Skylar O'Kelly v. State of Mississippi ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-KA-01147-COA
SKYLAR O’KELLY A/K/A SKYLAR NOEL APPELLANT
O’KELLY
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 08/05/2016
TRIAL JUDGE: HON. LEE J. HOWARD
COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: RODNEY A. RAY
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LAURA HOGAN TEDDER
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED IN PART; REVERSED AND
RENDERED IN PART; REMANDED -
08/30/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
WILSON, J., FOR THE COURT:
¶1. In August 2014, Skylar O’Kelly sold or gave his friend Parker Rodenbaugh two “hits”
of 25B-NBOMe, a controlled substance referred to at trial as “synthetic LSD.” A few hours
later, Rodenbaugh died from the toxic effects of the drug. O’Kelly was indicted for
trafficking in a controlled substance and depraved-heart murder. Following a jury trial in the
Oktibbeha County Circuit Court, O’Kelly was convicted on both counts and sentenced to
concurrent terms of ten years in the custody of the Mississippi Department of Corrections
(MDOC) for trafficking and twenty years in MDOC custody for depraved-heart murder.
¶2. On appeal, O’Kelly challenges the sufficiency and weight of the evidence on both
counts and argues that the circuit court erred by denying his pretrial motion to suppress
statements that he made to police. We affirm O’Kelly’s conviction for drug trafficking, and
we hold that the circuit did not err by denying O’Kelly’s motion to suppress. However, we
hold that the evidence introduced at trial was insufficient to support a conviction for either
depraved-heart murder or the lesser-included offense of culpable-negligence manslaughter.
Therefore, we reverse and render a judgment of acquittal on that count. We remand the case
for resentencing on the conviction for trafficking in a controlled substance.
FACTS AND PROCEDURAL HISTORY
¶3. In July 2014, O’Kelly, then twenty-one years old, paid a former high school classmate
$500 for approximately 450 dosage units or “hits” of 25B-NBOMe, a controlled substance1
referred to at trial as “synthetic LSD.” O’Kelly bought the drugs both for personal use and
to sell to others for $10 per hit. O’Kelly claimed that he did not know that the drug was
illegal, but he admitted that he had never heard of it being sold openly or in a store. O’Kelly
further testified that he did not know that the drug was dangerous. After he bought the drugs,
both O’Kelly and his younger brother Daylin, then nineteen years old, took hits on one or
1
25B-NBOMe and two similar compounds—25C-NBOMe and 25I-NBOMe—were
made Schedule I controlled substances under federal law by order of the Drug Enforcement
Administration (DEA) on November 15, 2013. See 78 Fed. Reg. 68,716 (Nov. 15, 2013).
The three compounds were added to Schedule I of the Mississippi Uniform Controlled
Substances Act effective April 17, 2014. See 2014 Miss. Laws ch. 501, §§ 1 & 3; Miss.
Code Ann. § 41-29-113(c)(49)-(51) (Supp. 2017).
2
more occasions.
¶4. O’Kelly moved to Starkville in August 2014. He testified that he planned to attend
Mississippi State University, but he was not enrolled. On August 9, 2014, O’Kelly and
Daylin were at O’Kelly’s apartment in Starkville. Around 9 p.m., they went to a house where
Parker Rodenbaugh, a twenty-two year old MSU student, lived with four other MSU
students. O’Kelly and Rodenbaugh graduated from high school together, and O’Kelly
testified that they were “best friends.” O’Kelly testified that he, Daylin, and Rodenbaugh
went downstairs, smoked marijuana and tobacco from a hookah pipe, and played video
games. One of Rodenbaugh’s roommates, Pierson Crowder, was hosting a fantasy football
draft party upstairs with several guests. Two of Rodenbaugh’s other roommates, Sam and
David Kealhofer, were also present at different times during the night.
¶5. O’Kelly testified that around 10 p.m. Rodenbaugh asked him if he “wanted to trip,”
referring to the NBOMe. O’Kelly testified that he and Rodenbaugh had taken NBOMe
together previously. O’Kelly went back to his apartment, retrieved five hits of NBOMe, and
then returned to Rodenbaugh’s house. O’Kelly took two hits himself, gave one hit to Daylin,
and gave two hits to Rodenbaugh. O’Kelly told police that Rodenbaugh agreed to pay $20
for the two hits later. Rodenbaugh told both Crowder and Sam Kealhofer that he had taken
“acid” or “LSD.” They were not shocked or surprised, as they knew that Rodenbaugh had
taken acid before. Nor were they concerned, as Rodenbaugh seemed fine at that time.
¶6. Forty-five minutes to an hour later, Rodenbaugh “began to repeat himself”—saying
3
“good vibes” over and over—and saying things that did not “make sense.” O’Kelly testified
that Parker’s behavior “wasn’t really anything serious,” and others “were laughing” and
thought “it was funny.” Later, however, Rodenbaugh went running through the house, hit
his head on a shelf, and fell to the floor. After others helped him to his feet, Rodenbaugh ran
down a hall and into a door, and fell down again. After that, Crowder, the Kealhofers,
O’Kelly, and Daylin sat with Rodenbaugh for periods of time while Rodenbaugh lay on the
floor. O’Kelly testified that Rodenbaugh was talking and sometimes coherent, but he also
continued to repeat himself and say things that did not make sense.
¶7. O’Kelly testified that, “[a]fter a while, [Rodenbaugh] seemed to have calmed down.”
O’Kelly then went to another part of the house to smoke a cigarette “to calm [himself] down
because [he] was a little bit under the influence at the time.” Crowder and the Kealhofers
stayed with Rodenbaugh. Later, O’Kelly came back to check on Rodenbaugh, and he could
see that Rodenbaugh’s roommates were trying to talk to him, but Rodenbaugh’s feet were
“kind of spasming.” O’Kelly claimed that he said, “[H]ey, if there’s anything I can do,
please let me know.” He claimed that Crowder answered, “[I]t’s okay; we got it.” O’Kelly
and Daylin then went back downstairs and smoked the hookah pipe again.
¶8. Crowder and Sam Kealhofer testified at trial, and their testimonies were generally
consistent with O’Kelly’s testimony. They testified that they were not concerned when
Rodenbaugh told them that he had taken acid, as they knew that he had taken acid before.
Nor were they concerned when Rodenbaugh began “tripping,” as he seemed to be fine. Even
4
after Rodenbaugh was lying on floor, repeating himself, and periodically tensing up or
spasming, they did not believe that he needed medical attention—in part because they knew
that O’Kelly and Daylin had taken the same drugs and were not experiencing any negative
effects. Crowder and Sam Kealhofer testified that they called 911 only after Rodenbaugh
began to turn blue and seemed to stop breathing. They both testified that O’Kelly and Daylin
were not with Rodenbaugh by that point.
¶9. O’Kelly testified that he and Daylin were downstairs when one of the guests from the
draft party told them that they had to leave immediately because an ambulance was on its
way. O’Kelly and Daylin left and went back to O’Kelly’s apartment. O’Kelly claimed that
he tried to call several people to check on Rodenbaugh’s condition, but he could not get in
touch with anyone.
¶10. When paramedics arrived at Rodenbaugh’s house, they attempted to resuscitate him.
However, their efforts were unsuccessful, and Rodenbaugh was pronounced dead. Dr. Lisa
Funte, a forensic pathologist from the State Medical Examiner’s Office, later identified the
cause of death as the toxic effects of NBOMe.
¶11. Around 5:30 a.m. on August 10, Lieutenant Shawn Word of the Starkville Police
Department went to O’Kelly’s apartment. Word called O’Kelly’s cell phone and asked him
to step outside to talk, and O’Kelly agreed. At the outset of their conversation, Word advised
O’Kelly of his Miranda rights. O’Kelly acknowledged that he had been at Rodenbaugh’s
house the night before. Word then told O’Kelly that Rodenbaugh had died. Word testified
5
that O’Kelly “got emotional, went down in a crouching position,” and stated, “I’m done with
drugs.” Word asked O’Kelly who else had taken the drugs, and O’Kelly stated that only he
and Daylin had, and they were fine. O’Kelly told Word that there were no drugs in his
apartment. O’Kelly told Word that he had only purchased five hits to begin with, and he,
Daylin, and Rodenbaugh had taken all of them.
¶12. Word took O’Kelly to the police station for further questioning. At the station, Word
again advised O’Kelly of his Miranda rights, and the interview was videotaped. O’Kelly
reiterated that he had purchased only five hits of NBOMe and had paid $50 for them.
O’Kelly stated that when Rodenbaugh was “on the floor” and “kept shaking,” “he didn’t
know what to do” and “was getting freaked out.” O’Kelly stated that “he couldn’t take . . .
watching his friend like” that, so he and Daylin went downstairs to smoke the hookah pipe.
O’Kelly said that he went back to “check on [Rodenbaugh] periodically.” Word asked
O’Kelly why he did not call 911; O’Kelly “said he didn’t know” and “was just hoping
[Rodenbaugh would] work through it.”
¶13. At the conclusion of the interview, Word told O’Kelly that he had a search warrant
for O’Kelly’s apartment, and Word asked again whether there were any drugs in the
apartment. O’Kelly then admitted that he had paid $500 for 450 hits and that “less than 450
hits” were hidden in a bag in his closet.
¶14. Detective Bill Lott then conducted a videotaped interview of O’Kelly. Lott again
advised O’Kelly of his rights and obtained a signed Miranda waiver at 6:40 a.m. At 7:06
6
a.m., O’Kelly signed a written statement consistent with his prior statements to Word. In his
written statement, Word admitted that he had sold Rodenbaugh two hits of NBOMe for $10
per hit ($20 total) and “told him [he] could pay later.”
¶15. Word subsequently found two sheets of NBOMe in 1/4" x 1/4" perforated squares
(hits) in a bag in O’Kelly’s closet, as O’Kelly had described. The sheets contained
approximately 425 squares. In January 2015, O’Kelly was indicted for trafficking in a
controlled substance, Miss. Code Ann. § 41-29-139(f) (Supp. 2014), and one count of
second-degree or “depraved-heart” murder, Miss. Code Ann. § 97-3-19(1)(b) (Rev. 2014).
The case eventually proceeded to trial in August 2016.
¶16. At trial, Dr. Funte testified that “NBOMe is incredibly potent” and “has been linked
to death at very, very low levels of the drug.” The drug “binds to a receptor in [the user’s]
brain” and can “stimulate[] a condition called serotonin syndrome.” Dr. Funte testified that
the effects of the drug are highly “unpredictable.” She explained that although a person
“might take the drugs several times and be fine,” a single dose can lead to cardiac
arrhythmias, muscle tissue breakdown, acute kidney failure, multi-organ system failure, and
death. Dr. Funte testified that, even at a “[v]ery low level,” the drug can cause “death quite
rapidly.” She testified that a person cannot “develop a tolerance” to NBOMe, “[s]o on any
given day, you don’t know whether that drug is going to cause an adverse reaction leading
to your death.”
¶17. On cross-examination, Dr. Funte testified that in August 2014 NBOMe “was in its
7
infancy as something that was showing up certainly around here,” although in “other areas
including other countries it was known and used.” She testified that “[t]here was a statement
put out by the DEA making it a controlled substance in November 2013.” It “certainly [was]
not as common as marijuana or cocaine . . . . But it was not unheard of.” This was the first
autopsy that Dr. Funte had performed involving a death linked to NBOMe.
¶18. At the close of the evidence, the circuit court instructed the jury on the elements of
drug trafficking, depraved-heart murder, and the lesser-included offense of culpable-
negligence manslaughter. The jury found O’Kelly guilty of drug trafficking and depraved-
heart murder. The court sentenced O’Kelly to serve ten years in MDOC custody for drug
trafficking and twenty years in MDOC custody for depraved-heart murder, with the sentences
to run concurrently. O’Kelly filed a timely motion for judgment notwithstanding the verdict
or a new trial, which was denied, and a timely notice of appeal.
ANALYSIS
¶19. On appeal, O’Kelly raises three issues: (1) “whether the State proved all the elements
of . . . drug trafficking beyond a reasonable doubt, and/or whether the verdict . . . was against
the overwhelming weight of the evidence”; (2) “whether the State proved all the elements
of . . . depraved-heart murder beyond a reasonable doubt, and/or whether the verdict . . . was
against the overwhelming weight of the evidence”; and (3) whether the circuit court erred by
denying his pretrial motion to suppress statements that he made to police. In the last section
of his brief, O’Kelly briefly discusses four other alleged trial errors. We address O’Kelly’s
8
arguments in turn below.
I. Drug Trafficking
¶20. “The . . . test for sufficiency of the evidence is familiar.” Lenoir v. State, 222 So. 3d
273, 278 (¶25) (Miss. 2017) (quoting Poole v. State, 46 So. 3d 290, 293 (¶20) (Miss. 2010)).
“When this Court reviews the sufficiency of evidence supporting a guilty verdict, we view
the evidence in the light most favorable to the State and decide if rational jurors could have
found the State proved each element of the crime.” Id. at 279 (¶25). “We are not required
to decide—and in fact we must refrain from deciding—whether we think the State proved the
elements.” Id. (quoting Poole, 46 So. 3d at 293-94 (¶20)). “Rather, we must decide whether
a reasonable juror could rationally say that the State did.” Id. (quoting Poole, 46 So. 3d at
294 (¶20)).
¶21. When we review the denial of a motion for a new trial, we similarly consider “the
evidence in the light most favorable to the verdict,” and we will not reverse unless the
“verdict . . . is so contrary to the overwhelming weight of the evidence that to allow it to
stand would sanction an unconscionable injustice.” Little v. State, 233 So. 3d 288, 292 (¶21)
(Miss. 2017). As an appellate court, “[w]e do not make independent resolutions of
conflicting evidence. Nor do we reweigh the evidence or make witness-credibility
determinations.” Id. at (¶20) (citation omitted). “Instead, when the evidence is conflicting,
the jury will be the sole judge of the credibility of witnesses and the weight and worth of
their testimony.” Id. (quotation marks omitted). We review the trial judge’s denial of a
9
motion for a new trial for abuse of discretion. Id. at (¶21).
¶22. On the charge of “trafficking in a controlled substance,” the State was required to
prove beyond a reasonable doubt that O’Kelly possessed forty or more dosage units of
NBOMe with the intent to sell, barter, transfer, or dispense the drugs to another person. See
Miss. Code Ann. § 41-29-139(f)(2)(A). O’Kelly argues that the State failed to prove (1) that
he intended to distribute the drugs or (2) that he possessed forty or more dosage units. Both
arguments are without merit.
¶23. The first argument is based on O’Kelly’s testimony that he and Rodenbaugh intended
to split the cost of the NBOMe and keep it for their own personal use. According to O’Kelly,
Rodenbaugh “said he’d go in half.” However, in his initial statement to the police, O’Kelly
indicated that he alone purchased the drugs and was willing to sell hits for $10 apiece.
O’Kelly’s statement did not mention any sort of sharing arrangement, and he clearly stated
that he gave Rodenbaugh two hits in exchange for a later payment of $20.
¶24. Moreover, “it is not necessary for the transferor to make a profit or that there be
consideration for the transaction to constitute a transfer or distribution under the statute.”
White v. State, 842 So. 2d 565, 576 (¶33) (Miss. 2003) (emphasis added). “A ‘transfer’ under
the statute for the delivery and transfer of narcotics is a change of possession from one
person to another.” Johnson v. State, 194 So. 3d 191, 197 (¶10) (Miss. Ct. App. 2016) (citing
White, 842 So. 2d at 576 (¶32)). “To establish the defendant’s intent to transfer within the
meaning of the statute, all that is required is proof of the defendant’s intent to relinquish
10
possession and control.” Id. “The purpose of the statute is to thwart the exchange or transfer
of the substance regardless of whether there was consideration for it.” Id. Thus, even a
simple plan to “share” one’s drugs with others is sufficient to demonstrate an intent to
distribute. Id. at (¶11). Therefore, O’Kelly’s testimony at trial—that he intended to transfer
half of his purchase to Rodenbaugh—was also sufficient to establish an intent to distribute.
O’Kelly also admitted that he transferred drugs to Daylin on at least two occasions.
¶25. Finally, “a jury may reasonably conclude that a defendant intended to unlawfully
distribute a controlled substance, if the quantity or nature of the seized substance evidences
an intent to distribute—as opposed to an intent to merely possess for personal use.” Taylor
v. State, 656 So. 2d 104, 108 (Miss. 1995). O’Kelly possessed enough NBOMe to “trip” up
to 425 times, depending on the number of hits taken. Based on O’Kelly’s statements to
police and testimony at trial, the jury reasonably could infer that such a quantity was not
intended solely for his own personal use. Accordingly, there was sufficient evidence for the
jury to find that O’Kelly possessed the NBOMe with the intent to distribute.
¶26. O’Kelly next argues that the State failed to prove that he possessed a sufficient
quantity of NBOMe because the State tested only eight of the approximately 425 perforated
squares found in his apartment. Claudette Gilman, a forensic chemist, testified that she
selected eight random squares to test, and all eight contained 25B-NBOMe. O’Kelly argues
that this evidence was insufficient because the trafficking statute requires proof of forty
dosage units. Miss. Code Ann. § 41-29-139(f)(2)(A).
11
¶27. This Court addressed a similar argument in Fay v. State, 133 So. 3d 841, 844-45 (¶¶7-
11) (Miss. Ct. App. 2013), cert. denied, 133 So. 3d 818 (Miss. 2014). Fay argued that the
evidence was insufficient to convict him of possession of between 0.1 gram and two grams
of methadone because the forensic chemist only tested one of several pill fragments from a
bag found in Fay’s pocket. See id. at 844 (¶8). However, this Court held that “a forensic
chemist is generally not required to test all of the suspected narcotic substance to opine that
the recovered substance as a whole contains narcotics.” Id. at 844-45 (¶9) (quoting People
v. Adair, 940 N.E.2d 292, 295 (Ill. App. Ct. 2010)) (brackets omitted). Rather, “random
testing is permissible when the seized samples are sufficiently homogeneous so that one may
infer beyond a reasonable doubt that the untested samples contain the same substance as
those that are conclusively tested.” Id. at 845 (¶9) (quoting Adair, 940 N.E.2d at 295)
(brackets omitted). In Fay, we held that “it was not necessary for [the chemist] to test every
pill fragment” because the pill fragments were all the same color and bore the same marking.
Id. at (¶11). We concluded that “[b]ased on the relatively homogenous nature of the pill
fragments,” there was sufficient evidence for the jury to conclude that Fay possessed between
0.1 grams and two grams of methadone. Id.
¶28. The result is the same here. The perforated squares at issue were contained on only
two sheets. Gilman testified that she randomly selected eight squares for testing, all of which
tested positive for NBOMe. There is nothing in the record to suggest that the approximately
417 squares not tested were different in kind from the eight that were tested. Furthermore,
12
based on Dr. Funte’s autopsy, the two hits that O’Kelly transferred to Rodenbaugh clearly
contained NBOMe. It is also reasonable to infer that the hits that O’Kelly and Daylin took
contained NBOMe. Finally, we note that O’Kelly himself told police officers and testified
at trial that he purchased 450 hits of NBOMe. Based on Gilman’s testimony and O’Kelly’s
admissions, we hold that the evidence was sufficient for a rational juror to find beyond a
reasonable doubt that O’Kelly possessed at least forty dosage units of NBOMe with the intent
to distribute. We also conclude that the trial judge did not abuse his discretion by denying
O’Kelly’s motion for a new trial on the drug trafficking charge.2
II. Depraved-Heart Murder
¶29. O’Kelly next challenges the sufficiency of the evidence to support the conviction for
depraved-heart murder. Depraved-heart murder, now classified as second-degree murder,
is defined as “[t]he killing of a human being without the authority of law . . . in the
commission of an act eminently dangerous to others and evincing a depraved heart,
regardless of human life, although without any premeditated design to effect the death of any
2
Although the issue is not identified in O’Kelly’s statement of issues, O’Kelly also
asserts that the jury instruction on the elements of drug trafficking was inconsistent with his
indictment. The indictment charged O’Kelly with “traffick[ing] in a controlled substance by
unlawfully, willfully, and feloniously[] possessing 25-NBOMe, in an amount greater than 40
dosage units, in violation of [section] 41-29-139.” The indictment clearly charged drug
trafficking and specifically referenced subsection 41-29-139(f). The statute makes clear that,
as relevant in this case, trafficking in a controlled substance means possession of more than
forty dosage units with the intent to distribute. See Miss. Code Ann. §§ 41-29-139(f)(2)(A),
41-29-139(a). Moreover, the jury instruction correctly set out the elements of the crime:
possession of forty or more dosage units with the intent to distribute. There is no merit to
O’Kelly’s claim that the instruction was defective.
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particular individual . . . .” Miss. Code Ann. § 97-3-19(1)(b). “The Supreme Court has
described conduct ‘evincing a depraved heart’ as ‘grave recklessness manifesting utter
disregard or indifference to a resultant creation of eminent danger to human life.’” McCarty
v. State, 247 So. 3d 260, 269 (¶27) (Miss. Ct. App. 2017) (brackets omitted) (quoting
Windham v. State, 602 So. 2d 798, 802 (Miss. 1992)), cert. denied, 246 So. 3d 885 (Miss.
2018).
¶30. The jury in this case also was instructed on the lesser-included offense of culpable-
negligence manslaughter. See Shumpert v. State, 935 So. 2d 962, 965-68 (¶¶7-17) (Miss.
2006) (recognizing that culpable-negligence manslaughter is a lesser-included offense of
depraved-heart murder). Under the “direct remand rule,” if we concluded that the evidence
was insufficient to prove murder but sufficient to prove manslaughter, we would remand the
case and direct the circuit court to sentence the defendant on the lesser-included offense of
manslaughter. See Shields v. State, 722 So. 2d 584, 585-86 (¶¶7-11) (Miss. 1998); Hull v.
State, 174 So. 3d 887, 897 (¶28) & n.3 (Miss. Ct. App. 2015).
¶31. Culpable-negligence manslaughter is the “killing of a human being, by the act,
procurement, or culpable negligence of another, and without authority of law.” Miss. Code
Ann. § 97-3-47 (Rev. 2014). Our Supreme Court has defined “culpable negligence” as
“negligence of a degree so gross as to be tantamount to a wanton disregard, or utter
indifference to, the safety of human life.” McCarty, 247 So. 3d at 269 (¶29) (quoting
Hawkins v. State, 101 So. 3d 638, 643 (¶17) (Miss. 2012)). “Depraved-heart murder and
14
culpable negligence manslaughter are distinguishable simply by degree of mental state of
culpability. In short, depraved-heart murder involves a higher degree of recklessness from
which malice may be implied.” Hawkins, 101 So. 3d at 643 (¶17).
¶32. We conclude that the evidence at trial was insufficient to establish either depraved-
heart murder or culpable-negligence manslaughter. As discussed above, O’Kelly testified
that he and Rodenbaugh had taken NBOMe together previously. Rodenbaugh’s roommates
also testified that they knew that Rodenbaugh had taken “acid” on prior occasions. In
addition, O’Kelly testified that, prior to August 9, 2014, he and Daylin had both taken hits
from the same sheets at issue in this case. There is no evidence that O’Kelly, Rodenbaugh,
or Daylin had experienced any adverse effects when using NBOMe previously, and O’Kelly
testified that he did not know that NBOMe was dangerous. Indeed, on the night in question,
O’Kelly himself took the same number of hits as Rodenbaugh.
¶33. Dr. Funte testified at trial that “NBOMe is incredibly potent” and “has been linked to
death at very, very low levels of the drug.” She also testified that the drug is highly
unpredictable so that a single dose can cause death in a short period of time. She further
testified that a person cannot “develop a tolerance” to NBOMe, so a person’s past experience
with the drug is not a good indicator of its potential to cause harm.
¶34. However, Dr. Funte also testified that in August 2014 NBOMe “was in its infancy as
something that was showing up certainly around here,” although in “other areas including
other countries it was known and used.” She testified that “[t]here was a statement put out
15
by the DEA making it a controlled substance in November 2013.” This was the first autopsy
that Dr. Funte had performed involving a death linked to NBOMe.
¶35. The case was submitted to the jury on the theory that O’Kelly committed depraved-
heart murder by “selling [Rodenbaugh] the controlled substance 25B-NBOMe.” Similarly,
the instruction on culpable-negligence manslaughter required a finding that O’Kelly acted
“with culpable negligence . . . by selling/bartering/transferring/distributing/dispensing to
[Rodenbaugh] the controlled substance 25B-NBOMe.” It is important to note that the jury
was not instructed that it could find O’Kelly guilty of murder or manslaughter for failing to
seek medical aid after Rodenbaugh began experiencing adverse effects from the drug.3 Thus,
the narrow issue before this Court is whether, based on the evidence at trial, O’Kelly’s
singular act of selling or giving Rodenbaugh two hits of NBOMe rises to the level of
depraved-heart murder or culpable-negligence manslaughter.
¶36. The Kentucky Supreme Court addressed similar facts and issues in Lofthouse v.
Commonwealth, 13 S.W.3d 236 (Ky. 2000). There, the defendant (Lofthouse) “admitted that
he furnished the cocaine and heroin to Buford while visiting in Buford’s home on the night
in question.” Id. at 237. “[Lofthouse] and Buford had ‘shot’ cocaine together on previous
occasions without life-threatening results.” Id. at 237-38. “[Lofthouse] had obtained the
cocaine and heroin from his regular drug supplier, who sold him the cocaine, but gave him
3
See, e.g., State v. Morgan, 936 P.2d 20, 23 (Wash. Ct. App. 1997) (affirming
conviction for manslaughter based on the defendant assisted or enabled the decedent’s drug
use and then failed to seek medical help when she overdosed); People v. Oliver, 210 Cal.
App. 3d 138, 149 (Cal. Ct. App. 1989) (similar).
16
the heroin as ‘something new’ [to] try.” Id. at 238. “[Lofthouse] had, himself, ingested some
of the heroin prior to the night of Buford’s death.” Id. On the night in question, Lofthouse
and Buford both drank beer and injected themselves with cocaine and heroin. Id. “Buford
told [Lofthouse] that he had seen heroin before and knew what it was.” Id. However, after
several hours of drinking and drug use, Buford lost consciousness and died from the toxic
effects of the drugs and alcohol. Id.
¶37. A jury found Lofthouse guilty of “reckless homicide,” which under Kentucky law
“required proof beyond a reasonable doubt that there was a substantial and unjustifiable risk
that Buford would die if he ingested the cocaine and heroin furnished to him by [Lofthouse],
and that the risk of Buford’s death was of such nature and degree that [Lofthouse’s] failure
to perceive it constituted a gross deviation from the standard of care that a reasonable person
would observe in the situation.” Id. at 241. However, the Kentucky Supreme Court reversed
and rendered the conviction. Id. at 242. The court rejected Lofthouse’s argument “that
furnishing controlled substances to one who subsequently dies from their ingestion can never
support a conviction of criminal homicide”; however, the court also rejected the state’s
argument that the provision of controlled substances to a person who thereafter dies “will
always support a conviction.” Id.4 Instead, the court held that such a case, “like any other,”
“depends on the proof.” Id. The court held that to obtain a conviction, the state must prove
4
The court reversed Lofthouse’s conviction by a 5–1 vote. The opinion discussed in
the text was a three-justice plurality opinion. Two justices would have gone further and held
that the act of providing drugs to another could never be considered reckless homicide. See
id. at 243-44 (Stumbo, J., concurring).
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beyond a reasonable doubt “that a layperson, such as [Lofthouse], should reasonably have
known that there was a substantial risk that the amount of cocaine and heroin ingested by
Buford would result in his death.” Id. The court further stated: “That is especially true
where, as here, [Lofthouse] did not directly cause the victim’s death, but only furnished the
means by which the victim caused his own death.” Id.
¶38. The court went on to hold that the evidence was insufficient to convict Lofthouse
despite evidence that the quantities of heroin found in Buford “could be fatal.” Id. The court
explained its conclusion as follows:
[T]here was no proof that [Lofthouse] or any other layperson should have been
aware that there was a substantial risk that Buford would die from ingesting
those substances, or that [Lofthouse’s] failure to perceive that risk constituted
a gross deviation from the standard of care that a reasonable person would
observe in the situation. Such information is not “common knowledge.” On
the other hand, there was evidence that heroin was “something new” to
[Lofthouse]; that he, himself, had previously ingested dosages of both the
cocaine and the heroin in question without a fatal result; and that he, himself,
ingested the same dosages of cocaine and heroin as Buford on the same
occasion, yet remained coherent enough to assist in efforts to save Buford’s
life. The Commonwealth proved only that the dosages were fatal to Buford.
That alone was insufficient to convict [Lofthouse] of reckless homicide.
Id. at 241-42.5
5
The court distinguished cases from other states in which “there was evidence that
another of [a] defendant’s customers had died the same way two weeks earlier,” the
“defendant knew that the heroin sold to the victim was ‘uncut’ and dangerous because it had
not been diluted,” or “the defendant injected the victim with heroin after she was already
‘bombed out’ on depressants and,” by his own admission, “was aware of the substantial
possibility that the injection would cause the victim’s death.” Id. at 241 (distinguishing State
v. Randolph, 676 S.W.2d 943 (Tenn. 1984), and People v. Cruciani, 327 N.E.2d 803 (N.Y.
1975)).
18
¶39. The facts of this case are similar to Lofthouse. O’Kelly and Rodenbaugh had both
taken NBOMe and similar drugs on prior occasions without any adverse effects. Moreover,
O’Kelly “himself[] ingested the same [number of hits] as [Rodenbaugh] on the same
occasion, yet remained coherent.” Id. O’Kelly’s own use of NBOMe shows that he did not
perceive that it posed any substantial or imminent risk of death. Dr. Funte testified that
“NBOMe is incredibly potent” and “has been linked to death at very, very low levels of the
drug.” She also testified that its effects are highly “unpredictable.” However, she also
agreed that NBOMe was a relatively new drug in August 2014. There was no evidence the
drug’s dangers were “common knowledge” in August 2014. Id. As in Lofthouse, “there was
no proof that [O’Kelly] or any other layperson should have been aware that there was a
substantial risk that [Rodenbaugh] would die from ingesting [NBOMe].” Id.
¶40. The Kentucky Supreme Court’s opinion addressing similar facts and issues in
Lofthouse is persuasive. We likewise conclude that, based on the evidence admitted at trial,
O’Kelly’s singular act of selling or giving Rodenbaugh two hits of NBOMe is insufficient
to demonstrate either “grave recklessness manifesting utter disregard or indifference to a
resultant creation of eminent danger to human life” (depraved-heart murder) or “negligence
of a degree so gross as to be tantamount to a wanton disregard, or utter indifference to, the
safety of human life” (culpable-negligence manslaughter). McCarty, 247 So. 3d at 269
(¶¶27, 29). Therefore, we reverse and render a judgment of acquittal on Count II of the
indictment.
19
III. Motion to Suppress
¶41. As described above, O’Kelly spoke to Lieutenant Word at his apartment and again at
the police station. Lieutenant Word testified that he advised O’Kelly of his Miranda rights
prior to those statements, and O’Kelly agreed to talk. In addition, Detective Bill Lott
interviewed O’Kelly at the police station after obtaining a signed Miranda waiver. O’Kelly’s
interviews at the police station were videotaped. O’Kelly also signed a written statement
following his interview with Lott, which was admitted into evidence at trial.
¶42. Prior to trial, O’Kelly filed a two-page motion to suppress “any and all statements,
admissions, and/or purported confessions whether oral, written or otherwise recorded made
by [him] to law enforcement officers . . . while in custody.” He also moved to suppress “any
and all evidence obtained as a result of [his] illegal interrogation.” O’Kelly argued that he
did not knowingly, voluntarily, and intelligently waive his Miranda rights because he was
under the influence of drugs and alcohol, had been up for over eighteen hours without sleep,
and had just been informed of his friend’s death.
¶43. At the pretrial suppression hearing, Word testified that he advised O’Kelly of his
rights at the very beginning of their conversation at the apartment. A second officer—Taylor
Wells—who was present at the apartment corroborated Word’s testimony. Word and Wells
both testified that O’Kelly did not appear to be under the influence of drugs or alcohol, that
his speech was normal, and that he was lucid and coherent. Both testified that O’Kelly
appeared to understand his rights and that his statements were made voluntarily, without any
20
threats or coercion. Word also testified that O’Kelly was not in custody at the outset of their
conversation.
¶44. Detective Lott also testified that O’Kelly did not appear to be under the influence at
the police station, that his speech was normal, and that his statements were lucid. Lott
testified that O’Kelly signed the Miranda waiver voluntarily.
¶45. O’Kelly did not testify at the suppression hearing. The trial judge denied the motion
to suppress, finding that O’Kelly’s Miranda waivers and subsequent oral and written
statements were knowingly, voluntarily, and intelligently given.
¶46. On appeal, O’Kelly makes a somewhat different and narrower argument than he did
in the circuit court. His two-paragraph appellate argument cites no authority and focuses
entirely on statements that he made to Lieutenant Word at his apartment. He argues that he
“was high on drugs,” “had just been told that [Rodenbaugh] had died,” and later “had no
recollection of receiving a Miranda warning.” O’Kelly acknowledges that at the police
station he “was read his rights, asked if he understood his rights, and then signed a [written
waiver].” But he argues this was “too late as the damage had already been done.”
¶47. O’Kelly’s argument on appeal is without merit for several reasons. First, he cites no
legal authority and fails to develop the argument. See Summerall v. State, 734 So. 2d 242,
246 (¶20) (Miss. Ct. App. 1999) (“Failure to cite to legal authority bars any consideration of
the assigned error.”). Second, because O’Kelly did not testify at the suppression hearing,
there was no evidence before the trial judge that O’Kelly was still “high on drugs” or did not
21
recall receiving a Miranda warning. See, e.g., Moffett v. State, 49 So. 3d 1073, 1101 (¶91)
(Miss. 2010) (“We will not hold a trial court in error on appeal for a matter not presented to
it for decision.” (internal quotation marks omitted)). Third, the testimony of Word and Wells
is substantial evidence that supports the trial judge’s finding that O’Kelly’s waiver and
subsequent statements were given knowingly, voluntarily, and intelligently. See Holland v.
State, 587 So. 2d 848, 860 (Miss. 1991) (holding that a trial judge’s finding that a waiver was
knowing, voluntary, and intelligent must be affirmed if it was “based . . . upon appropriate
principles of law” and “is supported by . . . substantial evidence”). This is particularly true
since O’Kelly presented no countervailing evidence at the suppression hearing.
¶48. In addition, O’Kelly fails to address the admissibility of his subsequent oral and
written statements at the police station, which provided more detail and more incriminating
information than his initial statements to Word at the apartment. Any challenge to those
subsequent statements would raise different legal issues, which O’Kelly’s appellate briefs
simply do not address. In the absence of any challenge to O’Kelly’s subsequent statements,
we cannot say that O’Kelly was prejudiced by the admission of his statements to Word at the
apartment.
¶49. In summary, there is substantial evidence to support the trial judge’s decision denying
the motion to suppress, and this issue is without merit.
IV. Additional Issues
¶50. In the last section of his brief, under the heading “Statement of Additional Grounds
22
on Appeal,” O’Kelly asserts that “there are several additional grounds which support a
reversal and remand of this case.” He then briefly discusses four alleged trial errors.
However, he cites no authority, and these alleged errors are not listed in his statement of
issues. The State argues that these issues are waived as a result. See, e.g., Reed v. State, 987
So. 2d 1054, 1056 (¶8) (Miss. Ct. App. 2008) (declining to address issues not listed in the
appellant’s statement of issues); Summerall, 734 So. 2d at 246 (¶20) (“Failure to cite to legal
authority bars any consideration of the assigned error.”).
¶51. We conclude that it is unnecessary to address these issues because all involve
evidence (either admitted or excluded) or arguments of counsel that relate to O’Kelly’s
conviction for murder, which we reverse and render. We cannot see that any of the alleged
errors contributed to O’Kelly’s conviction for drug trafficking.
¶52. However, we will briefly discuss one of these issues to address some apparent
confusion. O’Kelly argues that the circuit court erroneously admitted a November 15, 2013
DEA press release announcing that NBOMe had been listed as a Schedule I controlled
substance. See supra n.1.6 However, the press release was not admitted into evidence. At
trial, the State attempted to introduce the November 2013 DEA final order or a related press
release. The State argued that the order was relevant because it reported that NBOMe had
been implicated in seventeen deaths, including fourteen from acute toxicity. However,
O’Kelly objected on relevance grounds, and the circuit court sustained the objection. The
6
O’Kelly’s brief mistakenly states that the release was dated November 15, 2014.
23
State subsequently asked the court to reconsider, but the court adhered to its prior ruling.7
¶53. On cross-examination, the State asked O’Kelly whether he was aware that seventeen
deaths had been attributed to NBOMe. O’Kelly’s counsel objected, but the circuit court
overruled his objections, mistakenly stating that a “[p]revious witness . . . testified to that.”
Presumably, the court was referring to Dr. Funte, but Dr. Funte only testified that the DEA
made NBOMe a controlled substance in November 2013. She did not testify about the
contents of the DEA order or that any specific number of deaths had been linked to NBOMe.
O’Kelly answered that he was not aware of any reported deaths from NBOMe.
¶54. Finally, in closing argument, the State argued that in November 2013 the DEA
reported that there had been “nineteen deaths” linked to NBOMe. O’Kelly’s counsel
objected and moved for a mistrial, arguing that the State was “reading something not in
evidence.” The court sustained the objection but denied the motion for a mistrial. The State
then repeated that “nineteen deaths” had been linked to NBOMe by November 2013.
¶55. “[Q]uestions asked by lawyers [are] not evidence—only the answers given by
witnesses.” May v. State, 460 So. 2d 778, 783 (Miss. 1984). Therefore, the questions that
O’Kelly was asked on cross-examination had no evidentiary value. Likewise, “arguments
of counsel are not evidence.” One 1970 Mercury Cougar v. Tunica Cty., 115 So. 3d 792, 796
(¶20) (Miss. 2013). Thus, there was no competent evidence of the contents of the November
7
The State does not challenge the circuit court’s ruling on appeal, so the issue is not
before this Court. See Burks v. United States, 437 U.S. 1, 5 n.4 (1978) (“There is no claim
in this case that the trial court committed error by excluding prosecution evidence which, if
received, would have rebutted any claim of evidentiary insufficiency.”).
24
2013 DEA order or the number of deaths that had been attributed to NBOMe—only that the
DEA had designated NBOMe as a controlled substance.
¶56. As stated above, because we reverse and render O’Kelly’s conviction for depraved-
heart murder, we need not address his other “additional grounds on appeal.”
V. Resentencing
¶57. “[W]hen a defendant is convicted of more than one count of a multicount indictment,
the [circuit] court is likely to fashion a sentencing package in which sentences on individual
counts are interdependent.” Sallie v. State, 237 So. 3d 749, 756-57 (¶29) (Miss. 2018)
(quoting United States v. Shue, 825 F.2d 1111, 1114 (7th Cir. 1987)). “[B]ecause the
sentences are interdependent, reversal of convictions underlying some, but not all, of the
sentences renders the sentencing package ineffective in carrying out the [circuit] court’s
sentencing intent as to any one of the sentences on the affirmed convictions.” Id. at 757
(¶29) (quoting Shue, 825 F.2d at 1114). “‘[A]fter an appellate court unwraps’ the original
sentencing package by removing ‘one or more charges from its confines, . . . common sense
dictates that the judge should be free to review the efficacy of what remains in light of the
original plan,’ and be allowed ‘to reconstruct the sentencing architecture upon remand,
within applicable constitutional and statutory limits, if that appears necessary in order to
ensure that the punishment still fits both crime and criminal.’” Id. at 756 (¶28) (quoting
United States v. Pimienta-Redondo, 874 F.2d 9 (1st Cir. 1989)).
¶58. In this case, the circuit court sentenced O’Kelly to concurrent terms of twenty years
25
in MDOC custody for depraved-heart murder and ten years in MDOC custody for drug
trafficking. Under the drug trafficking statute, the court could have imposed a longer
sentence. See Miss. Code Ann. § 41-29-139(f). As our Supreme Court reasoned in Sallie,
it is possible that the circuit court’s original sentence for drug trafficking was influenced by
the murder sentence that the court imposed the same day. O’Kelly’s conviction and sentence
for murder now stand reversed. The Supreme Court’s opinion in Sallie makes clear that in
this situation the proper course is to remand the case to the circuit court for resentencing on
the remaining conviction for drug trafficking. See Sallie, 237 So. 3d at 755-57 (¶¶26-30).
Therefore, pursuant to Sallie, we remand the case to the circuit court for resentencing.
CONCLUSION
¶59. We affirm O’Kelly’s conviction for trafficking in a controlled substance. We reverse
and render a judgment of acquittal on Count II of the indictment, charging depraved-heart
murder, because there is insufficient evidence to support that charge or the lesser-included
offense of culpable-negligence manslaughter. We remand the case for resentencing on the
charge of trafficking in a controlled substance.
¶60. AFFIRMED IN PART; REVERSED AND RENDERED IN PART;
REMANDED.
IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, WESTBROOKS AND
TINDELL, JJ., CONCUR. LEE, C.J., SPECIALLY CONCURS WITH SEPARATE
WRITTEN OPINION, JOINED BY IRVING, P.J., WESTBROOKS AND TINDELL,
JJ. CARLTON, J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE WRITTEN OPINION. GREENLEE, J., CONCURS IN PART AND
DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.
26
LEE, C.J., SPECIALLY CONCURRING:
¶61. I agree with the majority that the evidence is insufficient to support O’Kelly’s
conviction for depraved-heart murder, and therefore, should be reversed.
¶62. I write separately to express that I disagree, however, that where we have affirmed
O’Kelly’s conviction for trafficking in a controlled substance, the case should be remanded
for resentencing on the trafficking conviction. I recognize that the majority correctly relies
on the Mississippi Supreme Court’s recent decision in Sallie v. State, 237 So. 3d 749 (Miss.
2018), for its course in remanding the case for resentencing on the trafficking conviction.
But, for the same reasons I dissented in Sallie v. State, 237 So. 3d 758, 762 (¶11) (Miss. Ct.
App. 2016), I am again compelled to state my concerns that this presents the circuit court
with an opportunity to improperly amend O’Kelly’s sentence on his affirmed trafficking
conviction.
¶63. Our caselaw has long held that, “Once a circuit or county court exercises its option
to impose a definite sentence it cannot subsequently set that sentence aside and impose a
greater sentence,” as “such alterations are improper.” Eastman v. State, 909 So. 2d 171, 173
(¶10) (Miss. Ct. App. 2005). But this new course, as permitted by the supreme court’s
decision in Sallie, gives the circuit court the opportunity to do just that. I fundamentally
disagree that where an appellate court has found one conviction or sentence improper, we
should disrupt that which was not found improper. Just as when “a case is affirmed on
appeal, the lower court is issued a mandate to perform purely ministerial acts in carrying out
27
the original sentence[]” so also should it be where an individual conviction is affirmed on
appeal. Sallie, 237 So. 3d at 753-54 (¶18). Accordingly, I would find that in the instant case,
the circuit court should only perform the ministerial act of rendering a judgment of acquittal
on O’Kelly’s depraved-heart-murder conviction and imposing the original sentence as to his
trafficking conviction.
¶64. Sallie’s holding gives way to punish a defendant who prevails in part on appeal by
exposing him to a greater sentence than he originally incurred—even for the conviction that
was affirmed. Despite his success, the circuit court may still exact “one pound of flesh,”8
except in this instance—maybe more, maybe less. For these reasons, I specially concur.
IRVING, P.J., WESTBROOKS AND TINDELL, JJ., JOIN THIS OPINION.
CARLTON, J., CONCURRING IN PART AND DISSENTING IN PART:
¶65. I respectfully concur in part and dissent in part from the majority’s opinion. I concur
with the majority in affirming O’Kelly’s conviction for trafficking in a controlled substance.
I dissent from the majority’s finding that the evidence is insufficient to establish depraved-
heart murder. The majority finds that the sufficiency and weight of the evidence fail to
support O’Kelly’s conviction for depraved-heart murder or the lesser-included offense of
culpable-negligence manslaughter, and the majority reverses and renders a judgment of
acquittal on that count. Because I submit that the evidence presented at trial sufficiently
supports O’Kelly’s conviction for depraved-heart murder, then, in keeping in mind our
8
William Shakespeare, The Merchant of Venice, act 4, sc. 2.
28
standard of review, I would affirm O’Kelly’s conviction and sentence. See Gary v. State, 237
So. 3d 140, 147-48 (¶¶35, 38) (Miss. 2018).9
¶66. The Mississippi Supreme Court has recognized a broad interpretation of depraved-
heart murder. Clayton v. State, 652 So. 2d 720, 726 (Miss. 1995) (citing Mallett v. State, 606
So. 2d 1092 (Miss. 1992) and Windham v. State, 602 So. 2d 798 (Miss. 1992)). Additionally,
depraved-heart murder is defined by Mississippi Code Annotated section 97-3-19(1)(b) (Rev.
2014) as the following:
(1) The killing of a human being without the authority of law by any means or
in any manner shall be murder . . .
....
(b) [w]hen done in the commission of an act eminently
dangerous to others and evincing a depraved heart, regardless of
human life, although without any premeditated design to effect
the death of any particular individual. . . .
¶67. The record reflects that the State presented sufficient evidence as to the essential
elements of depraved-heart murder. The supreme court has described conduct evincing a
depraved heart as “grave recklessness manifesting utter disregard or indifference to the
resultant creation of eminent danger to . . . [human] life.” Windham, 602 So. 2d at 802. As
9
“When reviewing the sufficiency of the evidence, the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id.
at 147 (¶35) (internal quotation mark omitted). When reviewing the weight of the evidence,
“we weigh the evidence in the light most favorable to the verdict, only disturbing a verdict
when it is so contrary to the overwhelming weight of the evidence that to allow it to stand
would sanction an unconscionable injustice.” Id. at 147-48 (¶38) (internal quotation mark
omitted).
29
stated in the plain language of the statute, no premeditated design to effect the death of any
particular individual is required. In viewing the evidence in the light most favorable to the
State, the record shows that rational jurors could have found the State proved each element
of the crime.
GREENLEE, J., CONCURRING IN PART AND DISSENTING IN PART:
¶68. I join the majority in affirming O’Kelly’s conviction for trafficking in a controlled
substance and in finding the evidence insufficient to establish depraved-heart murder. But
I dissent to the extent the majority finds the evidence insufficient to establish culpable-
negligence manslaughter.
¶69. In this case, the jury convicted O’Kelly of depraved-heart murder and therefore
implicitly found him guilty of the lesser-included offense of culpable-negligence
manslaughter.10 Shields v. State, 722 So. 2d 584, 587 (¶7) (Miss. 1998) (“[G]uilt of a true
lesser[-]included offense is implicitly found in the jury’s verdict of guilt on the greater
offense.”). Culpable-negligence manslaughter is the “killing of a human being, by the act,
procurement, or culpable negligence of another, and without authority of law.” Miss. Code
Ann. § 97-3-47 (Rev. 2014). It is distinguishable from depraved-heart murder “simply by
degree of mental state of culpability.” Hawkins v. State, 101 So. 3d 638, 643 (¶17) (Miss.
2012).
¶70. At the time O’Kelly gave NBOMe to Rodenbaugh, it had been on the federal Drug
10
By statute, manslaughter is a lesser-included offense of murder. See Miss. Code
Ann. § 97-3-19 (Rev. 2014).
30
Enforcement Administration’s and Mississippi’s lists of controlled substances. Expert
testimony indicated that NBOMe is incredibly potent, has been linked to death at very low
levels, and can cause death in a short period of time. In addition, users of NBOMe cannot
develop a tolerance to it, and it is impossible to predict which concentration of the drug could
result in death. Given the properties of this drug and its illicit procurement, a reasonable
juror could find that O’Kelly’s act of giving it to Rodenbaugh was “negligence of a degree
so gross as to be tantamount to a wanton disregard, or utter indifference to, the safety of
human life.” McCarty v. State, 247 So. 3d 260, 269 (¶29) (Miss. Ct. App. 2017).
¶71. Because the jury’s verdict encompassed a finding of guilt as to the lesser-included
offense of culpable-negligence manslaughter, I would remand this case to the trial court for
resentencing on only culpable-negligence manslaughter. Alternatively, as the majority seems
to determine that the verdict “is so contrary to the overwhelming weight of the evidence that
to allow it to stand would sanction an unconscionable injustice,” the proper remedy would
be to grant a new trial on the basis of culpable-negligence manslaughter. Little v. State, 233
So. 3d 288, 292 (¶21) (Miss. 2017). I therefore respectfully concur in part and dissent in
part.
31