back was to him when she fell.

      Faulkner testified that Mrs. Burns "started down [the stairs]" and "made it to about the third step" and then "pretty much face plant[ed] down the rest of the stairs."


source: Caselaw Access Project

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

license: Public Domain

text:
    Joe Clyde TUBWELL a/k/a Joe C. Tubwell a/k/a Joe Tubwell, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00622-COA
    Court of Appeals of Mississippi.
    October 9, 2018
    ATTORNEY FOR APPELLANT: JOE CLYDE TUBWELL (PRO SE)
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: ROBERT E. HAYES JR., Southaven, WAYNE DOUGLAS HOLLOWELL III
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. Joe Tubwell appeals, pro se, the judgment of the DeSoto County Circuit Court (circuit court), dismissing his appeal. Because we find that the County Court of DeSoto County (county court) erroneously dismissed Tubwell's appeal and the circuit court, relying upon the effects of the erroneous dismissal, also erred in dismissing the appeal, we reverse and remand.

FACTS

¶ 2. The issue in this case emanates from a criminal appeal taken from the Municipal Court of Southaven, Mississippi (municipal court), wherein Tubwell was found guilty on October 14, 2015, of a seat-belt violation involving our child-restraint law: Mississippi Code Annotated section 63-7-301 (Rev. 2013). Following his conviction, Tubwell was assessed a fine and court costs totaling $278. He filed his notice of appeal in the county court the following day, along with a motion to proceed in forma pauperis (IFP) and a pauper's oath affidavit.

¶ 3. In the meantime, in cause number S2015-0013 in the county court, Tubwell, on April 14, 2015, had been granted IFP status. Tubwell has appealed from the final judgment entered in that case, and that appeal is before us as case number 2017-KM-00795-COA.

¶ 4. Also on May 2, 2016, the county court, on its own motion, pursuant to Rule 12.02 of the Uniform Rules of Circuit and County Court (URCCC), dismissed with prejudice Tubwell's appeal. The court stated that Tubwell "failed to perfect his appeal by paying all costs and bonds or getting permission to proceed [IFP]." As stated, at the time of his attempted appeal from the municipal court judgment, Tubwell filed in the county court, not the municipal court, a motion to proceed IFP, along with a pauper's oath affidavit. Also, on May 2, 2016, the county court issued an order of procedendo dismissing the appeal and remanding the case to the municipal court for execution of the October 14, 2015 judgment.

¶ 5. On May 4, 2016, Tubwell filed an appeal to the circuit court of the county court's May 2, 2016 order dismissing his original appeal. On the same day and in the same court, he also filed another motion for leave to proceed IFP, an affidavit in support of indigency, and a motion requesting an appeal bond pursuant to Rule 12.03 of the URCCC. On September 26, 2016, the City of Southaven filed a motion to dismiss in the county court. On April 4, 2017, the circuit court dismissed Tubwell's appeal with prejudice after finding that he was attempting to appeal a non-appealable order-the order of procedendo entered by the county court on May 2, 2016. It is from that order of dismissal that Tubwell now appeals.

DISCUSSION

¶ 6. "On appeal, this Court applies a de novo standard when reviewing a trial court's grant of a motion to dismiss. Additionally, we recognize that whether a court obtained appellate jurisdiction is a question of law, which we review de novo." Alison v. State , 200 So.3d 469, 471 (¶ 10) (Miss. Ct. App. 2016) (citation and internal quotation marks omitted).

¶ 7. Rule 12.02(a)(1) of the URCCC, which governed appeals from municipal courts, stated in pertinent part:

Mandatory Bonds or Cash Deposits. Any person adjudged guilty of a criminal offense by a justice or municipal court may appeal to county court or, if there is no county court having jurisdiction, then to circuit court by filing simultaneously a written notice of appeal, and both a cost bond and an appearance bond (or cash deposit) as provided herein within 30 days of such judgment with the clerk of the circuit court having jurisdiction. This written notice of appeal and posting of the cost bond and the appearance bond or cash deposit perfects the appeal. The failure to post any bond or cash deposit required by this rule shall be grounds for the court, on its own motion or by motion of another, to dismiss the appeal with prejudice and with costs. The clerk of the court shall not accept, file and docket the written notice of appeal without the accompanying cost bond and appearance bond or cash deposit, unless the court has allowed the defendant to proceed in forma pauperis.

¶ 8. Tubwell offers the following explanation for the court's alleged errors:

The [o]rder [d]ismissing [his] [a]ppeal[,] which was entered by the circuit [c]ourt[,] acknowledged that the [c]ity had filed, and had pending in the [c]ounty [c]ourt, a motion to dismiss based on the fact that the [o]rder from which Tubwell was appealing was not an appealable order as it was an order of procedendo. The [c]ircuit [c]ourt's [o]rder dismissing [the] appeal appears to be a ruling upon the [c]ity's pending motion of which the [c]ircuit [c]ourt had no jurisdiction to determine since that motion was pending in the [c]ounty [c]ourt and continues to be pending in that [c]ourt on this very day. The [c]ircuit [c]ourt's [o]rder left Tubwell with no recourse other than an appeal to the [Mississippi] Supreme Court.

Tubwell requests that this Court remand this case to the circuit court or the county court for a new trial. He concedes that he did not post a cost bond or an appearance bond as required by Rule 12.02 ; however, he argues that he has a right to proceed IFP in his appeal from the municipal court to the county court in his misdemeanor criminal case. He further argues that he was entitled to an evidentiary hearing upon his motion to proceed IFP-before the county court issued the order of procedendo. He notes that he was granted leave to proceed IFP in his appeal to this Court.

¶ 9. The State responds that Tubwell's current appeal to this Court exists solely as an appeal of the circuit court's order dismissing his appeal, issued sua sponte on April 4, 2017. The State argues that all other issues are irrelevant because Tubwell lacks standing to bring those issues before this Court. The State further argues that Tubwell seeks de novo review of the county court's ruling, which is improper due to procedural bars. The State concludes that Tubwell's claims should be barred and dismissed by this Court. We disagree.

¶ 10. As stated, Rule 12.02 was in effect when Tubwell initiated his appeal, although Rule 12.02 has since been deleted. It was deleted with the passage of our new Rules of Criminal Procedure, effective July 1, 2017. As noted, when Tubwell filed his appeal from the municipal court, he had already been adjudged a pauper, albeit in a different case, in the county court and allowed to proceed IFP in an appeal from the municipal court. On these facts, we see no reason to deny Tubwell appellate review because his indigency at the time of his appeal had already been established. The critical point is whether he was indigent at the time he initiated his appeal and, therefore, not required to post bond. Consequently, we find that the county court erred in dismissing Tubwell's appeal. In so finding, we are mindful that Tubwell did not obtain specific permission to proceed IFP in his appeal to the county court in the case before us. However, since he had already been allowed to proceed IFP in a separate appeal, the time of which overlapped the time for his appeal in the instant case-and there is nothing in the record to suggest that his financial status had changed during the overlapping time period-we see no reason why his failure to obtain permission to proceed IFP in this case should impede his right to obtain appellate review. To hold otherwise, on these facts, would be to exhort a ministerial administrative requirement over a fundamental constitutional right. We will not do so.

¶ 11. Turning to Tubwell's notice of appeal to the circuit court, it appears quite clear that he was attempting to appeal the county court's dismissal of his appeal of his convictions in municipal court, although he stated that he was appealing from a May 2, 2016 order of conviction which did not exist. As noted earlier, the municipal court convictions occurred on October 14, 2015. As mentioned in our recitation of the facts, the county court ruled that it was required to dismiss the appeal because Tubwell failed to perfect it by paying all costs and bonds or getting permission to proceed IFP.

¶ 12. The county court issued two orders on May 2, 2016: an order dismissing Tubwell's appeal and an order of procedendo, neither of which was referenced in Tubwell's May 4, 2016 notice of appeal. Although the circuit court interpreted Tubwell's notice of appeal as referencing the order of procedendo, we find that this was incorrect because it is clear that he was attempting to appeal the dismissal of his appeal by the county court, which prevented appellate review of the judgments of convictions in the municipal court. Technically, the notice of appeal to the circuit court should have stated that Tubwell was appealing the county court's erroneous dismissal of his appeal from the municipal court, but since Tubwell is proceeding pro se, we will not hold him to precise technical pleadings. Because we have found that the county court erroneously dismissed Tubwell's appeal, it follows that the circuit court, relying on the consequences flowing from the county court's erroneous decision, also erred in dismissing Tubwell's appeal on the basis that it was without jurisdiction to hear the appeal. Because the county court's error prohibited Tubwell from obtaining appellate review of his municipal court convictions, it is necessary that this case be remanded to the county court for further proceedings. Nothing in this opinion should be interpreted as requiring the county court to allow Tubwell to proceed IFP on remand if his IFP status has changed, but if that is the case, he should be allowed a reasonable time to post the required bonds.

¶ 13. REVERSED AND REMANDED.

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

      Tubwell presently has another unrelated appeal assigned to this Court under case number 2017-KM-00795-COA. We take judicial notice of the proceedings in that case and discuss, later in this opinion, relevant aspects of them as they relate to our holding in this case.

      The cause number of the appeal in the county court is S2015-0038CD.

      Cause number S2015-0013 involves an appeal from the judgment of conviction of two misdemeanor offenses (unsafe vehicle operation and failure to dim lights) handed down by the same municipal court involved in this appeal.

      We note that Rule 12.02 of the URCCC providing the appeal procedure from municipal or justice courts was deleted, effective July 1, 2017. However, Rule 12.02 was in effect at the time of Tubwell's conviction and appeal.

      We note that Rules 29.3 and 29.4 of the new Rules of Criminal Procedure, though not applicable to our case at hand, make clear that a criminal defendant, who is attempting to appeal a judgment of a municipal or justice court should file his motion to proceed IFP in the appellate court.

      We note that Tubwell is a pro se litigant. We are obligated to construe pro se pleadings with some reasonable degree of liberality. Ferrell v. State , 158 So.3d 1204, 1208 (¶ 5) (Miss. Ct. App. 2015).

      We also note that the circuit court, in its order granting Tubwell the right to appeal IFP to the Mississippi Supreme Court, incorrectly stated that Tubwell had been granted IFP status in his appeal to the county court and from the county court to the circuit court. The county court never ruled on Tubwell's motion for IFP status. However, as stated, Tubwell was granted IFP status in his appeal from the municipal court in cause number S2015-0013.


author: CARLTON, J., FOR THE COURT:

text:
    Patricia RUSH, Appellant v. R & D PROPERTIES LLC, Appellee
    NO. 2017-CA-01441-COA
    Court of Appeals of Mississippi.
    October 9, 2018
    ATTORNEY FOR APPELLANT: JAMES H. ARNOLD JR.
    ATTORNEY FOR APPELLEE: ROY GREGG ROGERS, LOUISVILLE
    BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. This appeal concerns the Winston County Chancery Court's denial of a petition to set aside a tax sale of property owned by Patricia Rush, located in Winston County, Mississippi. Patricia applied for a homestead exemption on the property in 2012. Her completed and filed application shows Patricia as the taxpayer, James H. Rush as her spouse, and Patricia's marital status as "married." Patricia signed the homestead exemption application and certified under penalty of perjury that the information it contained was correct. Patricia's 2013 homestead exemption was subsequently denied due to a charge-back for her ad valorem taxes due to James Rush's outstanding state income tax liability. Mississippi Code Annotated section 27-33-63(2) (Rev. 2010) establishes that no claimant for homestead exemption is eligible for the exemption if the claimant or claimant's spouse fails to comply with income tax laws of the State of Mississippi. When Patricia failed to pay the $551 in ad valorem taxes assessed for year 2013 due to the homestead exemption charge-back, Patricia's property was auctioned to R & D Properties LLC, at an August 2014 Winston County tax sale. The record reflects that Patricia was duly notified of her delinquent ad valorem taxes, the tax sale, and her right of redemption, but she failed to redeem her property within the time prescribed by law.

¶ 2. After expiration of the redemption period, however, Patricia filed a petition to set aside the tax sale in chancery court. At the September 2017 hearing on her petition, Patricia focused on how she completed her homestead application, instead of addressing the statutory requirements to obtain an exemption from her ad valorem taxes. She testified that when she filed for her homestead exemption, she told the clerk in the tax assessor's office that she was married, but that she and James Rush were "not together" because he had left her for her cousin. Patricia argued that because she was separated from James Rush, she was not responsible for his income tax liability. According to Patricia, the clerk mistakenly marked her marital status as "married" instead of "separated," and this error allegedly caused the tax assessor to wrongly deny her 2013 homestead exemption based on James Rush's income tax liability. Based on these circumstances, Patricia argued that the tax sale of her property was invalid and should be set aside.

¶ 3. Observing that Patricia had certified the validity of the information in her homestead exemption application under penalty of perjury, and that Patricia had been notified of the tax sale as required by law, the chancery court denied Patricia's petition and confirmed the tax sale as valid. Patricia appeals. Finding no error in the chancery court's denial of Patricia's petition and determination that the tax sale was valid, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 4. Patricia Rush owned property located at 3096 Highway 14 West in Louisville, Winston County, Mississippi. She acquired the property through a 1998 quitclaim deed from Leroy Triplett. At that time she was known as Patricia Triplett. She subsequently married James H. Rush. In March 2012, Patricia applied for a homestead exemption on the property. Her completed and filed homestead exemption application contains the following information:

Patricia A. Rush and her social security number are typed on line 1 -Taxpayer.
James H. Rush and his social security number are typed on line 2 - Name of Spouse.
Line 5 - Marital Status lists five options: Married, Widowed, Separated, Divorced, and Single. "Married" is checked on Patricia's application.
Patricia signed the application, certifying that the information it contained was correct, as follows:
I do attest and affirm to the best of my knowledge and belief, under penalty of perjury, that the statements made and the answers given are true and correct as of January 1 of the year stated above.
The application was also notarized by Maxine Robertson, who attested:
The applicant herein has, IN PERSON, attested to and signed this application before me, this the 19th day of March, 2012.

¶ 5. Patricia's property was subsequently sold at a tax sale in August 2014 because she did not pay $551 in 2013 ad valorem taxes on the property. Patricia filed a petition to set aside the tax sale on July 12, 2017. R & D responded, and Patricia's petition was heard on September 6, 2017. The circumstances surrounding Patricia's completion of her homestead exemption application, the 2013 ad valorem tax assessment, and the ensuing tax sale, are addressed in detail below.

¶ 6. The current Winston County Tax Collector/Assessor, Darlene Bane, testified about Patricia's homestead exemption application at the September 2017 hearing on Patricia's petition. Ms. Bane explained that married persons only need to file one application. In this case, Patricia's homestead exemption application was filed on behalf of both Patricia Rush and James Rush. Both parties' names and social security numbers are required to complete the application; however, only one signature is required to certify that all the information contained in the application is true and correct. Ms. Bane testified that Patricia's filed homestead exemption application listed Patricia Rush as the taxpayer and James Rush as her spouse, and that the homestead exemption application indicated that Patricia was "married" to James Rush when she signed and filed it.

¶ 7. The record reflects that Patricia's property was subsequently auctioned to R & D at an August 24, 2014, Winston County tax sale when Patricia did not pay $551 in 2013 ad valorem taxes on the property. The $551 was the amount Patricia had received in 2013 as a credit under her homestead exemption. She was subsequently denied her 2013 homestead exemption, however, due to a homestead charge-back relating to James Rush's outstanding income tax liability.

¶ 8. Specifically, Ms. Bane testified at the hearing that Patricia lost her homestead exemption when the state discovered that James Rush owed income taxes. At that point, Ms. Bane testified, "the state throws a charge-back because they're not going to give credit when there's money due by the same party." As Ms. Bane explained, "[Patricia Rush's 2013] homestead [exemption] was denied due to a homestead charge-back which related to [James Rush's] income tax. So that's what she was charged for- ... the amount that she had received as a [homestead] credit in the prior year."

¶ 9. Regarding notice of the delinquent property taxes and the tax sale, Ms. Bane testified that before Patricia's land was sold, notice of the delinquent property taxes was published twice in the local newspaper in the time and manner required by law. Additionally, Julie Cunningham, the Winston County Chancery Clerk, testified that Patricia was provided with proper notice of the tax sale and her right of redemption under the applicable statute. She confirmed that the notice was sent via certified mail to Patricia at the address on the quitclaim deed, which matched the address on her homestead application. Ms. Cunningham testified that she had the return receipt signed by Patricia. Patricia offered no evidence or testimony contradicting the testimony of Ms. Bane and Ms. Cunningham that notice of her delinquent property taxes and of the tax sale were provided as required by law.

¶ 10. Patricia also testified at the September 2017 hearing on her petition. In contrast to the information in her filed and certified 2012 homestead exemption application, Patricia testified at the 2017 hearing that she had been separated from James Rush since 2009; James Rush was not on the deed to the subject property; and she and James had never filed taxes together. Patricia also described what happened when she went to file her homestead exemption application in 2012, as follows:

So when [the clerk in the tax assessor's office] said, "Are you married," I said, "Yes, ma'am, I'm married, but we are not together." She said, "What's your husband's name," and I told her. She said, "It doesn't mean anything." That's the only way his name got on there .... [S]he said, "Well, are you married," and I said, "I'm going to be honest with you. Yes, I'm married, but we are not together. He left me-abandoned me for my first cousin."

¶ 11. As noted above, Patricia did not pay the taxes necessary to redeem her property, and after the tax sale matured on August 25, 2016, R & D recorded its tax deed on October 4, 2016. In July 2017, Patricia filed her petition to set aside the tax sale.

¶ 12. After considering the pleadings, and the testimony and exhibits before it at the September 2017 hearing on Patricia's petition, the chancery court denied Patricia's petition, and confirmed the tax sale as valid. In its October 4, 2017 order, the chancery court found that Patricia signed her 2012 homestead exemption application "under penalty of perjury, that the statements made and the answers given are true and correct," and that Patricia submitted that her marital status was "married" rather than "separated." The chancery court found that "[i]t is unknown what exact information that [Patricia] gave in the tax office, but she clearly certified that she reviewed the statement and certified its contents as true and correct." The chancery court further found that it was uncontradicted that the list of delinquent taxes was published in the local newspaper in the time and manner required by law and that Patricia had been properly notified of the tax sale in accordance with the statutory procedure.

¶ 13. Finding that the tax sale was valid, the chancery court held:

Though [Patricia Rush] now claims that she and James were separated since 2009 and they never paid taxes together, the responsibility was on Patricia to give accurate information to the county officials who cannot possibly keep track of the relationship statuses and federal tax filing habits of every landowner in Winston County.... Because the tax sale was conducted in the manner required by law as to Patricia , and was done according to the sworn information she provided, the court has no authority to set aside the valid tax sale as to Patricia.

¶ 14. Patricia appeals, asserting one assignment of error: the tax sale was void because she was entitled to her 2013 homestead exemption. Patricia asserts that the clerk in the tax collector/assessor's office erred in designating her as "married" rather than "separated" on her homestead exemption application, and, therefore, her homestead exemption should not have been denied due to James Rush's income tax liability. For this reason, Patricia argues, the chancery court erred in denying her petition to set aside the tax sale of her property.

STANDARD OF REVIEW

¶ 15. "This Court employs a limited standard of review when reviewing the decisions of a chancellor." Little v. Richey , 230 So.3d 336, 338 (¶ 9) (Miss. Ct. App. 2017) (quoting Powell v. Meyer , 203 So.3d 648, 652 (¶ 16) (Miss. Ct. App. 2016) ). "We will only reverse a chancellor's determinations if 'they were manifestly wrong, clearly erroneous, or the chancellor applied an incorrect legal standard.' " Id. ; see SKL Invs. , 22 So.3d at 1249 (¶ 4) (applying the same standard in a tax sale dispute).

DISCUSSION

¶ 16. Patricia claims that in completing her homestead exemption application in 2012, the clerk asked if she was married to James Rush, and she told the clerk, "Yes, I'm married, but we are not together. He left me-abandoned me for my first cousin." Relying on cases in which tax sales were invalidated based upon a clerical error, Patricia asserts that the tax sale in this case should likewise be set aside because the clerk erred in failing to mark "separated" in the marital status line of Patricia's homestead exemption application. Patricia's argument is misplaced in asserting that the charge-back occurred due to clerical error. She is not being held liable for her estranged husband's late income tax liability, as she asserts. She is accountable, however, for paying her ad valorem property taxes, and, as established by section 27-33-63(2), she loses the privilege of an exemption from paying her ad valorem taxes if she or her spouse fails to comply with state income tax laws.

¶ 17. The following provision in section 27-33-63(2) provides no exception for separated or estranged spouses: "No claimant for homestead exemption shall be eligible for exemption if the claimant or the claimant's spouse has failed to comply with the income tax laws of this state ...." (Emphasis added). In short, the charge-back of Patricia's ad valorem taxes for 2013 reflects what she owed in property taxes for her property for 2013. It does not reflect liability for her estranged spouse's state income taxes. The record reflects that Patricia was duly notified of her delinquent ad valorem taxes, her right to redeem, and the tax sale. Accordingly, we affirm the chancery court's order confirming the validity of the tax sale.

¶ 18. In support of her argument that the tax sale of her property should be set aside due to a clerical error, Patricia relies primarily on Carmadelle v. Custin , 208 So.2d 51 (Miss. 1968). In that case, Mr. Custin, the landowner, made an effort to pay all his taxes and have the land records examined to detect any flaws in his title. Id. at 55. Mr. Custin, however, was prevented from discovering a tax deed on his property due to an incorrect description in the tax collector's certified list of lands sold for taxes, which then caused the tax sale to be improperly indexed. Id. Though the indexing error was later corrected by the chancery clerk, the Custins were not notified; nor did the sheriff serve them with the statutory tax sale notice, though the Custins were living on the property at the time. Id. at 52, 55. The Mississippi Supreme Court held that this combination of clerical errors supported the chancellor's decision to allow the Custins to redeem their property. Id. at 55. In the other cases cited by Patricia, the tax sale was set aside, or the landowners were allowed to redeem their property after the statutory redemption period, based upon unilateral clerical errors in the statutory tax sale notice procedure. As acknowledged, lack of notice is not an issue in the instant case. As the chancery court determined, and as the record reflects, Patricia was notified of the tax sale of her property in the time and manner required by law. See Miss. Code Ann. § 27-43-1 (Rev. 2017) (setting forth the timing requirements and form of the statutory tax sale notice).

¶ 19. The cases Patricia relies upon are wholly distinguishable from the circumstances here, and do not support setting aside the tax sale of her property in this case. Section 27-33-63(2) does not allow the privilege of homestead exemption if either spouse fails to comply with state income laws-regardless of whether Patricia put on her homestead exemption application that she was married or separated.

¶ 20. In sum, the record reflects that the tax sale was conducted in the manner required by law as to Patricia and was done according to the sworn information Patricia provided. Particularly under our limited standard of review, the chancery court's decision to validate the tax sale was not "manifestly wrong," or "clearly erroneous." On the contrary, based upon our review of the record and the applicable law, we find that the chancery court was well within its authority to deny Patricia's petition and validate the tax sale of her property in reliance upon the information in Patricia's certified homestead exemption application; and the uncontradicted testimony that (1) notice of Patricia's delinquent property taxes was published as required by law, and (2) Patricia she was provided with the statutorily-mandated notice of the tax sale of her property, and her right of redemption by a date certain.

¶ 21. AFFIRMED.

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

      The quitclaim deed to the property was from Leroy Triplett to Patricia M. Triplett. The record reflects that Petitioner, Patricia Rush, is the same person as Patricia Triplett.

      The record does not indicate when this marriage took place.

      Regarding the "Separated" status option, the form included three additional questions the applicant must answer if the "Separated" option was chosen.

      Ms. Bane testified that she was not the tax collector/assessor in 2012 when Patricia filed her homestead exemption application, or in 2014 when the tax sale took place, but she had researched the sale and examined the paperwork. The tax collector/assessor at the time Patricia applied for her homestead exemption did not testify at the hearing.

      Patricia's appellate briefing mistakenly provides that the homestead exemption charge-back on the property was due to the income tax liability belonging to Leroy Triplett. The record and the chancery court's order denying Patricia's petition to set aside the tax sale, however, reflect that the homestead charge-back was due to James Rush's income tax liability, whose name and social security number appears on line 2 (Name of Spouse) on Patricia's 2012 homestead exemption application.

      Section 27-33-63(2) provides that "[n]o claimant for homestead exemption shall be eligible for exemption if the claimant or the claimant's spouse has failed to comply with the income tax laws of this state...."

      The order incorporated by reference the chancery court's September 19, 2017 letter ruling.

      At the hearing before the chancery court, the chancery clerk admitted that the lienholder on the property was not notified of the tax sale. Patricia argued before the chancery court that because the lienholder was not provided notice, the entire tax sale was invalid and R & D's tax deed was void. Citing SKL Investments Inc. v. American General Finance Inc ., 22 So.3d 1247 (Miss. Ct. App. 2009), the chancery court rejected this argument, holding that the clerk's failure to notify the lienholder rendered the tax sale void as to it, but the tax sale was valid as to Patricia, who was properly notified. See id. at 1250 (¶ 10) ("[Mississippi Code Annotated] section 27-43-11 [ (Rev. 2006) ] provides that the 'failure to give the required [tax sale] notice to ... lienors [on the subject property] shall render the tax title void as to such lienors, and as to them only .' We interpret that provision to mean that the tax sale is confirmed as to all others except those lienholders who failed to receive the statutorily-required notice."). On appeal, Patricia does not raise the issue of the clerk's failure to serve the lienholder.

      Patricia does not explain that the "Separated" status option on the homestead application form included three additional questions the applicant must answer if the "Separated" option was chosen. Thus Patricia not only failed to notice the wrong status box was checked, but she also failed to notice that none of the questions associated with the "Separated" status option had been addressed.

      See Reed v. Florimonte , 987 So.2d 967, 974-75 (¶ 21) (Miss. 2008) (affirming chancellor's decision to void a tax sale where the chancery clerk did not comply with the "due diligence" requirements of locating the landowner to supply the statutory tax sale notice); Kron v. Van Cleave , 339 So.2d 559, 562 (Miss. 1976) (affirming the chancellor's determination that the City of Pascagoula's failure to retrieve relevant data from Jackson County on the subject tract of land, so that the landowner did not receive notice of the tax sale, was a sufficient clerical error to allow the landowner an opportunity to redeem the property after the redemption period had expired); Moore v. Marathon Asset Mgmt., LLC , 973 So.2d 1017, 1021-22 (¶¶ 16, 22) (Miss. Ct. App. 2008) (reversing the chancellor's refusal to set aside a tax sale where the chancery clerk failed to comply with the statutory tax sale notice requirements); Lawrence v. Rankin , 870 So.2d 673, 676 (¶¶ 13-14) (Miss. Ct. App. 2004) (affirming the chancellor's decision to cancel the tax deed where chancery clerk did not furnish an affidavit demonstrating due diligence in attempting to serve the statutory tax-sale notice).

      "We apply the plain meaning of the statute when the statute is not ambiguous." Armstrong v. Estate of Thames , 958 So.2d 1258, 1259 (¶ 5) (Miss. Ct. App. 2007).


text:
    Anthony Ray ABRAM a/k/a Anthony Abram, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01396-COA
    Court of Appeals of Mississippi.
    October 16, 2018
    ATTORNEY FOR APPELLANT: ROBERT G. WHITACRE JR., HATTIESBURG
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT, JACKSON
    BEFORE GRIFFIS, P.J., BARNES AND GREENLEE, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Anthony Ray Abram appeals his convictions of being an accessory after the fact to first-degree murder and first-degree arson. We find Abram's assignments of error are procedurally barred and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On September 1, 2014, Ryan Cooper's burned body was found in the back of his smoldering Ford Ranger on East Reservoir Road in Marion County. Following an autopsy, a medical examiner determined that Cooper died from a gunshot wound to the head. A deputy-state fire marshal who examined Cooper's truck determined that the fire that had severely damaged Cooper's vehicle was not started accidentally and was due to human involvement.

¶ 3. Jerry Page was subsequently indicted on the charges of first-degree murder, first-degree arson, and simple assault on a law enforcement officer. Abram, Page's brother, was indicted on the charges of being an accessory after the fact to first-degree murder, and first-degree arson.

¶ 4. At trial, the State relied on the testimony of three witnesses: Alex Garner (Garner), Alex Abram (Alex), and David Holmes.

¶ 5. Garner was the only witness that directly observed the shooting. Garner testified that at the time of the shooting, he was living in his mother's van parked near James Kelly's house on Expose Road. On the night of August 31, 2014, Cooper picked up Garner, and they drove up the road to Alex's house. When they arrived, Cooper jumped out of his truck and "got into a confrontation" with Abram, Page, Alex, and Holmes. Cooper then drove away without Garner. Garner began to walk down the road back toward Kelly's house, but Cooper picked him up and returned to Alex's house. From his truck, Cooper screamed, "[Y]'all must [not] know me. I'm a LK," and "Y'all don't scare me[.]" Garner testified that people began shooting at Cooper's truck, but he could not see whom they were because he had his head down.

¶ 6. Garner further testified that he and Cooper drove to Kelly's house, parked in the driveway, and got out of the truck. Shortly thereafter, Abram, Page, Alex, and Holmes drove up in a truck, parked nearby, and jumped out holding guns. Garner testified that Abram ran up to Cooper and put a gun to Cooper's head but then lowered the gun. Then, Page approached Cooper and shot him in the middle of his forehead at point-blank range. Cooper fell to the ground. Garner saw Alex and Holmes start walking away. Abram picked up Cooper's body from the driveway and put it in the back of Cooper's truck. Garner testified that Page threatened to kill him and his mother if Garner told anyone about the shooting. Abram then drove off in Cooper's truck, with Page following in his own truck.

¶ 7. According to Garner, about forty-five minutes later, Page returned and again threatened Garner not to tell anyone about the shooting. Garner said that he feared for his life, so he helped Page cover up the shooting by giving Page gasoline to burn Cooper's blood off Kelly's driveway. Garner said he also shoveled dirt over Cooper's blood.

¶ 8. Garner testified that he was charged with being an accessory after the fact to murder and hindering the prosecution. He agreed to plead guilty to both charges and to testify at trial in exchange for a twenty-year sentence, with sixteen years suspended, and four years to serve.

¶ 9. Alex's and Holmes's testimonies slightly differed from Garner's testimony. Both Alex and Holmes testified that on the night of the shooting, they attended a barbeque that Alex hosted at his trailer on Expose Road. When guests began to leave the barbeque, Alex and Holmes walked down the street to Kelly's house.

¶ 10. Alex testified that as he and Holmes approached Kelly's house, he saw four men standing in the yard: Cooper, Garner, Abram, and Page. Page's full-size white truck and a smaller white truck were parked in the driveway. Cooper appeared to be arguing with Page, who held a handgun. Alex said he and Holmes began to run back to his trailer when they heard a gun cock. As they ran, a gunshot rang out. Alex then saw the two white trucks pass by, but he could not identify the drivers. The State was allowed to refresh Alex's memory by playing an audio recording of a pretrial statement he gave to law enforcement. The jurors listened to the recording and were each provided a transcript of the recorded statement; however, neither the recording nor the transcript were admitted into evidence, and the transcripts were collected from the jurors immediately after the audio recording was played. Alex subsequently testified that he remembered who was driving the white trucks-Page was driving his own full-size truck, and Abram was driving Cooper's smaller truck. Later that night, as Alex was cleaning up his yard, Page and Abram stopped by in Page's truck. Alex never again saw Cooper's truck.

¶ 11. Holmes's testimony was mostly consistent with Alex's. But Holmes testified that he did not see Abram talking with Cooper, Page, and Garner in Kelly's yard, and he could not see which of the men held a gun. Holmes explained that Cooper's small white truck was parked in front Page's full-size truck in Kelly's driveway. Holmes did not testify about seeing the trucks pass by after hearing a gunshot. Holmes said that after he returned to Alex's trailer, he met up with his girlfriend, and they went home.

¶ 12. Hilda Patton was the only witness to testify for Abram. She said that Abram was her friend and lived at her house in August 2014. Patton testified that on the day of the shooting, Abram was at her residence from 8:00 a.m. until she went to bed between 11 p.m. and 1 a.m. Patton said Abram went to bed before her and cooked breakfast the next morning. Patton testified that she disclosed this information to Abram's attorney about two weeks before trial. She acknowledged that she had not told anyone else about this information during the two years that Abram had been in jail pending trial.

¶ 13. Following a joint trial, Page and Abram were convicted as charged. Abram was sentenced to concurrent terms of twenty years in the custody of the Mississippi Department of Corrections for being an accessory after the fact to first-degree murder and three years for first-degree arson. Abram filed a motion for a judgment notwithstanding the verdict or, alternatively, a new trial, which the trial court denied. Abram now appeals and argues: (1) the trial court erroneously allowed the State to play Alex's entire recorded statement to the jury and provided each juror with a transcript of the statement, and (2) the trial court failed to properly instruct the jury.

ANALYSIS

I. Alex's Recorded Pretrial Statement

¶ 14. On September 10, 2014, Alex voluntarily gave a recorded statement to law enforcement regarding the night of the shooting. In his statement, Alex explained that as he ran back to his trailer, he saw the two white trucks that had been parked at Kelly's house pass by, one after the other. According to Alex, Abram passed by first in Cooper's truck, and Page followed in his full-size truck. But on direct examination at trial, Alex testified he "didn't get a chance to see who was driving." The State sought to refresh Alex's memory with his prior-recorded statement, and the trial court ruled that part of the audio recording could be played for the limited purpose of refreshing Alex's memory. The defense objected claiming that the State was "cherry picking" the case and "working real hard to elicit testimony favorable to themselves with great effort." The trial court responded that should Abram wish to play the entirety of the recording for the jury, he could do so in his case-in-chief.

¶ 15. The State then showed Alex a transcript page of his prior-recorded statement. Alex responded that he "didn't know [he] wrote a statement" and that he was not familiar with the transcribed version of his recorded statement. The trial court ruled that because Alex did not recognize the transcript, the entirety of Alex's recorded statement would be played. The trial court allowed the State to provide each juror with a transcript of the recording to compare with the audio recording as it played. Page's counsel objected to the transcripts, arguing that the audio recording was the best evidence. The trial court ruled that the transcripts would be taken from the jurors after the recording was played, and the jury would not be permitted to take the transcripts into the jury room.

¶ 16. After the audio recording was played for the jury, the transcripts were collected. The State then moved to admit the audio recording into evidence. Page's counsel objected to the recording as past evidence of Alex's testimony. The trial court held that the recording would be marked for identification purposes only, stating that neither the recording nor the transcript would be admitted into evidence or allowed in the jury room.

¶ 17. After the audio recording of Alex's pretrial statement was played, the State asked Alex whether he remembered making the statement. Alex responded that he did. Further, Alex testified that the statement he gave to law enforcement was the truth. Alex said he remembered that when the two trucks passed by, Abram was driving the small white truck, and Page was driving his larger truck.

¶ 18. On appeal, Abram argues the trial court erred in allowing the State to play Alex's entire recorded statement and in providing each juror with a transcript. We find this issue is procedurally barred.

¶ 19. The record shows Abram's counsel failed to contemporaneously object to the admission of the audio recording in evidence (i.e., playing of the audio recording in the presence of the jury). Abram's counsel argued, not that it was error to allow the jury to listen to the audio recording, but that the entire audio recording should be played for the jury, not just certain portions, as the State suggested. "[F]ailure to make a contemporaneous objection waives an issue for purposes of appeal." Boyd v. State , 175 So.3d 1, 4 (¶ 13) (Miss. 2015). Because Abram failed to object, this issue is procedurally barred from consideration on appeal.

¶ 20. Although this issue is procedurally barred, we find further discussion regarding Mississippi Rule of Evidence 612 is necessary. A trial will take place long after the event giving rise to the cause of action that occurred. 4 Jeffrey Jackson, Mary Miller, & Donald Campbell, Encyclopedia of Mississippi Law, Evidence § 33:59 (2d ed. 2016). As a result, a witness may need assistance in refreshing his recollection. Id. Pursuant to Rule 612, counsel may refresh a witness's memory by providing the witness information to use. Id. Rule 612(a)(1) allows a witness to "use[ ] a writing, recording, or object to refresh [his] memory ... while testifying." M.R.E. 612(a)(1). "The only requirement before an item is used to refresh a witness's memory is that the witness have no present memory of the event." Encyclopedia of Mississippi Law, Evidence at § 33:59 (citing Ervin v. State , 136 So.3d 1053, 1059 (Miss. 2014) ). In Ervin , the supreme court specifically ruled:

Mississippi Rule of Evidence 612 allows a witness to use documents to refresh his memory while testifying. [M.R.E.] 612. A document used to refresh a witness's recollection need not be admissible under the Mississippi Rules of Evidence. Hunt v. State , 687 So.2d 1154, 1162 (Miss.1996). "The only requirement is that the witness have no present memory of the event." Id. When defense counsel asked Stevenson "Do you have a recollection of that?" he responded "No." Thus, the State's argument that the defense could not use these documents to refresh Stevenson's memory on cross-examination because they were not admissible is without merit.

Ervin , 136 So.3d at 1059 (¶ 17).

¶ 21. On direct examination, Alex was asked if he saw who was driving the trucks and answered that he "didn't get a chance to see who was driving." Alex did not testify that he could not remember who was driving. His testimony may not be construed to conclude that he had "no present memory of the event." Alex simply stated that he "didn't get a chance to see who was driving." Nevertheless, the State asked Alex to review the transcript of his prior statement; Alex did and said he could not recognize it. The State then asked that Alex be allowed to hear the audio recording of the prior statement. The trial court allowed the jury to hear the entire audio recording and to see the transcript of Alex's prior statement. The trial court did not "admit" either into evidence.

¶ 22. Under Rule 612, when a document or recording is offered to a witness to refresh the witness's recollection, the party that offers the document or recording to refresh the witness's recollection (i.e., the producing party) is not allowed to produce the document to the jury or to play the audio recording to the jury. In other words, under Rule 612, the producing party may not publish the document or recording to the jury by reading the document, providing the jury with a transcript, or letting the jury listen to the recording. Instead, under Rule 612(b), "[a]n adverse party is entitled to have the writing [or] recording ... produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness's testimony." Thus, Rule 612 gives only "an adverse party" or the nonproducing party the right to ask that the writing or recording be published to the jury.

¶ 23. As further guidance, Williams on Mississippi Evidence sets forth the appropriate steps for refreshing a witness's memory under Rule 612 :

(1) Examining counsel must demonstrate to the satisfaction of the court that the witness cannot remember a certain fact. Then, with the court's permission, counsel may approach the witness and show him some item that will trigger his recollection of the forgotten facts. That item may be a writing such as notes, letters, a diary, a book or a hospital record, or it may be an object such as a photograph, a piece of jewelry or a weapon, or it may be a recording of a voice, a speech or an unusual sound that will be played to the witness . The nature of the item is immaterial; the critical issue is whether it triggers the witness's recollection of the facts so that he now may relate them to the jury.
(2) When the witness, after reading, handling, smelling or hearing the item, affirms that he now remembers the facts, he must return the item to counsel and testify solely from his refreshed memory. This refreshed memory, not the document, object or recording, is now the source of his testimony.
(3) At this time, opposing counsel has an absolute right to inspect the item, to use it in cross-examining the witness and to introduce all or relevant portions of it into evidence. It is important to remember that only the opponent can offer the item into evidence .

Parham Williams, Williams on Mississippi Evidence, Witnesses § 6.22[1] (2016) (emphasis added).

¶ 24. At this point in the trial, the State did not have the right to assert Rule 612 as authority to give Alex either a copy of the transcript of his prior statement or have him listen to the audio recording of that statement. There was nothing about Alex's testimony that could or needed to be "refreshed" under Rule 612. There was certainly no basis under Rule 612 to allow the producing party to publish the transcript and recording to the jury.

¶ 25. It is clear that the State wanted to use the transcript or recording of the prior statement to impeach Alex's testimony that he "didn't get a chance to see who was driving [the trucks]." In his prior statement, Alex said that he saw Abram pass by first in Cooper's truck, and Page followed in his full-size truck. The State wanted to show the jury that Alex's courtroom testimony was in conflict and inconsistent with a statement Alex had previously made outside the courtroom. The State wanted to use Alex's prior statement to impeach his trial testimony. There is a way to do that under the Mississippi Rules of Evidence, but it is not Rule 612.

¶ 26. The Mississippi Rules of Evidence restrict how parties may use prior inconsistent statements. Mississippi Rule of Evidence 613 imposes a procedural requirement on this process. Rule 613, titled "Witness's Prior Statement," provides:

(a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness's prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party's attorney.
(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party's statement under Rule 801(d)(2).

¶ 27. To impeach a witness, under Rule 613, the lawyer may choose to use a prior statement to show the jury an inconsistency in the witness's testimony. The producing party may not simply introduce the statement into evidence (i.e., publish it to the jury). If the State (as the producing party) wants to introduce the transcript or the audio recording in evidence, it is considered to be extrinsic evidence, and the State must comply with Rule 613(b). Here, neither the transcript nor the audio recording were offered under Rule 613(b).

¶ 28. As previously noted, Abram did not object to the submission of the entire audio recording to the jury. Instead, in response to the State's request to play only a portion of the audio recording, Abram objected and asked that the entire recording be played. Because Abram failed to object, he is procedurally barred from now claiming that the trial court erred in allowing the State to play Alex's entire recorded statement.

¶ 29. Notwithstanding the procedural bar, we find no plain error in the submission of the audio recording. "For the plain-error doctrine to apply, there must have been an error that resulted in a manifest miscarriage of justice or seriously affects the fairness, integrity, or public reputation of judicial proceedings." Johnson v. State , 155 So.3d 733, 738-39 (¶ 8) (Miss. 2014). Although the correct procedure was not followed to refresh a witness's recollection under Rule 612, we cannot say that such error resulted in a manifest miscarriage of justice or seriously affected the fairness, integrity, or public reputation of the judicial proceeding because Abram's counsel requested that Alex's entire statement be played to the jury. Accordingly, we affirm.

II. Jury Instruction

¶ 30. During trial, Abram proffered Jury Instruction 6 which read:

You have heard evidence that witnesses for the Prosecution made statements prior to trial that may be inconsistent with [ ] their testimony at this trial. If you believe that an inconsistent statement was made, you may consider the inconsistency in evaluating the believability of the witness' testimony. You may not, however, consider the prior statement as evidence of the truth of the matters contained in that prior statement.

The trial judge announced that the instruction would be given. But the instruction itself was stamped "refused." On appeal, Abram contends the trial judge erred by mistakenly stamping the instruction as refused and not giving the instruction to the jury.

¶ 31. After reviewing the record, we are unable to determine whether or not Jury Instruction 6 was read to the jury. Yet, even assuming the instruction was not given, we find no error. Abram did not alert the trial court that it failed to read his instruction. "We cannot hold a trial court in error on a matter not presented to it for a decision." Ronk v. State , 172 So.3d 1112, 1139 (¶ 68) (Miss. 2015). This issue is without merit.

CONCLUSION

¶ 32. For the above reasons, we affirm the circuit court's judgment.

¶ 33. AFFIRMED.

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

      Holmes and Page are Alex's cousins.

      In Page v. State , 2016-KA-01464-COA, 269 So.3d 440, 449-51, 2018 WL 3030923, at *5-*6 (¶¶ 23-28) (Miss. Ct. App. June 19, 2018), we addressed this issue appealed by Abram's co-defendant, Page. We held that Page waived any objection to the playing of the recorded interview and that it was not an abuse of discretion to allow the jurors to have transcripts. This reasoning applies here.

      Normally, a writing or recording must be admitted into evidence under the Mississippi Rules of Evidence before the jury is allowed to see the writing or hear the recording.


author: FAIR, J., FOR THE COURT:

text:
    Ladale Airosteve HOLLOWAY a/k/a Ladale A. Holloway a/k/a Dale Holloway, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-01455-COA
    Court of Appeals of Mississippi.
    October 16, 2018 Rehearing Denied December 11, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON, JACKSON
    BEFORE LEE, C.J., FAIR AND WILSON, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. A police officer found Ladale Airosteve Holloway passed out at the wheel of a vehicle sitting in an intersection on Highway 90 in Biloxi. Holloway had illegal drugs and drug paraphernalia in his lap and in the vehicle, and he fled when awoken by police officers. The total street value of the drugs was later determined to be more than twenty thousand dollars. Holloway was convicted of three counts of possession of a controlled substance with intent to distribute, as a "little" habitual offender and as a second or subsequent offense. On appeal, he challenges the admission of text messages received by a phone found in the vehicle, which were recent solicitations to purchase illegal drugs. Holloway claims the messages were hearsay and not properly authenticated. We find no error and affirm.

STANDARD OF REVIEW

¶ 2. The standard of review regarding the admission or exclusion of evidence is abuse of discretion. Young v. Guild , 7 So.3d 251, 261 (¶ 34) (Miss. 2009). Furthermore, a conviction will not be reversed "unless the trial court abused its discretion in a manner that was prejudicial to the accused or adversely affected a substantial right of the accused." Boyd v. State , 175 So.3d 1, 4 (¶ 12) (Miss. 2015).

DISCUSSION

1. Authentication

¶ 3. Holloway challenges the authenticity of the text messages found on a phone that was found in the vehicle with him, along with a large quantity of illegal drugs as well as distribution paraphernalia.

¶ 4. At trial, the lead investigator testified that he obtained a warrant to search the contents of a phone found in the vehicle with Holloway. When the investigator started to describe what he found on the phone, Holloway objected, contending that "the phone itself has not been authenticated as to who owns [it]" and that its contents were hearsay. The objection was sustained, but the court allowed the State to attempt to lay a foundation. The State then, over objection, elicited testimony that the phone was found in the vehicle with Holloway and contained a photograph of Holloway that appeared to have been taken while he was holding the phone, a "selfie." Holloway's objection here was to relevance, authentication, and the best evidence rule. The objection was overruled. Eventually, the lead investigator was asked to describe the content of the text messages found on the phone. Holloway again objected, but the only bases specified were that it was "hearsay," "pure speculation," and "pure anything else I can think of." Holloway also appeared to refer back to his prior authenticity objection by asserting it was "a phone anybody could have owned." The objection was overruled, and the investigator proceeded to describe numerous text messages found on the phone that appeared to be from people seeking to purchase illegal drugs.

¶ 5. Holloway bases his argument on Smith v. State , 136 So.3d 424, 432-35 (¶¶ 19-26) (Miss. 2014), where our supreme court discussed the issues surrounding the authentication of certain "electronic communications." But Smith concerned the admissibility of posts on a popular social-networking website-the account claimed to be associated with Smith could have been created by anyone, or anyone with the login and password to the account could have posted the message from anywhere in the world. See id. at 432-33 (¶ 19). Holloway's case concerns text messages, which ordinarily can be sent only by a single device in the physical possession of the sender. See Commonwealth v. Koch , 39 A.3d 996, 1004-05 (Pa. Super. Ct. 2011) (affirmed by an equally divided court, 630 Pa. 374, 106 A.3d 705 (Pa. 2014) ). The association of a cell phone number with a particular individual is far stronger than it is with an e-mail address, a social media account, or a traditional "land line" telephone, all of which are more often shared or more easily accessed by others. See Butler v. State , 459 S.W.3d 595, 601 (Tex. Crim. App. 2015). Thus many of the authentication issues with social media posts or e-mail are not present with text messages. See Smith , 136 So.3d at 432 (¶ 18) ("[T]he circumstantial evidence that tends to authenticate a communication is somewhat unique to each medium."). Although our supreme court has noted that the mere fact "that a text message emanates from a cell phone number assigned to the purported author ... without more[ ] has [not] typically been regarded as sufficient to support a finding of authenticity," it is surely easier to make a prima facie case to authenticate the authorship of a text message than for the Facebook posts at issue in Smith . Id. at 433 (¶ 20).

¶ 6. That being said, it is beside the point in this case. The probative value of the messages in Smith depended on Smith being their author, a point which was not shown by the prosecution in that case. See id. at 434-35 (¶ 25). But here the relevance of the messages found on Holloway's phone does not depend on the identity of the senders. The messages were relevant because they were solicitations that tended to show Holloway possessed drugs with the intent to distribute them. Holloway was found in the driver's seat of the vehicle, alone; large quantities of illegal drugs and a digital scale were also found in the vehicle; methamphetamine pills were found on Holloway's person (some in his lap and one in his pocket) and also in the center console with the phone; a "selfie" photograph of Holloway was found on the phone; the messages were all dated within the ten days prior to Holloway's arrest; and Holloway fled upon being discovered. In their totality, the circumstances more than made a prima facie showing that the messages were what the State claimed they were-solicitations to sell drugs that Holloway had received. Once there is a prima facie showing of authenticity, the evidence goes to the jury, which will then determine the ultimate question of whether the evidence is what it was claimed to be. Young v. Guild , 7 So.3d 251, 262 (¶ 36) (Miss. 2009). We can find no error in the admission of the text messages.

2. Hearsay

¶ 7. Next, Holloway contends that the text messages were inadmissible hearsay. Hearsay is a statement made that "(1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." M.R.E. 801(c). The text messages at issue were solicitations from unknown persons to purchase illegal drugs.

¶ 8. This case is analogous to United States v. Lewis , 902 F.2d 1176, 1179 (5th Cir. 1990), albeit with a slight technological update. When Lewis was arrested, a police officer seized his pager. Id. While in the possession of the police, the pager beeped, indicating that someone wanted its intended possessor to return a call. Id. An officer did so, posing as Lewis, and an unidentified person on the other end asked, "Did you get the stuff?" Id. Lewis contended the question was hearsay. Id. The Fifth Circuit disagreed, noting that hearsay is defined as a statement, which the rules of evidence further define as an assertion. Id. The question was not an assertion, even if it contained implicit factual assumptions. Id. The court explained that "[w]hile 'assertion' is not defined in the rule, the term has the connotation of a positive declaration." Id. (citing Webster's Ninth New Collegiate Dictionary 109 (9th ed. 1985) ). The assumptions underlying the questions, although they may be called "implicit" or "implied" assertions, are not hearsay because they are not positive declarations. See id.

¶ 9. The United States Court of Appeals for the District of Columbia Circuit reached a similar result in United States v. Long , 905 F.2d 1572 (D.C. Cir. 1990). While searching Long's apartment, a police officer answered the phone, and the unknown caller asked whether Long "still had any stuff," "a fifty," which was apparently an offer to purchase crack cocaine. Id. at 1579. Long challenged the statements as hearsay, but the District of Columbia Circuit disagreed, explaining that the questions were nonhearsay because they were not intended to be assertions and were inherently more reliable as a result:

The caller's words, thus, cannot be characterized as an "assertion," even an implied one, unless the caller intended to make such an assertion. While Long's criticism of a rigid dichotomy between express and implied assertions is not without merit, it misses the point that the crucial distinction under rule 801 is between intentional and unintentional messages, regardless of whether they are express or implied. It is difficult to imagine any question, or for that matter any act, that does not in some way convey an implicit message. One of the principal goals of the hearsay rule is to exclude declarations when their veracity cannot be tested through cross-examination. When a declarant does not intend to communicate anything, however, his sincerity is not in question and the need for cross-examination is sharply diminished. Thus, an unintentional message is presumptively more reliable. See United States v. Groce , 682 F.2d 1359, 1364 (11th Cir. 1982) ; 4 J. Weinstein & M. Berger, Weinstein's Evidence ¶ 801(a)[01] (1988). Evidence of unintended implicit assertions is "[a]dmittedly ... untested with respect to the perception, memory, and narration (or their equivalents) of the actor," but "these dangers are minimal in the absence of an intent to assert and do not justify the loss of the evidence on hearsay grounds." Fed. R. Evid. 801 advisory committee note.

Id. at 1579-80 (brackets in original; footnote omitted).

¶ 10. We find the reasoning in Long and Lewis persuasive. The text messages at issue in today's case were solicitations to purchase drugs; they were neither positive declarations nor intended to be assertions. Thus, they were not "statements" as contemplated by Rule 801, and there was no error in overruling Holloway's hearsay objection.

3. Harmless Error

¶ 11. Although we find no error in the admission of the text messages, we note that Holloway was caught red-handed with a large quantity of drugs-a total street value over twenty thousand dollars-as well as distribution paraphernalia, including a digital scale. Any error in the admission of the text messages was harmless beyond a reasonable doubt.

¶ 12. AFFIRMED.

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

      Miss. Code Ann. § 41-29-147 (Rev. 2013); Miss. Code Ann. § 99-19-81 (Rev. 2015).

      The only messages that were read to the jury were incoming solicitations; the responses sent from the phone, if any, were not described. Illustrative examples include as they appear in the trial transcript; the actual messages are not found in the record:
      Hey, I got 100 for the two and a half?
      Okay. So a quarter ounce for $250?
      Hey, what can you do for 400? Can you do a half zip?