source: Caselaw Access Project

author: CARLSON, Justice,

license: Public Domain

text:
    Steven PAGE v. The UNIVERSITY OF SOUTHERN MISSISSIPPI; J. Yarbrough and S. Ray, Individually and in their Official Capacity as Police Officers of the University of Southern Mississippi.
    No. 2003-CA-00939-SCT.
    Supreme Court of Mississippi.
    July 29, 2004.

      Dana Helene Evans, Jessie L. Evans, attorneys for appellant.
    Richard D. Norton, Lee Partee Gore, Hattiesburg, attorneys for appellees.
    Before WALLER, P.J., CARLSON and DICKINSON, JJ.
   CARLSON, Justice,

for the Court.

¶ 1. Steven Page filed suit under the Mississippi Tort Claims Act (MTCA) in the Circuit Court of Forrest County against the University of Southern Mississippi and Jay Yarbrough and Sammy Ray, individually and in their official capacities as police officers of the University of Southern Mississippi (collectively “the University”), to recover dahiages caused when the two officers stopped Page while he was jogging on campus. The circuit court, Circuit Judge Robert B. Helfrich presiding, granted the University’s motion to dismiss for failure to state a claim on the grounds that the statute of limitations had expired and Page’s suit was now time barred. From this ruling, Page appeals. Finding that Page filed suit against the University well within the allotted one-year statute of limitations, we reverse the judgment of the Circuit Court of Forrest County and remand this case for further proceedings consistent with this opinion.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. According to the well-pled factual allegations of this complaint, while jogging through the campus of the University of Southern Mississippi on June 26, 2001, Steven Page, a student at the University, was approached by two University police officers, Jay Yarbrough and Sammy Ray. The officers demanded that Page stop jogging and drop the keys that he was carrying. When Page asked why he was being detained, one of the officers removed a can of mace from his belt. Page then informed the officers that he was going to the University’s campus police station and began running in that direction. The officers followed Page in their patrol car. Upon reaching the campus police station, the officers again confronted Page and demanded that he drop his keys. Page complied and raised his hands to show the officers that he was not carrying any weapons. The officers then sprayed Page in the face with mace, forced him to the ground and handcuffed him. Page was not advised of the reason for their actions until he was taken inside the campus police station.

¶ 3. On December 28, 2001, Page gave notice of his claim as required by the MTCA, Miss.Code Ann. § 11 — 46—11(1) (Rev.2000). The notice was received on January 3, 2002. After failing to receive any response from the University, Page filed his suit on September 16, 2002. The University filed a motion to dismiss the complaint as barred by the statute of limitations. This motion was granted, and a final judgment of dismissal with prejudice was entered by the trial court.

DISCUSSION

¶ 4. We apply a de novo standard when reviewing the granting of a Miss. R. Civ. P. 12(b)(6) motion. Roberts v. New Albany Separate Sch. Dist., 813 So.2d 729, 730 (Miss.2002); Arnona v. Smith, 749 So.2d 63, 65-66 (Miss.1999). As such we sit in the same position as the trial court. Statutory interpretation is also reviewed under the de novo standard, as it is a question of law. Donald v. Amoco Prod. Co., 735 So.2d 161, 165 (Miss.1999).

Miss.Code Ann. § 11-46-11 v. Mississippi Case Law

¶ 5. Present case law interpreting Miss. Code Ann. § 11-46-11 is admittedly ambiguous. In affirming previous holdings of this Court and the Court of Appeals, we held in Williams v. Clay County, 861 So.2d 953 (Miss.2003), that the tolling period was conditional upon how early or how late the claimant served notice upon the agency. Upon reflection, this interpretation is contrary to the literal reading of the statute and the decisions of this Court. See Roberts v. New Albany Separate Sch. Dist., 813 So.2d 729 (Miss.2002). See also Marshall v. Warren County Bd. of Supervisors, 831 So.2d 1211 (Miss.Ct.App.2002). Therefore, our holding in Williams is overruled.

A. Miss.Code Ann. § 11-46-11

¶ 6. Considering the statute in its entirety and affording deference to its literal meaning, parties are first instructed that all actions “shall be commenced within one (1) year next after the date of the tortious, wrongful or otherwise actionable conduct....” Miss.Code Ann. § 11-46-11 (emphasis added). A literal interpretation of this section gives a party the right to at least 365 days to file a lawsuit against a state agency, county, municipality or other political subdivision.

' ¶ 7. The statute next states that the filing of notice is required pursuant to subsection (1). Once a party has filed that notice “this section shall serve to toll the statute of limitations ... from the date the notice is received.... ” Id. (emphasis added). If the action is against a state agency, the statute of limitations will be tolled for 95 days; however, if the action is against a county, municipality or other political subdivision, the statute of limitations will be tolled for 120 days “Toll” is defined as “to suspend or stop temporarily.” Black’s Law Dictionary 488 (6th ed.1990). If an action is stopped temporarily, the action which is stopped is allowed to commence again once the tolling period has ended. Therefore, once notice is received, the one-year statute of limitations is tolled for up to 95 or 120 days, depending upon the agency. After the tolling period has passed, the running of the statute resumes. This Court has previously failed to use the term “tolling” in this way and has incorrectly viewed the 95 or 120 day period as merely a break in the action when nothing may be filed until the State responds to the notice. We will now look to the next sentence of the statute.

¶ 8. “After the tolling period has expired, the claimant shall then have an additional ninety (90) days to file any action....” Miss.Code Ann. § 11-46-11 (emphasis added). This 90 days is in addition to the balance of the 365 days not used as of the date when notice was given.

¶ 9. If a claim is denied, “then the additional ninety (90) days during which the claimant may file an action shall begin to run upon the claimant’s receipt of notice of denial of claim from the governmental entity.” Id. (emphasis added). Once the claim is denied, the tolling period ends immediately, and the additional 90 days is added to the remaining time left in the original one year period not used at the time notice was received. The claimant would not receive the benefit of the full 95 day or 120 day tolling period if the agency denies the claim prior to the expiration of the tolling period.

B. Williams v. Clay County

¶ 10. In Williams, this Court held that the claimant had at a minimum one year to file an action against an agency. This Court reviewed and approved the Court of Appeals’ holding in Marshall v. Warren County Bd. of Supervisors, 831 So.2d 1211 (Miss.Ct.App.2002), that the Legislature, by its 2002 amendment to § 11-46-11, did not intend to shorten the one-year statute of limitations. Marshall, in turn, followed this Court’s holding in Roberts v. New Albany Separate School District, 813 So.2d 729 (Miss.2002), that a claimant was entitled to at minimum 90 days plus one year to file an action against a governmental entity. However, in Williams, this Court stated that the cause of action occurred on November 1, 1999, and notice was given on November 15, 1999:

The 120-day tolling period expired within the one-year statute of limitations. Williams was then entitled to a minimum of 90 days to file an action after the 120-day tolling period, which also expired before the one-year statute of limitations. When November 1, 2000, passed, so did the time for filing Williams’s action.

Williams, 861 So.2d at 960. Therefore, Williams was afforded only one year and not one year plus ninety days as stated in Roberts. The Williams plurality explained its reasoning in a footnote:

The tolling provision allows the claimant up to an additional 120 days to bring suit if notice is given within the final 120 days of the one year limitation period. A claimant has, at a minimum, one year to bring suit. If a claimant files notice 30 days after the injury, and the government denies the claim 30 days later, the claimant still has one year from the date of the injury to bring suit. If a claimant files notice eleven months and twenty-nine days from the date of the injury, the statute is tolled for 120 days for that notice. After the 120-day period, the claimant has 90 days to bring suit. Should the government respond within the 120-day period, the claimant has 90 days to bring suit from the date of the response.

Id. at 960 n. 5 (emphasis added).

¶ 11. According to this footnote, depending on when a claimant files notice, the statute of limitations period will be different. If a claimant files close to the end of the one-year statute of limitations, that claimant receives the benefit of the additional 90 days. If a claimant files notice almost immediately, or such that the 120-day tolling period will expire within the one-year statute of limitations, that claimant does not receive the full benefit of the 90 days because, most likely, the additional 90 days will also expire within the one-year statute of limitations. However, pursuant to Section 11-46-11, a claimant will always have one year plus an additional 90 days to file suit. The filing of the notice and the receipt of that notice by the agency serves to toll the statute for an additional 95 or 120 days unless the claim is denied prior to the expiration of the tolling period.

C. Application of Miss. Code Ann. § 11-46-11(3)

¶ 12. Based on a literal interpretation of the statute, the one-year statute of limitations begins to run on the date the cause of action occurs or accrues. However, we are mindful that, as we have previously stated, the words “occur” and “accrue” are not synonymous. Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1156-57 (Miss. 1992). The statute is tolled for either 95 or 120 days, depending on the agency, from the day notice is received by the agency. Assuming arguendo that there is no response or denial from the agency, the statute will begin running again after the 95 or 120-day period ends. The claimant would then have the balance of the original one year statute not used at the time notice was received to file the suit, as the tolling period merely suspended the running of the statute. In addition to the one-year statute of limitations provided by Section 11-46-11, the claimant has an additional 90 days granted by the statute in which to file suit. If the agency denies the claim, the tolling period ends immediately. The claimant is then left with the remaining days in the original one-year limitations period not used at the time notice was received plus the additional 90 days in which to file suit. The following examples applying the statute to recent cases will provide a much clearer illustration of this application.

1. Roberts

¶ 13. The actionable conduct occurred on August 8, 1998. 813 So.2d at 730. Notice was sent and received on August 3, 1999, 360 days after the action occurred. The statute of limitations should toll for 120 days from August 3, 1999, because the action was against New Albany Middle School; therefore, the tolling period would have ended on December 1, 1999. After the tolling period ended, the claimant had 5 days left in the original one-year statute (365 days minus 360 days), or until December 6, 1999, plus the additional 90 days, to file suit. Thus, the action would have had to have been filed by March 5, 2000 (2000 was a leap year). The claimant filed on December 6, 1999, which was clearly within the statutorily allotted amount of time.

2. Moore

¶ 14. This Court determined that the cause of action accrued on August 31,1998, when the plaintiffs learned through their expert that they had a cause of action against the hospital. 825 So.2d at 667. Notice was received on June 9, 1999, 282 days after the cause of action occurred or accrued. The statute should toll for 120 days because the action was against Memorial Hospital of Gulfport; therefore, the tolling period would have ended on October 7, 1999. After the tolling period ended, the claimant had 83 days left in the original one-year statute (365 days minus 282 days). Adding the additional 90 days to file suit, the action would have had to have been filed by March 28, 2000 (again, 2000 was a leap year). The claimant filed suit on December 16, 1999, which was clearly within the statutorily allotted amount of time.

3. Marshall

¶ 15. The cause of action accrued on July 31, 1999. 831 So.2d at 1212. Notice was received on March 6, 2000, 219 days after the cause of action accrued, causing the 120-day tolling period (against a county) to end on July 4, 2000. After the tolling period ended, the claimant had 146 days left in the original one-year statute (365 days minus 219 days). Adding the additional 90 days to file suit, the action would have had to have been filed by February 25, 2001. Suit was filed on November 2, 2000, which was clearly within the statutorily allotted amount of time.

4. Williams

¶ 16. The actionable conduct occurred on November 1, 1999. 861 So.2d at 960. Notice was received on March 16, 2000, 136 days after the cause of action occurred or accrued, causing the 120-day tolling period (against a county) to end on July 14, 2000. After the tolling period ended, the claimant had 229 days left in the original one-year statute (365 days minus 136 days). Adding the additional 90 days to file suit, the action would have had to have been filed by May 29, 2001. Suit was filed on January 31, 2001, which was clearly within the statutorily allotted amount of time.

5. Page

¶ 17. Here, the actionable conduct occurred on June 26, 2001. Notice was given on December 28, 2001, and received on January 3, 2002, 191 days after the cause of action accrued. Because this claim is against a state agency, the statute was tolled for 95 days, and the tolling period expired on April 8, 2002. After the tolling period ended, the claimant had 174 days left in the original one-year statute (365 days minus 191 days). Adding the additional 90 days to file suit, the action would have had to have been filed by December 28, 2002. Suit was filed on September 16, 2002, which was clearly within the statutorily allotted amount of time.

D. Further Examples

1. Early Notice Given

¶ 18. If the cause of action occurs on January 1, 2003, and notice is received on February 1, 2003 (31 days later), the 120-day tolling period would end on June 1, 2003. However, if the claim is denied on March 1, 2003, the tolling period would end immediately. If the claim is denied by the governmental entity on March 1, 2003, the claimant would have 334 days left in the original one-year statute (365 days minus 31 days). Adding the additional 90 days to file suit, the action would have to be filed by April 28, 2004 (2004 is a leap year).

2. Mid Notice Given

¶ 19. If the cause of action occurs on January 1, 2003, and notice is received on June 1, 2003 (151 days later), the 120-day tolling period would end on September 28, 2003. However, if the claim were denied on July 1, 2003, the tolling period would end immediately. The claimant would have 214 days left in the original one-year statute (365 days minus 151 days). Adding the additional 90 days to file suit, the action would have to be filed by April 30, 2004.

3. Late Notice Given

¶ 20. If the cause of action occurs on January 1, 2003, and notice is received on November 1, 2003 (304 days later), the 120-day tolling period would end on February 29, 2004. However, if the claim were denied on December 1, 2003, the tolling period would end immediately. The claimant would have 61 days left in the original one-year statute (365 days minus 304 days). Adding the additional 90 days to file suit, the action would have to be filed by April 30, 2004.

4. Claim Denied after the Tolling Period Expires

¶ 21. If the cause of action occurs on January 1, 2003, and notice is received on February 1, 2003 (31 days later), the 120-day tolling period would end on June 1, 2003. If the claim were denied later on October 1, 2003, the remaining 334 days in the original one-year statute, would be calculated from June 1, 2003, the date on which the tolling period ended. Therefore, the one-year statute would expire on April 30, 2004. Adding the additional 90 days to file suit, the action would have to be filed by July 29, 2004.

CONCLUSION

¶ 22. While we admittedly have not always been consistent in our application of Section 11-46-11(3), we have without exception held firm to our belief that it was not the intention of the Legislature to shorten the one-year statute of limitations. Additionally, we find that it was the intention of the Legislature to toll the statutory period, meaning to suspend temporarily, and to grant claimants 90 days in addition to the one year in which to file their lawsuits. Our prior cases have been inconsistent in the application of the provisions of Miss.Code Ann. § 11-46-11. Applying this statute as it is written, Steven Page timely filed his lawsuit against the University. As already noted above, Page had until December 28, 2002, in which to commence his suit under the MTCA. Filed on September 16, 2002, Page’s suit was commenced well within the statutorily allotted time. The circuit court erred in concluding otherwise. Therefore, we reverse the trial court’s judgment, and we remand this case for further proceedings consistent with this opinion.

¶23. From our previous case law it should be clear to the Legislature that Miss.Code Ann. § 11^16-11(3) is less than clear. The section concerning “additional 90 days” could be literally interpreted to shorten the one-year statute of limitations. However, this Court, being of the firm belief that this is not the intention of the Legislature, has interpreted that particular section so as to add additional time to the one-year statute of limitations, and not reduce the one-year statute of limitations. We invite the Legislature to consider clarification of this section so as to be conducive to a consistent application by the trial bench and bar and our appellate courts.

¶ 24. REVERSED AND REMANDED.

SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, GRAVES AND DICKINSON, JJ., CONCUR. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

      . Moore ex rel Moore v. Mem’l Hosp. of Gulf-port, 825 So.2d 658 (Miss.2002).

      . These examples assume a claim against a municipality, county or other political subdivision so as to trigger the 120-day tolling period.


author: SOUTHWICK, P.J.,

text:
    Ronnie Shane PALMER, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-00857-COA.
    Court of Appeals of Mississippi.
    March 9, 2004.
    Rehearing Denied May 18, 2004.
    Certiorari Denied July 29, 2004.

      H. Bernard Gautier, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and CHANDLER, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. Ronnie Shane Palmer was found guilty of capital murder by a circuit court jury. He appeals arguing that the conviction was against the overwhelming weight of the evidence, there was error in the testimony of an expert witness, photographs were improperly admitted, and there was error in sentencing instructions. We disagree with all these contentions and affirm.

¶ 2. Nicole Palmer was the forty-one-day-old infant daughter of Deborah and Ronnie Palmer. Deborah Palmer was attending an orientation for a new job. Ronnie Palmer was left to care for Nicole. Mrs. Palmer left their apartment at around 7:00 a.m. and returned home between 12:30 and 1:00 that afternoon. Later that day, she discovered Nicole was not breathing. Nicole was taken to the hospital where she was pronounced dead.

¶ 3. Ronnie Palmer stated that while he was giving his daughter a bath, he dropped her and she struck her head on the side of the tub. He stated that he did not think there was anything wrong with her after this happened. He also stated that he slapped the back of her head as he was trying to stop her crying and make her go to sleep.

¶ 4. At trial, Dr. Paul McGarry testified. He is a forensic pathologist who performed an autopsy on Nicole the day after she died. He determined that her death was caused by a massive recent head injury. He testified that her injury was caused by a very hard slamming of her head against a hard surface. He further stated that this injury could not be caused by Palmer dropping her or slapping her head. The jury found him guilty but could not agree on sentencing. Palmer was sentenced to life without parole by the trial judge. From this, he appeals.

DISCUSSION

1. Expert testimony of Dr. .McGarry

¶ 5. During discovery, Palmer was given the autopsy protocol that Dr. McGarry prepared. Dr. McGarry testified that Nicole’s injury could not have been caused by Palmer’s dropping her. He also testified that Nicole’s head was slammed against a hard object and that the bruises on her face and forehead were caused by fingertips grasping the front of the head and forcing it against another surface. We will discuss the different objections to this testimony that are made on appeal.

A. Discovery

¶ 6. Palmer argues that at trial there was a failure to follow a uniform court rule structuring the procedures for resolving discovery violations. The rule requires that before évidence may be admitted that was not properly disclosed before trial, the objecting party will have an opportunity to examine the evidence. If the party continues to object after the examination, certain other procedures are to be followed. URCCC 9.04. Palmer did not object on the basis of a discovery violation during Dr. McGarry’s testimony. Objections on the grounds asserted on appeal must be made during trial or else the issue is waived. Holland v. State, 587 So.2d 848, 868 (Miss.1991).

¶ 7. There was no error due to discovery procedures in the admission of this testimony.

B. McGarry’s scope of expertise

¶ 8. Palmer argues that Dr. McGarry’s testimony contained statements that were beyond his field of expertise. Specifically, Palmer argues that it was impossible for the doctor to know what caused Nicole’s injuries. Dr. McGarry allegedly did not have the expertise to exclude the possibility that the child had accidentally been dropped. However, a forensic pathologist may give testimony concerning the cause of an injury. Mitch ell v. State, 792 So.2d 192, 215 (Miss.2001). Dr. McGarry testified that the injuries to Nicole were caused because her head was slammed against a hard object. There was physical and photographic evidence presented at trial supporting this opinion. There was no error in allowing Dr. McGar-ry to testify as to how the injuries occurred.

C. Prosecutor’s statements in closing argument

¶ 9. During his closing argument, the prosecutor stated:

And let me tell you something. Dr. McGarry was right. Dr. McGarry is an expert in forensic pathology. Dr. McGarry knows exactly what happened to that child from his investigation. That child was taken by the face and slammed down on something very hard.

While a prosecutor is prohibited from stating his personal opinion as to the veracity of a witness, objections must be made so that the trial judge may take corrective action. Foster v. State, 639 So.2d 1263, 1288-89 (Miss.1994). Palmer made no objection to this statement.

2. Photographs

¶ 10. Palmer next argues that the photographs offered during Dr. McGarry’s testimony should not have been admitted into evidence because of gruesomeness and lack of probative value. Palmer objected at trial and his objection was overruled because the judge determined that the photographs would assist Dr. McGarry in describing Nicole’s injuries.

¶ 11. The admissibility of photographs is within the discretion of the trial judge. Drake v. State, 800 So.2d 508, 516 (Miss.2001). There is broad discretion for admissibility even if the evidence is gruesome. Id. The injuries Nicole suffered were key to this case. The autopsy photographs were used by Dr. McGarry to describe the injuries to the jury. The photographs were relevant and not unduly gruesome. There was no abuse of discretion to allow the photographs.

¶ 12. Palmer also complains that during his cross examination, the prosecutor held up one of the photographs and asked him three times, “Is this your idea of giving your baby a Father’s Day present?” Palmer objected to this line of questioning and moved for a mistrial. The judge sustained the objection and denied the motion for a mistrial. Palmer argues that this use of the photograph inflamed the jury. The photograph, though, had already been admitted into evidence and was reviewable by jurors during the trial and later during deliberations. The prosecutor’s attempt to be dramatic certainly emphasized the photograph, but there was no new prejudice injected into the case that went beyond the relevance of the photograph to fact issues for the jurors’ decision.

S. Aggravating circumstances and jury instructions

¶ 13. Palmer next argues that if we grant him a new trial, he should not stand the risk of the death penalty after receiving a life sentence following his first trial. He argues that the prosecutor stated the law incorrectly as to relevant aggravating circumstances for the jury’s consideration. He also argues that the jury should not have been told to consider if the capital offense was “especially heinous, atrocious, or cruel.”

¶ 14. This issue would arise only if Palmer were to have his conviction reversed. Since we are affirming, what might happen during sentencing after a second trial is academic.

A Weight of the evidence

¶ 15. Palmer argues that the verdict was contrary to the overwhelming weight of the evidence. He argues that he gave a plausible explanation of Nicole’s injuries, that Dr. McGarry’s testimony was pure speculation, and that no reasonable juror could believe that he caused the injury.

¶ 16. The jury heard Palmer’s version of events and decided instead that the State’s account of Nicole’s death was correct. The State’s evidence of child abuse consisted of the fact that Palmer was alone with Nicole, he admitted dropping and slapping her, and during this time she was injured and died from the injuries. Dr. McGarry testified as to what would have been necessary to cause such injuries, directly contradicting Palmer’s version. The jury decides the credibility of witnesses. Kolberg v. State, 829 So.2d 29, 71 (Miss.2002). A verdict of guilty will be upheld unless it was the result of prejudice, bias or fraud, or is against the weight of the evidence. Id. at 40. There were no such infirmities. We affirm.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE WITHOUT THE POSSIBILITY OF PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: SOUTHWICK, P. J.,

text:
    PEARL RIVER VALLEY WATER SUPPLY DISTRICT and Harold Gray, Appellants, v. Bobby BRIDGES, Appellee.
    No. 2002-CA-01425-COA.
    Court of Appeals of Mississippi.
    March 23, 2004.
    Rehearing Denied June 8, 2004.
    Certiorari Denied July 29, 2004.

      Susan Lum Runnels, Jackson, attorney for appellants.
    John Hinton Downey, Jackson, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and GRIFFIS, JJ.
   SOUTHWICK, P. J.,

for the Court.

¶ 1. Harold Gray and the Pearl River Valley Water Supply District were found jointly and severally liable for injuries sustained by Bobby Bridges during an arrest. Gray and the District appeal arguing they are immune from liability. We agree. Consequently, we reverse and render.

¶ 2. Officer Harold Gray was employed by the Pearl River Valley Water Supply District where he was a manager of the Leake County Water Park. He resided at the park and supervised its day-to-day operations and its employees and facilities. Gray patrolled the park and performed all law enforcement duties. Of importance, it is illegal to possess alcohol in Leake County.

¶ 3. This case arises from an arrest that took place on August 30, 1997, at the park’s boat ramp. Officer Gray was riding through the park when he noticed Bobby Bridges’s truck driving down the hill into the park pulling a boat. Two people were in the truck while Bridges and another man were riding in the boat as it was being towed. The officer did not approach the group at that time.

¶ 4. Later, Officer Gray again drove by the ramp and saw that Bridges’s boat was off its trailer, full of water and resting on the concrete boat ramp. The trailer was still attached to the truck. Not wishing to approach the group alone, Officer Gray made an unsuccessful effort to locate another of the District’s managers. He then asked another man to join him, but he refused. Chris Howard, a former Carthage police officer who was camping in the park, agreed to accompany Gray to the boat ramp. They went to the launch and approached the truck and boat. Officer Gray asked if the men had consumed any alcohol. One of the men told him that all of them had two or three drinks early in the day. He stated no one had any alcohol that night. Bridges told Officer Gray that he had not consumed any alcohol. Officer Gray noticed a cooler and beer cans in the bed of the truck. The cooler contained nine beers. Bridges stated that the beer, the cooler and the truck were his.

¶ 5. Officer Gray informed Bridges that he was under arrest. He smelled alcohol on Bridges’s breath. By this time, another officer had arrived at the ramp. Officer Gray took the cooler from Bridges’s truck and brought it to his vehicle. Officer Gray then instructed Bridges to place his hands on the truck, but he refused. Gray informed Bridges that he needed to handcuff him. Bridges had his left hand in his pocket. As Officer Gray reached for his hand, Bridges took his hand out of his pocket and stepped back. Officer Gray grabbed Bridges’s arm and locked it behind Bridges. Bridges resisted, but Officer Gray was able to pin Bridges against the truck. However, the two continued to struggle. Bridges pushed away from the truck with his right hand. Officer Gray again pinned him against the truck. Bridges continued to struggle and Officer Gray applied a wrist lock. Bridges complained that this additional pressure on his wrist hurt him. Officer Gray told Bridges that if he stopped resisting, he would not have to apply the wrist lock.

¶ 6. Officer Gray was able to place Bridges in handcuffs. He took Bridges to the other officer’s truck. At the request of one of Bridges’s relatives, Gray then replaced the handcuffs on Bridges such that his hands were in front rather than behind his back. Bridges would receive a misdemeanor conviction for public drunkenness and resisting arrest. His conviction was not appealed.

¶ 7. On the night of his arrest, Bridges went to the emergency room of the Leake County Hospital after he left the jail. He was diagnosed with a sprained left wrist. Then, on September 2, 1997, he went to Mississippi Baptist Medical Center emergency room where he was again diagnosed with a sprained left arm. A week later Bridges was diagnosed as having an avulsion fracture on the left ulna. On October 10, 1997, Bridges was diagnosed with a torn rotator cuff.

¶ 8. Bridges contended that this arrest and the force used during it was a result of animosity that Officer Gray held towards him. The two had encountered each other on prior occasions. On June 20, 1997, Officer Gray noticed an unregistered person utilizing the park’s shower. The person was Bridges’s teenage grandson. Officer Gray allowed the boy to finish his shower but told him that the facilities were to be used only by those registered in the park. Later that night, Bridges went to Officer Gray’s residence to confront him about the incident with his grandson. After some words between the two, Officer Gray instructed Bridges to leave. Bridges did. The next day, Officer Gray filed a police report and spoke with Reservoir Patrol Chief James Stepp. Officer Gray later filed criminal affidavits against Bridges alleging that Bridges had pulled back his fist as if to strike the officer, and that he had been intoxicated. Bridges was convicted of simple assault. He did not appeal this conviction. A few days after this incident, Kenneth Griffin, the District’s general manager, received an anonymous letter indicating concern about these events.

¶ 9. Bridges sued the District and Officer Gray for injuries that allegedly resulted from excessive force used in his arrest during the boating event. Bridges claimed that the District knew or should have known of Officer Gray’s malicious attitude toward Bridges and failed to take corrective action. The trial court granted judgment for Officer Gray and the District in 1999. The Supreme Court reversed and remanded for reasons that we will explain. Bridges v. Pearl River Valley Water Supply Dist., 793 So.2d 584 (Miss.2001).

¶ 10. On remand, the trial court found the District and Officer Gray jointly and severally liable for an award to Bridges of $64,309.92. From this, the District and Officer Gray appeal.

DISCUSSION

1. Mississippi Tort Claims Act

¶ 11. Bridges claim against Gray and the District was necessarily analyzed under the requirements of the Mississippi Tort Claims Act. The statute acknowledges liability for torts committed by governmental actors, but also provides for immunity in certain situations. Relevant to the present case are separate immunities for law enforcement activities and for discretionary functions:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury;
(d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused....

Miss.Code Ann. § 11 — 46—9(l)(c) & (d) (Rev.2002).

¶ 12. Section 11-46-9(1) contains exemptions lettered from (a) through (x). They are written in the disjunctive, as the next to last section (w) concludes with an “or,” which is then followed by the last immunity provision (x). The immunities vary widely and it would be impossible for all to fit. Applicability of any one of these sections creates immunity. State v. Hinds County Bd. of Supervisors, 635 So.2d 839, 842 (Miss.1994) (“the State cannot be held liable for damages if the conduct falls within one of the exceptions found in Miss. Code Section 11-46-9”) (emphasis added); see generally, Jim Fraiser, “A Review of the Substantive Provisions of the Mississippi Governmental Immunity Act: Employees’ Individual Liability, Exemptions to Waiver of Immunity, Non-Jury Trial, and Limitation of Liability,” 68 Miss. L.J. 703, 743^44 (1999), evaluating the unpublished opinion of Hall v. Miss. Dep’t of Pub. Safety, 708 So.2d 564 (Miss.1998) (table). Hall reached the self-evident conclusion that no defendant needs to satisfy all the exemptions: “the statute is written in the disjunctive which indicates that subsections (l)(c) and (l)(d) should not be read together but should be read as alternatives separate and apart from one another.” Id., 68 Miss. L.J. at 743, quoting Hall, slip op. at 8. Hall is not precedent, but the statutory structure is clear. If either the law enforcement exception or the discretionary function exemption applies, there is immunity.

2. First Bridges Appeal

¶ 13. The Supreme Court in its opinion on the initial appeal in this suit reviewed a grant of summary judgment in favor of the District and a dismissal of Officer Gray on the pleadings. The District had argued in its motion that it was entitled to the law enforcement immunity since at all times Bridges was engaged in criminal conduct. It further argued that the quality of its supervision of Bridges was a matter that fell within its discretion. The trial court agreed with both arguments when it granted summary judgment. As to Officer Gray, the trial court dismissed because it found no dispute that the officer was acting within the course and scope of his employment at all times. Under one section of the Act, no employee so acting “shall be held personally liable for acts or omissions” that allegedly cause harm. Miss.Code Ann. § 11-46-7 (Rev.2002).

¶ 14. The Supreme Court found that since Bridges was involved in criminal conduct at the time of injury as shown by his conviction of a misdemeanor growing out of the incident, the immunity under section 11 — 46—9(l)(c) applied to the District. Bridges, 793 So.2d at 588. Then the Court found that absent malice, Officer Gray also was immune. Id.

¶ 15. However, after reaching this conclusion, the court in an entirely separate section of its opinion discussed the independent immunity provision for discretionary function. Id. at 588-90. To be immune, the court found that the discretionary act must have involved a planning or policy making decision. Id. at 589. The court stated that “the grant of summary judgment to the District on this issue was premature” and remanded to resolve whether the District was engaged in a policy-oriented decision-making process when supervising employees. Id. at 589-90.

¶ 16. Finally, as to Officer Gray, the court interpreted three separate sections of the Tort Claims Act. The trial court had relied on a provision that there was immunity for a governmental employee acting within the scope of his employment. Miss. Code. Ann. § 11-46-7(1) (Rev.2002). However, that same section then states that an employee is outside of his employment when he acts with malice. Miss. Code Ann. § 11-46-7(2) (Rev.2002). A governmental entity is immune when its employee acts with malice. Miss.Code Ann. § 11-46-5(2) (Rev.2002). The issue of Gray’s liability was therefore remanded to the trial court. Bridges, 793 So.2d at 590.

3. Remand Proceedings

¶ 17. As a result of the remand, the circuit court conducted an evidentiary hearing. The court found that both the District and Officer Gray were liable. The court noted the evidence that Bridges had at different times caused trouble for other campers that was “sufficient grounds for his removal from the campground and sufficient ground to bar him from further going on the premises of the park, but, that was not done.” The court found that Bridges’s arrest was unnecessary:

Then the activity was the arrest of a person who apparently was drinking, but was not involved in any accidental incident at that time, and, the question then is was it necessary to take that person into custody!?]

The trial court’s later analysis stated on the record after the hearing makes it evident that his answer was that the arrest was not needed since Bridges was not the driver of the vehicle or the boat. Since the driver of the truck was not intoxicated, there was no need to arrest anyone.

¶ 18. The trial court also found that even if the arrest was reasonable, Officer Gray had used excessive force. The District was found to have failed in its duty to supervise the officer since earlier evidence of problems between Bridges and Gray had come to the District’s attention. The trial court found against the District “for negligent supervision and against Officer Gray for malicious activity in the amount of $64,309.92, plus all costs of Court.” Since there is no earlier reference by the trial judge to “malice,” we infer that he is basing that conclusion on Gray’s making an arrest that was “unnecessary” as opposed to using other measures, and that malice also could be inferred due to earlier incidents between Gray and Bridges.

Jp. Law Enforcement Immunity

¶ 19. We now review the application of the law to the facts presented in this record. Without question, the arrest that was made was lawful. Leake County is a dry county. Bridges without question committed alcohol-related offenses, as he admitted that he had been drinking the day he was arrested and to owning the beer in this truck. Since there was no question that a crime had been committed and Officer Gray had probable cause to believe that to be so, the arrest was completely lawful. Indeed, Bridges was later convicted of crimes that arose from this incident.

¶ 20. The Supreme Court on the initial appeal found that the District was entitled to immunity since Gray had probable cause to arrest and the alleged injuries had a sufficient nexus to that crime. Bridges, 793 So.2d at 588. Depending on what is then made of the Supreme Court’s analysis of the discretionary function issue in its 2001 opinion, the District was immune from liability for injuries that arose as a result of this arrest.

¶ 21. Officer Gray would be liable if his actions were malicious. That is because the employee’s immunity arises from acting on behalf of the governmental entity. Unless the employee is acting within the course and scope of employment, he is not entitled to the limited immunity that falls on the sovereign. Miss.Code. Ann. § 11-46-5(2) (Rev.2002). We now address that issue.

5. Malice

¶ 22. The trial court found that Officer Gray acted with malice when he arrested Bridges. If Officer Gray was malicious when he made the arrest, the District still remains immune:

For the purposes of this chapter an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee’s conduct constituted fraud, malice, libel, slander, defamation or any criminal offense other than traffic violations.

Miss.Code Ann. § 11-46-5(2) (Rev.2002). The issue of malice solely relates to Gray’s liability.

¶ 23. We look now to any evidence of malice on the part of Officer Gray. The trial judge made no fact-finding in his opinion as to what constituted the possible malice. His discussion of a prior incident between Gray and Bridges may imply a basis for malice when Gray made the arrest, but the trial court does not clearly so find. During Bridges’s testimony, the only basis for inferring malice that he states was that he was the only person that Officer Gray questioned about drinking.

¶ 24. Law enforcement officers may have frequent encounters with individuals who are prone to break certain laws. In this case, the trial judge believed that Bridges had a history of actions that could have led to his being barred from using this park. We need not examine for whether such authority exists, but we note that this is the factual context. Such encounters may create ill will between the law enforcement officer and the private citizen. We reject that if a law enforcement officer has had previous altercations within the scope of his duties with a citizen, and without any further evidence that the officer in a later lawful encounter was acting with unusual force or conduct of some other extreme nature, that a finding of malice is justified. Even if we conclude that Officer Gray might not have arrested Bridges if he had been feeling friendlier towards him, the decision on how to exercise proper law enforcement discretion can not become Tort Claims Act “malice” on facts such as these.

¶ 25. In the present case, the undisputed evidence is that Bridges was committing a crime-in Gray’s presence, that the officer sought the assistance of others so that the encounter with Bridges would not be solely by Gray, and that injuries arose in the process of Bridges’s resisting the lawful arrest. Bridges was later convicted for resisting the arrest, and that became final when it was not appealed. There is no allegation of a beating or other brutality, no extreme measures of any sort except for the possibility that Gray used more force than needed in handcuffing Bridges. It is undisputed, though, that Bridges was resisting Gray’s efforts to place the cuffs on his hands.

¶ 26. Whatever might have been Gray’s thoughts, there is nothing in his actions to create liability. In essence, the claim for liability here is that the officer did not prove that he had banished all possible ill feelings towards the person being arrested that may have arisen from earlier incidents. Indeed, the same potential for liability for an officer’s malice would arise simply from actions by an accused contemporaneous with the arrest — after an encounter by an officer for lawful reasons, the suspect may assault the officer or use abusive language. That conduct may then be followed by an arrest for the crime that caused the officer to confront the lawbreaker in the first place. We are not saying that malice can never be shown in such circumstances. We are saying that it is not shown when the only evidence is the fact of the prior encounters between the officer and the law-breaker and that they may have created bad relations between officer and citizen.

¶ 27. True, we must look at the facts of the arrest in light of the background between the participants, but we should not look in such a way as to be blinded by that history. Absent the prior encounters, nothing in the facts in the record about this arrest would have caused Gray to be found to have acted outside the scope of his employment in the basis of malice. We do not find the background to change that conclusion.

¶ 28. We reverse the finding that Gray acted with malice and find that he was immune.

6. Discretionary Function Immunity

¶ 29. We previously noted that the Supreme Court in the initial appeal in this case analyzed the discretionary function immunity even after finding that the district was entitled to immunity under the law enforcement exception. It found that granting of summary judgment “premature” on discretionary function. Bridges, 793 So.2d at 589-90. The court explained why this was still an open issue factually and remanded. Id.

¶ 30. We cannot interpret the Supreme Court’s opinion as having turned the possible inapplicability of the immunity provision on discretionary function into an affirmative source for liability. We have explained that each immunity provision is independent of the others. If the claim arose “out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection,” and the claimant was engaged in criminal activity at the time of injury, then there is immunity even if the act causing the injury does not qualify as discretionary. Miss.Code Ann. § 11-46-9(l)(c) & (d) (Rev.2002).

¶ 31. Though the ruling on discretionary function was “premature,” the Court did not attempt to correlate the effect of that conclusion with its earlier decision that law enforcement immunity definitely applied. There was uncertainty about discretionary function immunity and certainty about the law enforcement immunity. We find no holding in the 2001 opinion that if the discretionary function immunity did not apply, that this canceled the application of the law enforcement immunity. The case needed to be remanded for consideration of Officer Gray’s possible malice, since the trial judge had improperly analyzed the law as to the malice issue. Perhaps it would have been better just to dismiss the District; perhaps that possibility was not mentioned on the initial appeal.

¶ 32. In the absence of a holding in Bridges that both immunities must apply before either does, in light of the clear independence of these separate immunity provisions, and in recognition of our obligation to apply the law as reasonably interpreted in light of statutory language and precedent to the admitted facts in the case, we hold that the District is completely immune from liability because of the applicability of Section 11 — 46—9(l)(e). Gray is immune because no evidence of malice exists and he was at all times relevant to the claim acting within the course and scope of his employment.

¶ 33. Because of these conclusions, we need not review the discretionary function issue.

¶ 34. THE JUDGMENT OF THE LEAKE COUNTY CIRCUIT COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

McMILLIN, C.J., KING, P.J., THOMAS, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. BRIDGES AND LEE, JJ, NOT PARTICIPATING.


author: IRVING, J.,

text:
    Leo Luther DAVIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-01738-COA.
    Court of Appeals of Mississippi.
    March 30, 2004.
    Rehearing Denied June 8, 2004.
    Certiorari Denied July 29, 2004.

      Kay L. Wilkerson, Gulfport, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before McMILLIN, C.J., IRVING and MYERS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Leo Luther Davis was convicted by a jury of the Circuit Court of Harrison County of two counts of sexual battery and sentenced to serve two terms of twenty-five years, running concurrently, in the Mississippi Department of Corrections. Feeling aggrieved by this judgment, Davis appeals and asserts the following issues: (1) whether the trial court erred when it allowed Dr. Matherne to testify about his “fist” technique, (2) whether the trial court erred when it found that the tender years exception was applicable and allowed Lori Ehlers to testify as to statements made by the victim as an exception to the hearsay rule under M.R.E. 803(25), (3) whether the trial court erred when it allowed the testimony of Dr. Matherne as an exception to the hearsay rule under M.R.E. 803(4), (4) whether the trial court erred in not granting his motion for a directed verdict or peremptory instruction, and (5) whether the trial court erred in not granting his motion for new trial.

¶ 2. Ascertaining no error, we affirm.

FACTS

¶ 3. On December 31, 2000, Davis went to the Biloxi home of his deceased best friend, George Stille, who had died on December 5, 2000. After George’s death, the home was occupied by Reiko Stille, George’s mother; Sabrina Stille, George’s wife; and his three children. One of George’s children was a nine-year-old girl named A.H.

¶ 4. Davis, George’s wife, and others were celebrating New Year’s Eve. A.H. was in bed in her bedroom that evening. Davis came into A.H.’s bedroom, felt her forehead, cheeks, neck, and chest. He then left A.H.’s room but returned shortly thereafter. He pulled down A.H.’s bed covers, pulled up her shirt, and pulled down her panties. He touched A.H.’s vagina, inserted his finger into it, and told her that she was beautiful. He then withdrew his finger and began licking her vagina. After a couple of minutes, he got up and walked back into the television room. A.H. got up, went to the restroom, and washed herself.

¶ 5. On June 18, 2001, a Harrison County grand jury indicted Davis on two counts of sexual battery against a child under the age of fourteen years. On March 5, 2002, a three-day trial began which ended in a mistrial after jurors were unable to reach a unanimous verdict. A second trial was conducted on August 14-15, 2002, where Davis was convicted of both counts and sentenced to two terms of twenty-five years to run concurrently. Davis soon after filed a motion for a new trial- which was denied by the trial court. Other pertinent facts will be related during the discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Admission of Dr. Matheme’s Expert Testimony

¶ 6. Admission or exclusion of expert testimony is controlled by the trial judge’s discretion, and an appellate court will not disturb that decision unless the trial court clearly abused that discretion. Sheffield v. Goodwin, 740 So.2d 854, 856(¶ 6) (Miss.1999). However, the discretion of the trial judge must be exercised within the boundaries of the Mississippi Rules of Evidence. Johnston v. State, 567 So.2d 237, 238 (Miss.1990).

¶ 7. Since this issue, as well as issue three, concerns Dr. Matherne’s testimony, we combine the two issues for discussion. First, Davis argues that the trial court abused its discretion when it allowed Dr. Matherne, a clinical psychologist, to testify regarding a “fist technique” which he employs young children, who are suspected of having been sexually abused, to use to help demonstrate what occurred during the incidents of sexual abuse. According to Davis, this testimony went beyond the necessary information gathering for medical treatment. He argues that this “fist technique” is scientific evidence and, as such, subject to the admissibility requirements of Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

¶ 8. The State asserts that Dr. Math-erne’s description of the “fist technique” was only used in his effort to discover how deeply A.H. was penetrated. Moreover, the State contends that Dr. Matherne’s testimony concerning the “fist technique” was more accurately a lay opinion and admissible under Rule 701 of the Mississippi Rules of Evidence. In its assessment of the expert testimony offered by Dr. Matherne, the trial court found that he would be testifying to the “fist technique” as a method of information gathering.

¶ 9. We do not find Frye applicable in the resolution of this issue. The Frye standard deals with the qualification criteria for allowing one to testify as an expert witness. See Mississippi Transp. Com’n v. McLemore, 863 So.2d 31 (Miss.2003). Here, Davis does not complain about Dr. Matherne’s qualifications as an expert witness; rather, he asserts, without explaining, that the “fist technique,” which in reality is nothing more than a hand demonstration, is scientific evidence which must be filtered through the criteria for expert testimony.

¶ 10. We agree with the trial court that the “fist technique” referred to by Dr. Matherne was only a form of information gathering. In his testimony, Dr. Matherne testified that the “fist technique” is a demonstration in which he asks a child to make a fist with one hand, to assume that the fist represents her private area, and to use a finger of the other hand to demonstrate what type of contact was made to her private area. He explained that he uses this procedure to assist in making a determination as to whether a physical examination of the child will be of any benefit. He testified that it was important to know whether digital penetration occurred and, if so, how deeply. He further explained that if the penetration was slight, a physical examination would not necessarily detect any trauma. We find nothing improper with the trial judge’s decision to allow this testimony. This issue is without merit.

¶ 11. Secondly, Davis argues that the circuit court erred in allowing Dr. Matherne to testify to statements made to him by A.H. Davis explains that the totality of the information obtained by Dr. Matherne from A.H. was very limited and not the type which a reasonable physician would rely upon. Davis further argues that Dr. Matherne did not conduct a physical examination of A.H.

¶ 12. The trial court allowed Dr. Matherne to testify to statements that A.H. made to him during a psychological evaluation that he conducted on the child. The court allowed the testimony pursuant to Rule 803(4) of the Mississippi Rules Evidence which provides that statements made for purposes of medical diagnosis or treatment are not excluded by the hearsay rule “if the court, in its discretion, affirmatively finds that the proffered statements were made under circumstances substantially indicating their trustworthiness.” M.R.E. 803(4). Before admitting evidence pursuant to M.R.E. 803(4), a two-part test must be met: “the declarant’s motive in making the statement must be consistent with the purposes of promoting treatment, and ... the content of the statement must be such as is reasonably relied on by a physician in treatment.” Doe v. Doe, 644 So.2d 1199, 1205-06 (Miss.1994).

¶ 13. We find that the trial court did not err in admitting Dr. Matherne’s testimony pursuant to Rule 803(4). Dr. Math-erne testified that he conducted a one-on-one psychological evaluation of A.H. in his office on February 5, 2001. He explained that he asked A.H. a series of non-leading questions to determine whether she had been the victim of any child abuse. Dr. Matherne testified that, during the evaluation, A.H. told him that Leo touched her on or around her vaginal area and licked her in the same area.

¶ 14. Statements made by a child sexual abuse victim concerning the acts of sexual abuse, along with the identity of the perpetrator, are reasonably pertinent to treatment and are reasonably relied upon by physicians in diagnosis and treatment.” See Id. at 1206. Here, Dr. Matherne’s testimony concerned matters consistent with the purposes of promoting treatment of A.H. Moreover, the content of A.H.’s statement is the type of information that is reasonably relied upon by a physician in treatment. We therefore find no merit in Davis’s arguments.

2. Testimony pursuant to the Tender Years Exception

¶ 15. Davis next argues that the trial court was in error when it determined that A.H. was a child of “tender years” and that the statement which she gave to Lori Ehlers, her school counselor, had substantial indicia of reliability. According to Davis, he sufficiently rebutted the presumption, without opposition from the State, that A.H. was a child of tender years. He furthers asserts that the statement made by A.H. to Lori Ehlers was contradicted by A.H.’s statement to Dr. Matherne and by the testimony of A.H. herself. He therefore concludes that Ehl-ers’s hearsay statement was not admissible.

¶ 16. The State rebuts that Amanda was nine years old when she made the statement to Lori Ehlers; therefore, there was a presumption that she was of tender years. The State concludes that the trial court applied the correct legal standard and did not abuse its discretion.

¶ 17. Rule 803(25) of the Mississippi Rules of Evidence states:

Tender Years Exception. A statement made by a child of tender years describing any act of sexual contact performed with or on the child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness: provided, that when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

¶ 18. Our supreme court has ruled that there is a rebuttable presumption that a child under the age of twelve is of tender years. Veasley v. State, 735 So.2d 432, 436(1116) (Miss.1999). The relevant time to determine whether the tender years exception to the hearsay rule applies is the age of the child at the time the relevant statement was made rather than the age of the child at the time that testimony is given at trial. Marshall v. State, 812 So.2d 1068, 1075(¶ 20) (Miss.App.Ct.2001); McGowan v. State, 742 So.2d 1183, 1186(¶ 17) (Miss.App.Ct.1999).

¶ 19. The evidence demonstrates that A.H. was nine years old when she made the statement to Ehlers concerning her sexual abuse. Therefore, there existed a rebuttable presumption that A.H. was a child of tender years. Although Davis acknowledges that the trial court determined A.H. was competent to testify and was “very bright and articulate,” Davis fails to demonstrate how he has rebutted the tender years exception.

¶ 20. Secondly, in his argument that A.H.’s statement to Ehlers lacked a substantial indicia of reliability, Davis misinterprets “reliability.” Instead of pertaining to the statement’s contradiction to other evidence, which will ultimately be considered by the fact finder, the reliability of the statement is determined by the surrounding circumstances in which the statement was given. Some of these factors have been listed in the comment to Rule 803(25).

¶ 21. Ehlers explained that she held a private counseling session with A.H. on January 30, 2001. She testified that A.H. shared with her an incident that A.H. experienced around Christmas in 2000. Ehl-ers testified that Ehlers believed that she was the first person that A.H. had told about the incident. Ehlers affirmed that she never suggested to A.H. what information to relate.

¶ 22'. We find that the circuit court did not err in its admission of Ehlers’s testimony concerning statements made to her by A.H. We see nothing in the record which suggests that Davis presented sufficient evidence to rebut the presumption that A.H. was of tender years. The fact that A.H. may have given contradictory testimony does not in the least prove that A.H. was not of tender years at the time the incidents occurred. Further, we find nothing in the record which suggests that A.H.’s statements to Ehler were made under circumstances warranting a finding that they lacked substantial indicia of reliability. Therefore, we do not find that the circuit erred in finding that A.H.’s statement to Ehler possessed a substantial indi-cia of reliability. We reject as meritless Davis’s contention on this issue.

3. Sufficiency of the Evidence

¶23. Davis argues that the trial court was in error when it denied his motions for a directed verdict and his request for a peremptory instruction, as insufficient evidence existed upon which reasonable jurors could have returned a guilty verdict as to either charge of sexual battery. The State counters that the evidence was sufficient to support each element of the two charges of sexual battery.

¶24. In Jefferson v. State, 818 So.2d 1099, 1110-11 (Miss.2002), our supreme court held that the standard of review for denials of motions for a directed verdict, judgment notwithstanding the verdict and a request for a peremptory instruction is the same. Each of these motions challenges the legal sufficiency of the evidence presented at trial. Id. “Since each requires consideration of the evidence before the court when made, this Court properly reviews the ruling on the last occasion that the challenge was made in the trial court.” McClain v. State, 625 So.2d 774, 778 (Miss. 1993) (citing Wetz v. State, 503 So.2d 803, 807-08 (Miss.1987)).

¶ 25. A person is guilty of sexual battery if he or she engages in sexual penetration with a child under the age of fourteen years of age if the person is twenty-four or more months older than the child. Miss.Code Ann. § 97-3-95 (Rev. 2000). “Sexual penetration” includes cunnilingus, fellation, buggery or pederasty, as well as, any penetration of the genital or anal openings of another person’s body by any part of a person’s body. Miss.Code Ann. § 97-3-97 (Rev.2000).

¶26. A.H. testified that Davis came into her bedroom and felt her forehead, cheek, neck, and chest. She explained that he left the room and soon after returned. A.H. further testified that Davis pulled down her panties, started touching her private with his fingers, and thereafter, pushed his finger inside of her. She explained that after a couple of minutes, Davis began to' lick her on her vagina.

¶27. Ehlers, A.H.’s school counselor, testified that she conducted a counseling session with A.H. after receiving a referral from a school nurse. Ehlers explained that, during a discussion with A.H. about conversations A.H. was having with A.H.’s sister, A.H. asked her about sex. Ehlers testified that A.H. told her that, shortly before or around Christmas time in December 2000, Davis came into her bedroom, rubbed her forehead, pulled down her pants, and licked her private parts.

¶ 28. Dr. Matherne testified that, during his psychological evaluation of A.H. on February 5, 2001, she shared that Davis had touched her in an uncomfortable way. According to Matherne, A.H. stated that Davis came in her bedroom in December 2000, touched her forehead, took off her panties, touched her on or around her vaginal area, and licked her on her private parts. Dr. Matherne also testified that he showed A.H. an anatomical drawing and asked her to show him where she had been touched. He explained that she marked the vaginal area in the drawing. Finally, Dr. Matherne testified that he asked A.H. to demonstrate with her index finger and fist how Davis touched her. He stated that A.H. penetrated her fist with the index finger of her other hand and rubbed it around in her fist. He stated that, based on A.H.’s demonstration, it was his opinion that there had been penetration of the vagina, but that there would be no physical evidence of damage done to the hymen because of the slight depth of the penetration.

¶ 29. Davis concedes that “the unsupported word of the victim of a sex crime is sufficient to support a guilty verdict where the testimony is not discredited or contradicted by other credible evidence, especially if the conduct of the victim is consistent with the conduct of one who has been victimized by a sex crime.” Cross v. State, 759 So.2d 354, 356(¶ 11) (Miss.1999). Here, we have not only the testimony of A.H. to prove Davis’s guilt but the testimony of both Ehlers and Matherne who corroborated A.H.’s testimony. Consequently, we find the evidence more than sufficient to support Davis’s conviction of the two counts of sexual battery.

¶ 30. The fact that the testimony of A.H., Ehlers, and Dr. Matherne may have differed in some respects does not mean that the State’s evidence was deficient, for in a criminal prosecution, it is the jury’s function, after hearing all the evidence and receiving the applicable law and instructions, to accept the testimony of some witnesses and reject that of others, as well as to accept in part and reject in part the evidence on behalf of the state or on behalf of the accused. Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980). In other words, the credibility of witnesses is not for the reviewing court. Id. Based on the evidence presented, we are satisfied that the jury, after sorting through the evidence, was justified in returning the verdict it did. We are therefore not at liberty to disturb its verdict, for reasonable and fair-minded persons could certainly find Davis guilty on this evidence.

A Neiv Trial

¶ 31. Davis finally argues that the trial court committed error when it denied his motion for a new trial. The State rebuts that its evidence supported the verdict and that the verdict was not against the overwhelming weight of the evidence.

¶ 32. A motion for new trial challenges the weight of the evidence and implicates the discretion of the trial court in denying the motion. A reversal is warranted only if the trial court abused its discretion in denying the motion. Edwards v. State, 800 So.2d 454, 464-65(¶ 25) (Miss.2001) (citing Sheffield v. State, 749 So.2d 123, 127(¶ 16) (Miss.1999)). “[An appellate court] accepts as true the evidence which supports the verdict and gives the benefit of all favorable inferences that may be drawn from the evidence to the prosecution.” Jefferson 818 So.2d at 1112(¶ 34) (Miss.2002) (citing Edwards, 800 So .2d at 465). The appellate court will not order a new trial “unless the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an ‘unconscionable injustice.’ ” McDowell v. State, 813 So.2d 694, 699-700(¶ 20) (Miss.2002).

¶ 33. Considering the evidence previously described in this opinion, we are not persuaded that .the verdict is so contrary to the overwhelming weight of the evidence that allowing it to stand would sanction an unconscionable injustice. Consequently, we affirm the trial judge’s denial of Davis’s motion for a new trial.

¶ 34. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF TWO COUNTS OF SEXUAL BATTERY AND SENTENCE OF TWENTY-FIVE YEARS ON EACH IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE SENTENCES TO RUN CONCURRENTLY, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.

      . Some factors that the court should examine to determine if there is sufficient indicia of reliability are (1) whether there is an apparent motive on declarant’s part to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; (5) the timing of the declarations; (6) the relationship between the declarant and the witness; (7) the possibility of the declar-ant’s faulty recollection is remote; (8) certainty that the statements were made; (9) the credibility of the person testifying about the statements; (10) the age or maturity of the declarant; (11) whether suggestive techniques were used in eliciting the statement; and (12) whether the declarant’s age, knowledge, and experience make it unlikely that the declarant fabricated.


author: LEE, J.,

text:
    William F. MUIRHEAD and Ruby Faye Muirhead, Appellants, v. Tracy VAUGHN, Brad Vaughn and Bowman Timber Co., Inc., Appellees.
    No. 2002-CA-02034-COA.
    Court of Appeals of Mississippi.
    May 4, 2004.
    Certiorari Denied July 29, 2004.

      David Michael Brisolara, attorney for appellants.
    Ronald Stephen Wright, Kevin Ray Null, Ackerman, attorneys for appellees.
   MODIFIED OPINION ON MOTION FOR REHEARING

LEE, J.,

for the Court.

¶ 1. The Appellees’ motion for rehearing is denied. The original opinion is withdrawn, and this opinion is substituted.

PROCEDURAL HISTORY AND FACTS

¶ 2. Appellants William and Ruby Muir-head filed a complaint in the Choctaw County Chancery Court seeking confirmation of title to land and damages for trees they claimed had been cut without their permission. Appellees Tracy and Brad Vaughn had granted co-appellee, Bowman Timber Company, a warranty deed in September 2000, and pursuant to that transfer, Bowman Timber cut trees from land the Muirheads claim belonged to them. Brad Vaughn testified that he had flagged the property. William Muirhead testified that the property had been flagged, but he did not know by whom. However, Mr. Muirhead also testified that, after the timber had been cut down, he reflagged the property, but those flags were later removed.

¶3. In their complaint, the Muirheads claimed they presented a 1919 deed to the Vaughns which proved that the supposed grantors of the land to the Vaughns never owned the property; thus, title never passed to the Vaughns. The Muirheads asked for damages pursuant to Mississippi Code Annotated § 95-5-10(Rev.l994), which allows payment for trees cut, plus attorney’s fees and expert fees at the court’s discretion; and asked the chancellor to remove cloud on the title and to quiet title in them.

¶ 4. The Vaughns answered and also filed a counter-complaint alleging their ownership in the disputed property. Bowman Timber cross-claimed against the Vaughns seeking to be indemnified by the Vaughns in the event ownership of the property was found to be in the Muirheads and damages were awarded. Bowman Timber claimed the Vaughns were solely responsible for damages because Bowman Timber relied on the warranty deed from the Vaughns when they cut the timber from the disputed land.

¶5. The Muirheads filed a motion to dismiss the Vaughns’s counter-complaint, which the chancellor granted. Bowman Timber and the Vaughns each filed motions to dismiss the Muirheads’s complaint, and the chancellor granted the motions to the extent that the Muirheads were given thirty days to make their complaint comply with Mississippi Code Annotated § 11-17-35 (1972) to show deraignment of title or face dismissal without prejudice. The Muirheads filed an amended complaint thereafter within the specified time.

¶ 6. As explained in his opinion, the chancellor reviewed documents and testimony and determined that the Muirheads were the proper owners of the .2 acre parcel of land in dispute. Concerning alleged damages, the chancellor referred to Mississippi Code Annotated § 95-5-10(l)(Rev.l994) and found that although trees had indeed been cut from the Muir-heads’s property without their permission, the Muirheads failed to present evidence as to the fair market value of the trees or the costs of reforestation. The chancellor concluded that the trees were all so small that they had no market value; thus, damages were not warranted. The chancellor addressed section (2) of the statute which provides for enhanced or punitive damages if the cutting was done willfully or in reckless disregard for the rights of the owner of such trees. The chancellor found no evidence to suggest that the Vaughns or Bowman Timber knew that the Muirheads claimed the land before the timber was cut; thus, the chancellor declined to award damages pursuant to this section. The chancellor finally addressed section (3) of the statute which provides for recovery of expert witness fees and attorney’s fees at the court’s discretion. The chancellor declined to make such award, finding that since the Muirheads failed to show entitlement to recovery under sections (1) and (2) of the statute, recovery under section (3) would not be appropriate. The chancellor assessed court costs to the defendants equally.

¶ 7. The Muirheads filed a motion to reconsider the chancellor’s failure to award damages, but the chancellor denied the motion. The Muirheads now appeal to this Court arguing the chancellor erred in failing to award damages. As explained herein, we find the chancellor erred, and we reverse and remand for reconsideration of damages and attorney’s fees.

DISCUSSION

¶ 8. With their sole issue on appeal, the Muirheads contest the chancellor’s ruling wherein he declined to award damages pursuant to Mississippi Code Annotated § 95-5-10. We look to our familiar standard of review:

The findings of a chancellor will not be disturbed or set aside on appeal unless the decision of the trial court is manifestly wrong and not supported by substantial credible evidence or unless an erroneous legal standard was applied. Where there is substantial evidence to support the chancellor’s findings, this Court is without the authority to disturb his conclusions, although this Court might have found otherwise as an original matter.

Memphis Hardwood Flooring Co. v. Daniel, 771 So.2d 924(¶ 18) (Miss.2000) (citations omitted).

¶ 9. At the outset, we cite the statute at issue in toto:

(1) If any person shall cut down, deaden, destroy or take away any tree without the consent of the owner of such tree, such person shall pay to the owner of such tree a sum equal to double the fair market value of the tree cut down, deadened, destroyed or taken away, together with the reasonable cost of reforestation, which cost shall not exceed Two Hundred Fifty Dollars ($250.00) per acre. The liability for the damages established in this subsection shall be absolute and unconditional and the fact that a person cut down, deadened, destroyed or took away any tree in good faith or by honest mistake shall not be an exception or defense to liability. To establish a right of the owner prima facie to recover under the provisions of this subsection, the owner shall only be required to show that such timber belonged to such owner, and that such timber was cut down, deadened, destroyed or taken away by the defendant, his agents or employees, without the consent of such owner. The remedy provided for in this section shall be the exclusive remedy for the cutting down, deadening, destroying or taking away of trees and shall be in lieu of any other compensatory, punitive or exemplary damages for the cutting down, deadening, destroying or taking away of trees but shall not limit actions or awards for other damages caused by a person.
(2) If the cutting down, deadening, destruction or taking away of a tree without the consent of the owner of such tree be done willfully, or in reckless disregard for the rights of the owner of such tree, then in addition to the damages provided for in subsection (1) of this section, the person cutting down, deadening, destroying or taking away such tree shall pay to the owner as a penalty Fifty-five Dollars ($55.00) for every tree so cut down, deadened, destroyed or taken away if such tree is seven (7) inches or more in diameter at a height of eighteen (18) inches above ground level, or Ten Dollars ($10.00) for every such tree so cut down, deadened, destroyed or taken away if such tree is less than seven (7) inches in diameter at a height of eighteen (18) inches above ground level, as established by a preponderance of the evidence. To establish the right of the owner prima facie, to recover under the provisions of this subsection, it shall be required of the owner to show that the defendant or his agents or employees, acting under the command or consent of their principal, willfully and knowingly, in conscious disregard for the rights of the owner, cut down, deadened, destroyed or took away such trees.
(3) All reasonable expert witness fees and attorney’s fees shall be assessed as court costs in the discretion of the court.

Miss.Code Ann. § 95-5-10(Rev.l994). The Muirheads refer us to Miller v. Pannell, 815 So.2d 1117 (Miss.2002), which they claim supports their argument for entitlement to damages.

¶ 10. In Miller, the Pannells sued Miller and a sawmill company claiming the Pannells cut trees on 2.7 acres of Miller’s property without permission. Miller, 815 So.2d at (¶ 1). The chancellor agreed and also found that the defendants’ negligence was so gross, indifferent and lacking in good faith that it rose to the level of willfulness; thus, he awarded $14,908.63 in damages under the authority of Mississippi Code Annotated § 95-5-10(2) (Rev.1994). Miller, 815 So.2d at (¶ 1). On appeal, the supreme court affirmed, noting that the Millers never used a legal description of the land to mark the property lines, nor did they take adequate measures to ensure they were not cutting timber on the Pan-nells’s land. Id at (¶ 17). Miller’s testimony that he gave the cutters a legal description of the land is contradicted by Tommy Biffle, one of the sawmill’s timber cutters. Id The court found this contradiction insinuated reckless disregard on Miller’s part. Id The court also found that Biffle demonstrated reckless disregard by not asking for a survey, or at least a legal description of the land when it became apparent that Miller was not certain of the location of his western property line. Id The court concluded its opinion by saying, “While the award of damages in this case is the harshest allowed by law, we find that the award is warranted.” Id at (¶ 18).

¶ 11. The Muirheads claim that the present circumstances are much more egregious than in Miller where the court applied the harshest penalties; thus, the Muirheads are entitled to damages. As discussed later in this opinion, we reverse the chancellor for declining to award damages; however, we disagree with the Muirheads that the present case is more egregious than Miller. In Miller, the defendants did not bother even to use a legal description, rather, they took on the attitude of “the heck with them (the Pan-nells), we are going to start cutting, and when they holler we will stop,” as found by the trial judge. Id at (¶ 6). In Miller, a timber-cutting expert also testified that the usual practice is, where there are no physical landmarks such as a fence to indicate where the property lines are, the timber cutter should strongly recommend a survey. Id. at (¶ 5). The expert further stated that most people in this field could come within ten feet of the property line by using a hand compass and a legal description, such as one found on a deed. Id. Considering all of this evidence, the chancellor found the defendants so gross and indifferent, lacking in good faith, that their actions were willful, thus deserving full statutory penalties. Id. at (¶ 6).

¶ 12. As stated at the outset, we will not overturn a chancellor unless he was manifestly wrong, his decision was not supported by substantial credible evidence or unless he applied an erroneous legal standard. Memphis Hardwood Flooring Co., 771 So.2d at (¶ 18). First, concerning section (1) of the statute, the statute states that if any person cuts down another’s tree without permission, he must pay the owner of the tree double the fair market value of the tree cut down, plus reasonable cost of reforestation, not to exceed Two Hundred Fifty Dollars ($250) per acre. Miss.Code Ann. § 95-5-10(1) (Rev.1994). Further, “good faith” or “honest mistake” is not a defense to liability. Id. According to the statute, the only burden on the owner is to show that he owned the timber and that the timber was cut down without his consent. Id. The statute does not require that the owner produce evidence of market value or reforestation costs. The chancellor based his decision on this misinterpretation of the statute, and we find reversible error.

¶ 13. Although the Muirheads’s attorney was lacking in presenting evidence concerning damages, we find that once the chancellor was presented clear evidence that Muirhead owned the property and that the trees had been cut without his consent, the chancellor was obliged under the circumstances to award damages in some form. In Chevron Oil Co. v. Snellgrove, 253 Miss. 356, 175 So.2d 471 (1965), the supreme court addressed a trespass action that involved damage to trees. Having found liability, the court declared, “It is a principle of universal application that every trespass gives the landowner a right to at least nominal damages. However, in order to recover more than nominal damages, actual damages must be shown.” Id. at 364, 175 So.2d at 474. Mr. Muirhead produced photographs of his land that had been clear-cut without his permission which clearly showed actual damage to his land. Additionally, Mr. Muirhead testified that he examined all the stumps left on his property and measured forty-four trees over seven inches in diameter and one-hundred seventy-two trees under seven inches. Pursuant to Mississippi Code Annotated § 95-5-10(1), the owner of land whose trees have been cut without his permission is entitled to a sum, “equal to double the fair market value of the tree cut down, deadened, destroyed or taken away, together with the reasonable cost of reforestation, which cost shall not exceed Two Hundred Fifty Dollars ($250.00) per acre ... liability for damages is ‘absolute and unconditional.’ ” Section (2) of this statute provides the chancellor with a “high end” parameter to consider in the way of a damage award. This section permits fifty-five dollars for every tree cut down that is seven inches or more in diameter and eighteen inches tall or ten dollars for every tree cut down that is less than seven inches in diameter and eighteen inches tall.

¶ 14. Considering the evidence the chancellor had before him which shows the Muirheads’s land was cleared without their permission, and then considering Mr. Muirhead’s count of damaged trees and caselaw and statutory authority mandating some damage award ranging from the two-hundred fifty dollars per acre to the higher punitive amounts listed in section (2), we find the chancellor erred in failing to award damages when guidelines were available for him to make an award; thus, we reverse and remand with instructions that the chancellor award damages to the Muirheads as they have met their burden of proving entitlement to the same.

¶ 15. Concerning sections (2) and (3) of the statute which allow for punitive damages and attorney’s fees or expert fees in the court’s discretion, we direct that the chancellor reconsider these sections in light of our reversal.

¶ 16. THE JUDGMENT OF THE CHOCTAW COUNTY CHANCERY COURT IS REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., THOMAS, IRVING, MYERS AND GRIFFIS, JJ., CONCUR. CHANDLER, J., NOT PARTICIPATING.