MELTON v. STATE (2025)

¶1. Emily Melton was convicted of misdemeanor child abuse following a bench trial in circuit court. Because Melton did not expressly waive her constitutional right to a jury trial, we reverse her conviction and remand the case for a new trial.

FACTS AND PROCEDURAL HISTORY

¶2. In 2021, Melton was employed at a church daycare in Philadelphia. On the morning of March 2, 2021, fourteen-month-old C.P.¹ and three other children around the same age were in Melton's care in a “baby room” at the daycare. Melton was the only caregiver in the room until another worker, Alana Bozeman, relieved her for her lunch break. According to Bozeman, the children were in their highchairs eating lunch when she first arrived in the room. Around noon, Bozeman started cleaning up the children and putting them in their cribs. When Bozeman began to change C.P.’s diaper, she noticed scratches and a bruise. Concerned by what she saw, Bozeman immediately notified Alexis Bush, a worker in the next room. Bush testified that the injuries appeared to be “fresh” or to have “just recently happened.” Bozeman and Bush then notified their supervisor, Bethany Thames.

¶3. Thames testified that the red marks on C.P.’s legs did not appear to be a rash. Thames also noticed what she described as “fingernail marks” under C.P.’s arms. Thames photographed C.P.’s injuries, sent the photos to C.P.’s mother, and then called her.

¶4. The next day, C.P.’s mother and the director of the daycare reviewed video footage of the baby room from the previous morning. C.P.’s mother believed the video showed “several instances of abuse and very aggressive behavior” by Melton. C.P.’s mother took C.P. to Anderson Family Medical Center, where nurse practitioner Hanna Johnson examined her. Johnson testified that C.P. had “four subcentimeter abrasions” and “three approximately one centimeter” contusions on her right armpit, “four subcentimeter contusions” and “three subcentimeter abrasions” on her left armpit, “four adjacent one centimeter contusions” and a “subcentimeter abrasion” on her left inner thigh, “four adjacent one centimeter contusions” on her right thigh, and a “one centimeter contusion” on her right arm.

¶5. C.P.’s mother next went to the Philadelphia Police Department and gave a written statement to Investigator Bobby Pattillo. Pattillo reviewed photos of C.P.’s injuries and the video footage from the daycare and signed an affidavit charging Melton with misdemeanor child abuse. See Miss. Code Ann. § 97-5-39(1)(a) (Rev. 2020).

¶6. In April 2021, following a bench trial in Philadelphia Municipal Court, Melton was convicted, fined $288.75, and sentenced to serve thirty days in the county jail.² She appealed to the Neshoba County Circuit Court for a trial de novo. After the recusal of both circuit judges in the district, a specially appointed judge held a bench trial in January 2024.

¶7. Thames, Johnson, Bozeman, Bush, Pattillo, and C.P.’s mother testified during the State's case-in-chief. Video footage of the baby room throughout the morning of March 2, 2021, and photos of C.P.’s injuries were also admitted into evidence. Melton moved for a “directed verdict” at the close of the State's case-in-chief, but the judge denied her motion. Melton then called one witness, her sister-in-law, Betsey Melton. She testified that her child was in C.P.’s class at the time of the alleged incident, that Melton routinely babysat her child, and that she had never witnessed any “inappropriate” action by Melton toward her child or “had a similar incident happen to [her] child.”

¶8. During closing arguments, the prosecutor pointed to parts of the video that appeared to show Melton picking up another child and intentionally swinging the child into C.P. to strike her, grabbing and shoving C.P.’s arm into a wagon, and forcefully placing C.P. on the changing table, causing C.P. to scream and cry. Defense counsel disputed the prosecutor's characterization of the video and asked the judge to review it again. The judge indicated he intended to take the matter under advisement and would review the video and other exhibits before making his ruling.

¶9. One month later, the judge entered an order of conviction and sentence finding Melton guilty of contributing to the neglect of a child. The judge sentenced Melton to 120 days in the county jail with 90 days suspended and 30 days to serve and imposed a fine of $283.75.³ Melton filed a motion for a new trial in which she argued, inter alia, that she “should have been afforded” a jury trial because the maximum sentence for the charged offense was imprisonment for one year. She argued that the trial court violated her state and federal constitutional rights by not affording her a jury trial. After the trial court denied Melton's motion for a new trial, she filed a notice of appeal.

ANALYSIS

¶10. On appeal, Melton argues that her constitutional right to a jury trial was violated, that there is insufficient evidence to support her conviction, and that the trial court's verdict was contrary to the weight of the evidence.

I. Jury Trial

¶11. Under the Sixth Amendment to the United States Constitution, applied to the states through the Fourteenth Amendment, “a defendant is entitled to a jury trial whenever the offense for which he is charged carries a maximum authorized prison term of greater than six months.” Blanton v. City of N. Las Vegas, 489 U.S. 538, 542, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989). When she appealed to circuit court for a trial de novo, Melton was subject to a maximum prison term of one year. Miss. Code Ann. § 97-5-39(1)(a).⁴ Therefore, Melton had a constitutional right to a jury trial in circuit court.

¶12. The Mississippi Rules of Criminal Procedure provide that “[t]he defendant may waive the right to trial by jury with consent of the prosecution and the court.” MRCrP 18.1(b). However, Rule 18.1(b) further provides:

Regarding any such waiver:

(1) Before acceptance, the court shall address the defendant personally, advise the defendant of the right to a jury trial, and ascertain that the waiver is knowing, voluntary, and intelligent.

(2) A waiver of jury trial or sentencing under this Rule shall be made in writing or in open court on the record.

Id. (emphasis added); see Longs v. State, 388 So. 3d 630, 633 (¶12) (Miss. Ct. App. 2024).

¶13. The requirements of Rule 18.1(b) have constitutional underpinnings. In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court held:

Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination ․ Second, is the right to trial by jury. Third, is the right to confront one's accusers. We cannot presume a waiver of these three important federal rights from a silent record.

Id. at 243, 89 S.Ct. 1709 (emphasis added) (citations omitted). Expounding on Boykin, the Mississippi Supreme Court has held:

Clearly, the fact that the waiver of these three fundamental rights, including jury trial, cannot be presumed is the ground out of which the Boykin requirement of an affirmative, on the record, showing of waiver grows․ If the determination, by some means, of the knowing and voluntary waiver of each of the three fundamental rights is not required, there can be no other basis for Boykin. However it is done, a trial court must satisfy itself that the waiver of fundamental constitutional rights is knowing and voluntary. It is the duty of the trial court to assure that kind of knowledge and volition ․

Chunn v. State, 669 So. 2d 29, 32 (Miss. 1996) (citations omitted). In Chunn, the Mississippi Supreme Court also quoted the United States Supreme Court's holding that “any waiver” of the right to a jury trial requires “the express and intelligent consent of the defendant.” Id. (emphasis added) (quoting Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 74 L.Ed. 854 (1930), overruled in part on other grounds by Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970)). Moreover,

the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity.

Id. (quoting Patton, 281 U.S. at 312-13, 50 S.Ct. 253).

¶14. Applying these precedents, numerous courts have held that any waiver of the right to a jury trial must be express, not implied. Moreover, waiver cannot be inferred from a mere failure to request a jury or the defendant's acquiescence in a bench trial. Nor can waiver be inferred from a silent record.⁵ Likewise, in the context of a defendant's waiver of a jury in the sentencing phase of a capital case, the Mississippi Supreme Court has stated that “[w]aiver may not be assumed or implied from a silent record.” Wilson v. State, 81 So. 3d 1067, 1087 (¶30) (Miss. 2012) (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)).

¶15. In the present case, the trial court wholly failed to comply with Rule 18.1(b). The trial court did not address Melton personally, advise her of her right to a jury trial, or ascertain that she knowingly, intelligently, and voluntarily waived that right. Nor did Melton waive her right to a jury trial in writing or in open court on the record. Rather, the pretrial record is wholly silent regarding Melton's right to a jury trial. The most that can be said is that Melton failed to request a jury trial and acquiesced in a bench trial. By dispensing with a jury in the absence of a knowing and express waiver by Melton, the trial court failed to comply with Rule 18.1(b) and violated Melton's constitutional right to a jury trial. Accordingly, Melton's conviction must be reversed and her case remanded for a jury trial. Harkins v. State, 735 So. 2d 317, 318-19 (¶¶2-3) (Miss. 1999).

¶16. Despite Rule 18.1(b) and the other authority cited above, the State argues that Melton “waived her right to a jury trial” by “failing to raise the issue prior to [trial]” and by “not rais[ing] an objection to the [c]ourt proceeding with a [b]ench [t]rial.” In making this argument, the State relies on Frazier v. State, 817 So. 2d 663, 664 (¶3) (Miss. Ct. App. 2002), a case this Court decided fifteen years before our Supreme Court promulgated the Mississippi Rules of Criminal Procedure. The State's reliance on Frazier is misplaced. To begin with, Frazier’s statement that the defendant waived the issue “because he [did] not preserve his request for a jury trial in the record,” id., was dicta. In the very next paragraph, the Court explained that because the defendant was a minor, he should have been sentenced for second-offense DUI under a different statutory provision that authorized only a $500 fine and a driver's license suspension, not imprisonment. See id. at 664 (¶4); Miss. Code Ann. § 63-11-30(3)(c) (Supp. 2000). Because the maximum penalty the defendant faced was a fine and a license suspension, the defendant was not entitled to a jury trial at all. Therefore, the opinion's discussion of the defendant's supposed waiver was unnecessary and dicta.⁶

¶17. More important, Frazier’s finding of a waiver based upon a mere failure to request a jury trial is clearly inconsistent with the requirements of Rule 18.1(b), which became effective July 1, 2017. Frazier’s finding of waiver is also clearly inconsistent with Boykin’s holding that a “waiver” of “the right to trial by jury” “cannot [be] presume[d] ․ from a silent record.” Boykin, 395 U.S. at 243, 89 S.Ct. 1709. Therefore, we take this opportunity to expressly abrogate Frazier’s dicta regarding waiver.⁷

¶18. The dissent argues that “no Mississippi case ․ requires a jury trial ․ in the absence of a request” by the defendant. Post at ¶28. But, in fact, that is exactly what Mississippi Rule of Criminal Procedure 18.1(b) requires. Specifically, a jury trial may be waived only after the court has “addresse[d] the defendant personally, advise[d] [her] of the right to a jury trial, and ascertain[ed] that the waiver is knowing, voluntary and intelligent.” MRCrP 18.1(b)(1). Moreover, any “waiver of a jury trial ․ shall”—that is, must—“be made in writing or in open court on the record.” MRCrP 18.1(b)(2). The mandatory requirements of Rule 18.1(b) flow directly from the United States Supreme Court's holding that “[w]e cannot presume a waiver of [the right to a trial by jury] from a silent record,” Boykin, 395 U.S. at 243, 89 S.Ct. 1709, and the Mississippi Supreme Court's holding that any waiver of the right to a jury trial must be “express” and “cannot be presumed,” Chunn, 669 So. 2d at 32. The point of Rule 18.1(b) and these cases is that when the defendant has a right to a jury trial, there shall be a jury trial unless the defendant expressly waives that right on the record. We do not, as the dissent would have it, presume that there will be a bench trial until the defendant makes a specific “request” for a jury.

¶19. In summary, the trial court failed to comply with Rule 18.1(b) and violated Melton's constitutional right to a jury trial by proceeding with a bench trial in the absence of an express waiver of a jury trial. Moreover, Melton did not waive the issue merely by failing to request a jury and acquiescing in a bench trial. Therefore, Melton's conviction must be reversed, and the case must be remanded for a jury trial. Harkins, 735 So. 2d at 318-19 (¶¶2-3).

II. Sufficiency of the Evidence 8

¶20. On appeal, Melton argues that “[t]he trial court erred in refusing to grant [her] a directed verdict.” But since her “case was heard in a bench trial,” “there was no verdict to direct.” Terrell v. State, 151 So. 3d 277, 279 (¶8) (Miss. Ct. App. 2014). Therefore, her “motion is best characterized as a motion to dismiss based on insufficient evidence.” Id. “When reviewing a case for sufficiency of the evidence, the relevant question is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Ude v. State, 992 So. 2d 1213, 1219 (¶22) (Miss. Ct. App. 2008) (quotation marks omitted) (quoting Boyd v. State, 977 So. 2d 329, 336 (¶26) (Miss. 2008)). We “review the evidence in the light most favorable to the State.” Id. (quoting Boyd, 977 So. 2d at 336 (¶28)). “All credible evidence consistent with the defendant's guilt must be accepted as true, and the State is given the benefit of all favorable inferences that may be reasonably drawn from the evidence.” Id. (brackets omitted) (quoting Boyd, 977 So. 2d at 336 (¶28)). We will reverse and render the conviction only if all the evidence and inferences, viewed in the light most favorable to the State, “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty.” Id. at 1218-19 (¶22) (quoting Boyd, 977 So. 2d at 336 (¶25)).

¶21. Melton was charged with contributing to the abuse of a child under Mississippi Code Annotated section 97-5-39(1)(a), which provides in relevant part that

any ․ person who intentionally, knowingly or recklessly commits any act or omits the performance of any duty, which act or omission contributes to or tends to contribute to the neglect or delinquency of any child or which act or omission results in the abuse of any child, as defined in Section 43-21-105(m) of the Youth Court Law, ․ shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine not to exceed One Thousand Dollars ($1,000.00), or by imprisonment not to exceed one (1) year in jail, or by both such fine and imprisonment.

Mississippi Code Annotated section 43-21-105(m) (Rev. 2023) states in relevant part:

“Abused child” means a child whose parent, guardian or custodian or any person responsible for his care or support, whether legally obligated to do so or not, has caused or allowed to be caused, upon the child, ․ nonaccidental physical injury or other maltreatment.

Pursuant to these statutes and the charging affidavit in this case, the State had the burden of proving that Melton intentionally contributed to the neglect or maltreatment of C.P. by pinching or bruising her on her thighs and armpits while she was in Melton's care.

¶22. At trial, the State called six witnesses to testify—three daycare workers, the nurse practitioner who treated C.P., and the police officer who investigated the case. In addition, the State presented video evidence showing some of Melton's treatment of C.P. and the other children in her care on the morning at issue. The video footage corroborated other testimony that Melton was the primary worker in C.P.’s room for the majority of the day. The video also showed several incidents when Melton seemed to be overly aggressive while handling C.P. In one segment of the video, Melton loaded all the children into a wagon to leave the room for play time. Melton could be seen roughly plopping C.P. into the wagon. Shortly thereafter, Melton removed C.P. from the wagon. When Melton removed the next child from the wagon, she struck C.P. with the child's body, seemingly intentionally or at least recklessly. When the children were finally loaded back into the wagon to leave the room, Melton forcibly shoved C.P.’s arms back inside the wagon multiple times. In a second clip from the video, Melton picked up C.P. and awkwardly placed her on the changing table by grabbing the inside of one of her thighs. In that moment, C.P.’s demeanor changed from apparent contentment to screaming and crying, and C.P. continued to scream throughout the diaper change. Melton's body was blocking the view of the child's body and Melton's hands during the diaper change.

¶23. C.P.’s mother testified that C.P. did not have any bruises, scratches, or abrasions on her body before she arrived at the daycare on the morning of March 2, 2021. Each of the daycare workers who testified stated that they discovered marks on C.P.’s body after lunch on March 2 and that Melton was the only daycare worker in the room until lunch. The daycare workers described the marks as “scratches,” “bruises,” and “fingernail marks” that appeared “fresh” or recent. Nurse practitioner Johnson described C.P.’s injuries as a series of abrasions, contusions, and bruises. Finally, Investigator Patillo described C.P.’s injuries as “pinch marks” and “abrasions.” Patillo did not believe that C.P.’s injuries could have been caused by another child; rather, he believed they were caused by an adult.

¶24. Viewing the testimony and other evidence in the light most favorable to the State, a rational trier of fact could have found Melton guilty of the charged crime beyond a reasonable doubt. Accordingly, the trial court did not err by denying Melton's motion for a “directed verdict.”

CONCLUSION

¶25. Because Melton did not expressly waive her constitutional right to a jury trial, we reverse her conviction and remand the case for a new trial.

¶26. REVERSED AND REMANDED.

¶27. This case came before the circuit court on appeal from a municipal court for a trial de novo. It is clear that neither the defendant, nor the defendant's attorney, made a request for a jury trial in the circuit court prior to trial. The case proceeded as a bench trial. The judgment of conviction and sentencing was entered on February 23, 2024. Ten days later, on March 4, 2024, the defendant's motion for new trial was filed in which she first raised the issue of her right to a trial by a jury. Because I would affirm the judgment of the circuit court under the facts of this case, I respectfully dissent.

¶28. I agree with the majority that Melton had a constitutional right to a trial by jury in the circuit court. However, I find no Mississippi case, and the majority points to none, that requires a jury trial in such cases in the absence of a request. Instead, our caselaw has only addressed the issue where a request for a jury trial was denied. In Harkins v. State, 735 So. 2d 317, 318 (¶2) (Miss. 1999), the supreme court stated:

The State confesses reversible error in the present case, acknowledging that the trial court erred in refusing Harkins’ request for a jury trial. Uniform Rules of Circuit and County Court Practice 12.02(c) provides in part that “[i]n appeals from justice or municipal court when the maximum possible sentence is six months or less, the case may be tried without a jury at the court's discretion․” Rule 12.02(c) thus only grants the trial court discretion to deny a defendant's request for a jury trial in cases in which the maximum possible sentence is six months or less. This provision is based upon United States Supreme Court decisions presumption that offenses carrying maximum sentences of six months or less are “petty offenses” to which the Sixth Amendment right to trial by jury does not apply. See e.g., Lewis v. United States, 518 U.S. 322, 116 S. Ct. 2163, 135 L. Ed. 2d 590 (1996); Blanton v. City of North Las Vegas, 489 U.S. 538, 109 S. Ct. 1289, 103 L. Ed. 2d 550 (1989); Baldwin v. New York, 399 U.S. 66, 90 S. Ct. 1886, 26 L. Ed. 2d 437 (1970) (plurality).

(Emphasis added). In Walls v. Spell, 722 So. 2d 566, 572 (¶25) (Miss. 1998), the supreme court stated:

In Mississippi, there is no maximum penalty for the crime of criminal contempt. See Miss. Code Ann. § 11-51-11(4) (Supp.1997). The statute does provide that “[a] contemnor shall not be entitled to a jury trial unless the contemnor requests a jury trial and unless the fine exceeds five hundred dollars ($500.00), or the imprisonment exceeds six (6) months.” Id.

(Emphasis added). In Skinner v. State, 809 So. 2d 782, 784 (¶4) (Miss. Ct. App. 2002), this Court held:

The issue presented in this case, as to whether a defendant charged with DUI second offense under Mississippi Code Annotated Section 63-11-30(2)(b) (Supp. 2001) has a right to a jury trial, was addressed by our supreme court in Harkins v. State, 735 So. 2d 317, 318 (Miss.1999) (citations omitted)․ The Harkins court reversed and remanded a conviction when a trial court denied the request for a jury trial under the same facts and law present in this case. Id. Therefore, we reverse and remand the conviction of DUI second offense for further proceedings not inconsistent with this opinion.

(Emphasis added). In Ude v. State, 992 So. 2d 1213, 1217-18 (¶18) (Miss. Ct. App. 2008), this Court repeated:

Therefore, as the offense of stalking is punishable by up to one year in jail, Ude had the right to a jury trial, and the circuit court had no discretion to deny him that right. The State confesses reversible error in this case, acknowledging that although Ude requested a jury trial, he did not receive one. Therefore, we find that the circuit court erred in denying Ude a jury trial and reverse the judgment of the circuit court.

(Emphasis added). And, finally, in Frazier v. State, 817 So. 2d 663, 664 (¶3) (Miss. Ct. App. 2002),⁹ this Court held:

The Constitution of the United States guarantees a jury trial to all persons charged with a “serious offense.” A serious offense is one for which the defendant could be sentenced to more than six months in jail for committing. Blanton v. North Las Vegas, 489 U.S. 538, 542-43, 109 S. Ct. 1289, 103 L. Ed. 2d 550 (1989). In Mississippi, a defendant charged with a second offense DUI is entitled a jury trial, since the maximum sentence is one year's imprisonment. Harkins v. State, 735 So. 2d 317, 317-19 (¶2-3) (Miss. 1999). But Frazier's assignment of error must fail because he does not preserve his request for a jury trial in the record. It is the appellant's responsibility to assemble a complete record of proceedings, and failure to provide a record will invalidate an appeal.

(Emphasis added). Based upon the above, I would find that the circuit court did not err by proceeding with a bench trial in the absence of a request by Melton.

¶29. I would further note that the circuit court may have been sandbagged in this case. The trial judge was a senior judge who was appointed to hear this case after the recusal of both circuit judges in the district. This senior judge was a retired circuit judge who had served in a district with a county court. Accordingly, the senior judge, in his service as a circuit judge, would not have had an occasion to conduct a trial de novo on appeal from a municipal court.

¶30. Melton's attorney first raised her right to a jury trial in the motion for a new trial, which was filed almost immediately after she was found guilty of the offense. This is similar to a case where an appellee waited until an adverse decision had been handed down by the Mississippi Supreme Court to contend that one of the justices should have recused himself. Thomas v. State, 517 So. 2d 1285, 1289 (Miss. 1987). In the supreme court's order denying rehearing, see Order, Ryals v. Pigott, 580 So. 2d 1140, 1175 (Miss. June 12, 1991), the supreme court stated:

A party who fails, through wilful ignorance or otherwise, to timely apprise itself of such critical information waives the right to have the issue addressed on the merits. This principle of well-entrenched law is designed particularly to nullify the “rewards” of “sandbagging” through employment of dilatory tactics. See, e.g., Keppel v. BaRoss Builders, Inc., 7 Conn. App. 435, 509 A. 2d 51, 55-56 (1986) (“Counsel for the defendant did not voice the issue of disqualification until it became clear that his most important witness ․ would not testify. This is the very ‘sandbagging’ technique that [this] court [has] discountenanced.”); Crawford v. State, 617 S.W.2d 925, 938 (Tex. Crim. App. 1980) (“The waiver leg rests on the theories that defendants should not be allowed to ‘sandbag’ trial judges and that counsel may deliberately choose, for tactical reasons, to waiver certain rights.”) (Roberts, J., dissenting); Boulware v. State, 542 S.W. 2d 677, 681 (Tex. Crim. App. 1976) (“The issue with which we are faced here can only be resolved against appellant's contention. To do otherwise would allow counsel two, if not more opportunities to obtain an acquittal. It would allow defense counsel to purposely ‘sandbag’ the trial judge into error if he received an adverse verdict.”).

(Footnote omitted) (emphasis added). In his dissent in Thomas, Justice Robertson described sandbagging as follows:

But “sandbagging” by definition assumes a meaningful opportunity to present the point to the trial court, coupled with a deliberate cynical refusal to do so.

Melton's counsel had a “meaningful opportunity” to bring the issue of a jury trial to the trial court's attention prior to trial, but did not do so. The fact that counsel raised the issue immediately after his client was convicted leaves the impression that he may have purposely failed to raise the issue timely.

FOOTNOTES

1.   We use initials to protect the privacy of the minor child.

2.   The municipal court abstract does not mention a jail term and indicates that Melton pled guilty. However, Melton's notice of appeal to circuit court states that the municipal court sentenced her to serve thirty days in jail, and both the trial in municipal court and the thirty-day sentence were discussed on the record prior to the trial in circuit court.

3.   Contrary to Mississippi Rule of Criminal Procedure 26.5, the judgment and sentence were not pronounced in open court or in Melton's presence, and the record does not indicate that Melton waived her right to be present pursuant to Rule 10.1(b). However, Melton does not raise this issue on appeal.

4.   All misdemeanors committed within the corporate limits of a municipality may be prosecuted as “criminal offenses against the municipality.” Miss. Code Ann. § 21-13-19 (Rev. 2015). Therefore, municipal courts have jurisdiction over such misdemeanor cases. Miss. Code Ann. § 21-23-7(1) (Supp. 2021) (“The municipal judge shall have the jurisdiction to hear and determine, without a jury and without a record of the testimony, all cases charging violations of ․ state misdemeanor laws made offenses against the municipality and to punish offenders therefor as may be prescribed by law.”). However, the maximum sentence for any “such misdemeanor” is six months in jail and a $1,000 fine “for each such violation in any case tried without a jury.” Miss. Code Ann. § 21-13-19. Thus, when Melton was tried in municipal court, the maximum sentence was only six months, and she was not entitled to a jury trial. See also Ludwig v. Massachusetts, 427 U.S. 618, 96 S.Ct. 2781, 49 L.Ed.2d 732 (1976) (holding that the denial of a jury trial in the “first tier” of “a ‘two-tier’ system of trial courts” does not violate the Sixth Amendment if the defendant has a right to appeal and obtain a “trial de novo” and a jury trial at the “second tier”). However, the Mississippi Supreme Court has held that when a defendant appeals for a trial de novo in circuit court, “[t]he case is to be regarded exactly as if it had been brought in the Circuit Court in the first instance.” Fisher v. City of Eupora, 587 So. 2d 878, 885 (Miss. 1991) (brackets omitted) (quoting Colten v. Kentucky, 407 U.S. 104, 113, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972)). Thus, the Court held that once a municipal conviction is appealed for a trial de novo, “the action[ is] brought under” the state misdemeanor statute and any greater maximum sentence provided for by the statute. Id. Therefore, in circuit court, Melton was subject to the misdemeanor statute's one-year maximum sentence.

5.   See, e.g., United States v. Mendez, 102 F.3d 126, 130 (5th Cir. 1996) (“[T]he court's decision to proceed with a bench trial without [the defendant's] specific acquiescence also runs afoul of the Constitution․ The proper standard requires an ‘intelligent’ waiver, let alone one that is express.”); Douglass v. First Nat'l Realty Corp., 543 F.2d 894, 899 n.37, 902 (D.C. Cir. 1976) (“[T]here must be an express, positive waiver as distinguished from mere failure to request a jury․ Although appellant did not demand a jury trial, he did not waive it, for no jury trial was offered. Instead, he acquiesced in a [contempt] proceeding charted from the start as nonjury and hence one for a petty offense.”); United States v. Saadya, 750 F.2d 1419, 1422 (9th Cir. 1985) (“A defendant's waiver of his right to jury trial must appear on the record prior to the time the trial commences. The absence of a waiver on the record of the right to trial by jury cannot be remedied by subsequent proceedings on remand.”); United States v. Taylor, 498 F.2d 390, 392 (6th Cir. 1974) (“[W]aiver of a jury trial ․ is the waiver of a basic and important right which cannot be accomplished upon ‘a silent record.’ ”); U.S. ex rel. Gentry v. Cir. Ct. of Cook Cnty., 586 F.2d 1142, 1145 (7th Cir. 1978) (“[W]aiver of a jury trial may never be presumed․ We ․ recognize Boykin ․ for the well established rule that a jury waiver will not be implied from a silent record.”); Girard v. Goins, 575 F.2d 160, 162-63 (8th Cir. 1978) (“In order for such an important constitutional right to be waived there must be an express, positive waiver as distinguished from mere failure to request a jury․ [Mere] acquiescence [in a bench trial] does not amount to an express waiver of the right to a jury trial ․”); Samudio v. State, 648 S.W.2d 312, 314 (Tex. Ct. Crim. App. 1983) (holding that the “inescapable conclusion” from the United States Supreme Court's decisions is that waiver of a jury trial “cannot be presumed from a silent record” or the defendant's acquiescence in a bench trial); State v. Upton, 658 So. 2d 86, 88 (Fla. 1995) (holding that waiver of the right to a jury trial could not be inferred from the “mere fact that [the defendant] remained silent during the trial and did not object to the judge sitting as the fact-finder”); State v. Bays, 87 Ohio St.3d 15, 716 N.E.2d 1126, 1134 (1999) (“A jury waiver must be voluntary, knowing, and intelligent. Waiver may not be presumed from a silent record ․” (citation omitted)); City of Seattle v. Williams, 101 Wash.2d 445, 680 P.2d 1051, 1055 (1984) (“In company with the United States Supreme Court, we are now committed to the principle that waiver of an important constitutional right, such as the right to trial by jury, cannot be assumed from a silent record even though the defendant was represented by counsel.”); State v. Hornung, 613 So. 2d 638, 640 (La. Ct. App. 1992) (“[T]he waiver must be intelligent and knowing and cannot be presumed from a silent record. Even in cases where the defendant makes no request for a jury and proceeds to a bench trial without objection, a waiver cannot be presumed.” (citation omitted)), aff'd, 620 So. 2d 816 (La. 1993); 2 Charles A. Wright et al., Federal Practice and Procedure: Criminal § 372, at 493 (4th ed. 2009) (“There must be an express and positive waiver of the jury trial right by the defendant. Mere failure to request a jury or acquiescence in proceeding without a jury is not enough.” (footnotes omitted)); 6 Wayne R. LaFave et al., Criminal Procedure § 22.1(h), at 43 (4th ed. 2015) (“Waiver of a jury trial cannot be presumed from a silent record.”).

6.   See, e.g., C.W. v. Lamar County, 250 So. 3d 1248, 1254 (¶19) (Miss. 2018) (“It is axiomatic that statements which are unnecessary to a court's ruling are dicta.”).

7.   One additional case bears mentioning. In Robinson v. State, 345 So. 2d 1044 (Miss. 1977), our Supreme Court rejected the argument that “the record must affirmatively reflect that the accused waived his right [to a jury trial] knowingly and voluntarily.” Id. at 1045. The Court held that “[t]he more reasonable approach is to require the making of a record only when the defendant calls the question to the attention of the trial court.” Id. at 1046. The Court then stated: “In this case, the defendant made no objection to his counsel's waiver of trial by jury at the outset of the trial, nor did he raise the issue by a motion for a new trial. Either procedure would have allowed the trial court to hear evidence and to give full consideration to his claim.” Id. However, by promulgating Rule 18.1(b), the Mississippi Supreme Court has abrogated Robinson to the extent Robinson declined to require the trial court to address the defendant personally and make a record regarding any waiver of a jury. See MRCrP 18.1(b)(1). In addition, Robinson is distinguishable from the present case in that it involved an on-the-record waiver of a jury trial, albeit by counsel rather than the defendant personally. Robinson, 345 So. 2d at 1046. In Robinson, the record was not “silent”; rather, the defendant, through counsel, expressly waived a jury on the record. Finally, unlike Robinson, Melton did argue in her motion for a new trial that the denial of a jury trial violated her constitutional rights. The trial court denied Melton's motion for a new trial without a hearing. Accordingly, to whatever extent Robinson remains good law, it is materially distinguishable.

9.   The majority suggests that reliance on this case is misplaced. We think not. The opinion recognizes that Frazier was tried, convicted, and sentenced pursuant to a statute that provided for a maximum period of incarceration of one year. Id. at 663 (¶4). The language quoted confirms that a person prosecuted for such an offense is entitled to a jury trial upon request. The fact that this Court then found that he was sentenced under the wrong statutory provision does not erase the quoted language.

WILSON, P.J., FOR THE COURT:

BARNES, C.J., WESTBROOKS, McDONALD, McCARTY AND WEDDLE, JJ., CONCUR. EMFINGER, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY CARLTON, P.J., LAWRENCE AND ST. PÉ, JJ.