author: BRIDGES, J., for the Court.

text:
    Roosevelt ARMSTEAD, a/k/a Roosevelt Dexter Armstead, a/k/a Dexter Armstead, a/k/a “Cool”, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00402-COA.
    Court of Appeals of Mississippi.
    Feb. 3, 2004.
    Rehearing Denied April 13, 2004.

      Roosevelt Armstead, Sr., Appellant, pro se.
    William R. Labarre, Hollandale, Johnnie E. Walls, Greenville, attorneys for appellant.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
    Before KING, P.J., BRIDGES, LEE and CHANDLER, JJ.
   BRIDGES, J., for the Court.

¶ 1. Roosevelt Armstead was indicted by the grand jury of the Circuit Court of Washington County and charged with robbery of Danielle Bew and as an habitual offender under Mississippi Code sections 97-3-73 and 99-19-83 respectively. In a jury trial presided over by Circuit Judge W. Ashley Hines, on February 6, 2002, Armstead was found guilty and sentenced to life in prison. His motion for judgment notwithstanding the jury verdict or, in the alternative, for a new trial was timely filed and denied. Armstead appeals on the following issues:

STATEMENT OF THE ISSUES
I. WAS THE EVIDENCE PRESENTED INSUFFICIENT TO SUSTAIN ARMSTEAD’S CONVICTION?
II. DID THE STATE FAIL TO PROVE THE ESSENTIAL ELEMENTS OF ROBBERY?
III. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN DENYING ARMSTEAD HIS RIGHT TO PARTICIPATE IN JURY SELECTION?
IV. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY COMMENTING IN FRONT OF THE JURY AND BY ALLOWING THE PROSECUTOR TO COMMENT IN FRONT OF THE JURY ABOUT ARM-STEAD’S DECISION NOT TO TESTIFY?
V. DID DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN PUTTING UP NO DEFENSE DURING CLOSING ARGUMENT?
VI. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN OVERRULING ARMSTEAD’S OBJECTION TO THE STATE’S DISCOVERY VIOLATION?

FACTS

¶ 2. One Friday night Patrolman Williams of the Greenville Police Department was dispatched to a complaint of robbery from the Exxon gas station on the corner of Alexander Street and Dr. Martin Luther King Drive. Upon arriving in the area, he began looking for a black man wearing dark clothing, a hat and a red jacket but was unable to locate anyone. Danielle Bew was the clerk who reported the incident and gave the description. Once Williams went into the store to meet with Ms. Bew, he reviewed the surveillance tape showing the robbery but was unable to identify the suspect.

¶3. In Ms. Bew’s testimony regarding the robbery, she claims that on that night at approximately nine o’clock she came out of the cooler to find a man standing at the counter trying to open the cash register. When he saw her he told her to “come and open it now; he wasn’t playing, and [to] come and open it now before he killed [her].” She was terrified that he would harm her so she went to the register, opened it and the suspect took the money and left the store. She stated that she was in very close proximity to him as she opened the register and actually looked at him as he was getting the money out and leaving the store.

¶ 4. Detective Crockett also reviewed the tape, interviewed Ms. Bew and dusted for fingerprints, including inside the cash register. The next day Ms. Bew went to the police station and looked through a book of pictures and selected some pictures that she said could possibly be of the suspect. Mr. Armstead’s picture was one of the ones she selected but in the photo he was younger and more clean cut. The police retrieved more current photos of Armstead and the other potential suspects she selected. When she saw a more current photo of Armstead, she identified him as the man who robbed the store without hesitation.

¶ 5. Ms. Bew claims she recognized Mr. Armstead again when he came in the store a few days after the robbery prior to her photo identification. That visit he asked to use the restroom. After he left, she pressed the panic button and when Patrolman Williams arrived she told him the man who robbed her had come back into the store.

ANALYSIS

¶ 6. The State in its brief addresses the issue of the supreme court’s allowing Arm-stead to file a pro se ancillary brief to amend the prior brief filed by his attorney. In their objection the State practically copied the entire opinion of Johnson v. State, 449 So.2d 225 (Miss.1984), into its brief. In Johnson, the court held that someone represented by an attorney should rely on his attorney to raise all credible issues for appeal. Id. Since there was no constitutional duty to allow these ancillary briefs, the court chose not to grant them to prevent the court from “wad[ing] off into a swamp of pro se ancillary briefs,” and to prevent attorneys general from having to respond to myriad of issues “dreamed up by an incarcerated individual.” Id.

¶7. In the case at bar the Supreme Court of Mississippi allowed Armstead’s pro se brief. This Court cannot reverse or alter the decisions handed down in its motions and orders. We merely make note of the attorney general’s objection.

I. WAS THE EVIDENCE PRESENTED INSUFFICIENT TO SUSTAIN ARMSTEAD’S CONVICTION?

¶ 8. The court’s authority to alter a jury’s verdict is limited. Naylor v. State, 780 So.2d 561, 565(¶ 25)(Miss.1999). On appeal appellate courts review all evidence “in the light most consistent with the verdict” and give the “prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Id. It is the responsibility of the jury to resolve conflicting evidence and determine the credibility of witnesses. Harris v. State, 527 So.2d 647, 649 (Miss.1988). If after this review it is determined that no reasonable man could have found beyond a reasonable doubt that the defendant was guilty the conviction will be reversed. Naylor, 730 So.2d at 565. However, if after review it is determined that reasonable minds could have reached differing conclusions in light of the reasonable doubt burden then the conviction cannot be disturbed. Id.

¶ 9. Armstead charges that the State depended on the photo lineup from which Ms. Dew picked his photo and her in-court identification of him for its conviction of him. He points to her testimony that while looking at the photos at the police station she was primarily looking for facial hair on the individuals but that in the photo she selected of Mr. Armstead he was clean shaven. Another problem Arm-stead has with the second group of photos Ms. Dew reviewed was that each listed the name of the individual at the bottom.

¶ 10. In attacking the credibility of the surveillance video reviewed by police and Ms. Dew then shown to the jury, Arm-stead highlights that the video did not show the person robbing the store well enough for anyone to identify him as the perpetrator. Armstead also argues that he was never found with the spoils of the crime and that the prosecution never established that he was in the area at the time the incident occurred or that his fingerprints were found at the scene.

¶ 11. The State offered testimony from Ms. Dew in which she conclusively identified Mr. Armstead from the second photo she saw. Ms. Dew also testified that she recognized him in the courtroom based on her seeing him the night of the robbery. There was testimony that she recognized him when he came into the store another day and that that identification was based on her seeing him the night of the robbery.

¶ 12. The prosecution did offer sufficient evidence to sustain a conviction of Mr. Armstead. This issue has no merit.

II. DID THE STATE FAIL TO PROVE THE ESSENTIAL ELEMENTS OF ROBBERY?

¶ 13. In proving the crime of robbery the prosecution must show that Mr. Armstead feloniously (1) took the personal property of another, (2) took it in his presence and (3) took it against his will by violence or threat of immediate injury to his person. Miss.Code Ann. § 97-3-73 (Rev.2000). Armstead challenges the State’s evidence on the third prong claiming it did not prove Ms. Bew was in fear of violence to her person. However, the trial transcript disproves this because as Ms. Bew testified that Mr. Armstead told her to open the cash register or he would kill her and that she was scared he was going to hurt her.

¶ 14. The State did prove that Ms. Bew was in fear of immediate injury to her person. This issue has no merit.

III. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN DENYING ARMSTEAD HIS RIGHT TO PARTICIPATE IN JURY SELECTION?

¶ 15. Our review of the trial transcript leads us to conclude that Mr. Arm-stead was present in the courtroom and silent during the voir dire of the jury. However, when he and the attorneys adjourned to the judge’s chambers, he spoke up a few times regarding the peremptory challenges by the prosecution claiming they were only dismissing black potential jurors. His attorney consulted with him and attempted to explain the process and the judge even attempted to explain the Bastón process to him. However, after Armstead repeatedly interrupted the judge, all attempts to educate him on the matter ceased while his attorney led him out of chambers for a moment.

¶ 16. In Hughes v. State, 807 So.2d 426, 430-31 (¶ 8) (Miss.2001), the Mississippi Supreme Court found that a defendant has the right to be present during the voir dire of the jurors in open court and that right cannot be waived by his attorney. However, the defendant’s right to participate in the actual jury selection in the judicial chambers can be waived by his attorney. Id.

¶ 17. Armstead was present during the complete voir dire process. He was in the courtroom for the questioning of potential jurors and was present in the judge’s chambers during the challenges. It appears Mr. Armstead believes that since he was censured a few times and led into the hall to settle down, he was not given full participation in the jury selection. It is the opinion of this Court that he had the full opportunity to discover any potential juror problems and those reservations could have been communicated to his attorney. Mr. Armstead’s appeal for reversal on this issue is denied.

IV. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY COMMENTING IN FRONT OF THE JURY AND BY ALLOWING THE PROSECUTOR TO COMMENT IN FRONT OF THE JURY ABOUT ARM-STEAD’S DECISION NOT TO TESTIFY?

¶ 18. Upon reviewing the trial transcript of this case, we find Mr. Arm-stead’s charges against the judge and the district attorney to be untrue. Mr. Arm-stead claims that they “all through the trial said, ‘Mr. Armstead is not testifying,’ ” and Mr. Armstead believes that those comments influenced the jury. The transcript indicates that the possibility of his taking the stand was mentioned twice. Once was when the judge was giving the preliminary instructions to the jury and explaining how the court system works. Judge Hines explained to the jurors that Mr. Armstead did not have to testify and that whether or not he testified should not affect their deliberation. The second was by his own attorney during opening statements. He told the jury that they did not know yet whether or not Mr. Armstead would testify.

¶ 19. Finding nothing in the transcript to support the appeal on this issue, the Court finds that reversal is denied.

V. DID DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN PUTTING UP NO DEFENSE DURING CLOSING ARGUMENT?

¶ 20. Armstead claims that his defense counsel failed to put up a proper defense in closing arguments. Armstead’s brief regarding this issue reads verbatim:

In the closing of argument attorney La-barre put up “no defense” on my behalf only said, “my client says he’s innocent.” Objection made but overruled. A conflict in interest, ineffective assistance of counseling, constitutional violation under fourteenth amendment.

¶21. To be entitled to the relief of ineffective assistance of counsel a defendant must show both a deficient performance and that, but for the deficient performance, a different result would likely have resulted. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2062, 80 L.Ed.2d 674 (1984); Donnelly v. State, 841 So.2d 207, 211(¶ 8) (Miss.Ct.App.2003). Armstead must also prove the ineffective assistance of counsel claim, under Mississippi Code Annotated Section 99-39-11(2) (Rev.2000), and the allegation must be alleged with specificity. Armstead “must specifically allege facts showing that effective assistance of counsel was not in fact rendered, and he must allege with specificity the fact that but for such purported actions by ineffective counsel, the results of the trial court decision would have been different.” Smith v. State, 434 So.2d 212, 219 (Miss.1983). See also Miss.Code Ann. § 99—39—9(1)(c) (Rev.2000); Terry v. State, 839 So.2d 643, 546(¶ 14) (Miss.Ct.App. 2002).

¶ 22. We find that Armstead failed to meet his statutory burden of proof regarding the allegation of ineffective assistance of counsel. His assertion that his attorney put up “no defense” during closing arguments other than to say “my client says he’s innocent” is completely false. The record reflects that both Mr. Arm-stead and his attorney William Labarre were given fifteen minutes in which to give a closing argument and both of them used approximately ten of those minutes. Mr. Labarre said much more in those ten minutes than Armstead asserts. Mr. Labarre attacked the failure of the police to find his fingerprints at the scene, the identification by Ms. Bew and emphasized other aspects of doubt.

¶ 23. Considering Armstead’s false accusations towards his attorney coupled with his failure to establish that the outcome would have been otherwise but for his attorney’s closing we determine he failed to meet his required burden of proof. Armstead is required to show that counsel’s performance was deficient and that he was prejudiced by counsel’s mistakes. Strickland, 466 U.S. at 686-87, 104 S.Ct. 2052. Finding no prejudice against him reversal on this issue is denied.

VI. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN OVERRULING ARMSTEAD’S OBJECTION TO THE STATE’S DISCOVERY VIOLATION?

¶24. On this final issue Arm-stead appeals because he was unaware Officer Williams would testify about his returning to the Exxon Station a few days after the robbery when Ms. Bew reported seeing the perpetrator again. He claims this is a reversible error by the prosecution for violating discovery procedures. “For a discovery violation to require reversal there must be a showing of prejudice and the non-disclosed material must be more than simply ‘cumulative.’ ” McCoy v. State, 811 So.2d 482, 482(¶ 15)(Miss.Ct.App.2002) (Citing Prewitt v. State, 755 So.2d 537, 541(¶ 8) (Miss. 1999); Buckhalter v. State, 480 So.2d 1128, 1128 (Miss.1985)).

¶ 25. Armstead shows no prejudice in that the identity of the witness was known and could have been interviewed by Arm-stead before trial. Also, Officer Williams’s testimony corresponds to the testimony given by Ms. Bew, which makes his testimony cumulative. Therefore, we can find no harm or showing of prejudice and that any discovery violation was harmless. The request for reversal on this issue is denied.

¶ 26. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT OF CONVICTION OF ROBBERY AND SENTENCE OF LIFE AS AN HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

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


source: Caselaw Access Project

author: McMILLIN, C.J., for the Court:

license: Public Domain

text:
    William David BURCHAM, Appellant, v. Lisa Johnson BURCHAM, Appellee.
    No. 2002-CA-01868-COA.
    Court of Appeals of Mississippi.
    March 23, 2004.

      Earl P. Jordan, James A. Williams, Meridian, attorneys for appellant.
    Lawrence Primeaux, Meridian, attorney for appellee.
    Before McMILLIN, C.J, IRVING and MYERS, JJ.
   McMILLIN, C.J., for the Court:

¶ 1. Lisa Burcham and David Burcham ended their marriage by consenting to a divorce on the ground of irreconcilable differences. Unable to resolve certain financial aspects of the dissolution of the marriage, the parties entered into a written stipulation submitting the unresolved issues to the chancellor for determination. Mr. Burcham, finding himself dissatisfied with certain aspects of the chancellor’s ruling, has appealed to this Court and raises three issues. In summary, they are (a) that the chancellor erred in establishing a level of child support that exceeded the statutory guidelines; (b) that the chancellor abused her discretion by being unreasonably generous in making provision for the post-divorce support of Mrs. Burcham both as to the equitable distribution of marital assets and the requirement of permanent periodic alimony; and (c) that the chancellor erred in requiring Mr. Burcham to pay attorney’s fees for Mrs. Burcham’s representation in the divorce proceeding.

¶ 2. We find that the issue of the judicially-determined level of child support is not properly preserved for appellate review and affirm on that basis. We determine that the remaining provisions of the chancellor’s ruling relating to financial matters complained of by Mr. Burcham fall within the realm of discretionary authority afforded the chancellor in resolving a domestic relations case and, for that reason, we affirm as to them also. Finally, we affirm the award of attorney’s fees.

I.

Facts

¶3. The parties were married on November 6, 1993. They obtained a judgment for divorce on January 30, 2002. One child was born of the marriage on March 3, 1995. The child’s name is William Bradly Burcham. Mr. Burcham was forty-two years of age at the time of divorce and worked on an off-shore oil rig as a tool pusher. Mrs. Burcham had formerly worked as a cosmetologist prior to the marriage but was not engaged in employment outside the home during most of the marriage, instead devoting herself to the care of the couple’s child and her two other children from a previous marriage. After the parties separated, Mrs. Burcham had worked in several different fields and was earning approximately $12,000 per year. She has not returned to the field of cosmetology. Mr. Burcham’s employment resulted in earnings of approximately $72,000 annually. Mr. Burcham had accumulated substantial sums in several retirement related accounts with his employer which totaled in the aggregate approximately $40,000. The proof further showed that he had exercised several stock purchase options available through his employer, one prior to the parties’ separation and one after, and that he realized a combined sum of approximately $25,000 cash from those transactions. In addition, he withdrew approximately $8,700 from his pension fund after the separation and used approximately $5,400 of the money to pay existing family debts and a fine and legal fees in conjunction with his arrest on charges of driving while intoxicated. The remaining balance of just over $3,200 was divided between the parties.

¶ 4. The chancellor, in resolving the various matters entrusted to her for decision under the required written stipulation filed by the parties, established child support at the rate of $650 per month. As for the equitable division of marital assets, the parties agreed that the house would ultimately be sold and the proceeds divided equally. Additionally, the chancellor determined that all funds in Mr. Burcham’s various retirement funds accumulated during the marriage should be divided equally. In an effort to equalize somewhat Mr. Burcham’s receipt of stock option funds and retirement withdrawals, the chancellor ordered Mr. Burcham to assume sole responsibility for all indebtedness listed in his statement of economic interest except the home mortgage-a total debt figure of approximately $31,000 — while requiring Mrs. Burcham to assume sole liability for less that $7,000 of existing indebtedness.

II.

Issue One: Child Support

¶ 5. Mr. Burcham now complains that the chancellor erred in setting child support at the figure of $650 per month because the proof showed that Mr. Burc-ham’s income exceeded the $50,000 annual sum mentioned in Section 43-19-101(4) and the chancellor did not make specific findings of fact as to the needs of the child and the justification for setting child support according to the statutory percentage or on some other basis, thus making the award a purely arbitrary amount and an abuse of the chancellor’s discretion.

¶ 6. We find that Mr. Burcham is barred from raising this issue on appeal. During the course of his testimony, both on direct and on cross-examination, Mr. Burcham agreed that the proposed figure of $650 per month was a fair and reasonable sum for him to pay as child support. The following exchange occurred between Mr. Burcham and his attorney:

Q. And you’re willing, as I understand it, we have agreed, and I think it’s eight cents off on your last year’s income tax return to pay $650 a month child support?
A. Yes, sir.

¶ 7. In the chancellor’s memorandum opinion, which was entered at the conclusion of this matter without objection from Mr. Burcham, the chancellor found as follows:

[Mr. Burcham] is employed off shore on an oil rig, and makes a gross monthly income of $7,127.00. He [Mr. Burcham] opined that $650.00 per month is reasonable child support, and prefers to pay his child support directly rather than through the Twelfth Chancery Court District Bank Plan for Child Support.

¶ 8. The ensuing formal judgment, plainly based upon the chancellor’s memorandum opinion, set child support in that amount. No post judgment motion seeking reconsideration or urging some misapprehension on the part of the chancellor in making these findings was filed; rather, the judgment was followed only by Mr. Burcham’s notice of appeal.

¶ 9. It is a fundamental concept of appellate law that matters, in the normal course, may not be raised for the first time on appeal, but rather have to be presented for decision first to the trial court. Scatty v. Scatty, 802 So.2d 128(¶ 27) (Miss.Ct.App.2001).

¶ 10. In Seeley v. Stafford, this Court said that “a non-custodial parent may agree to pay child support in an amount greater than the guideline set forth in Miss.Code Ann. § 43-19-101 (Rev. 2000). Certainly, the parties have a right to agree to provide more support for their children than the guidelines require.” Seeley v. Stafford, 840 So.2d 111(¶ 16) (Miss.Ct.App.2003). In Seeley, the agreement to pay more than the guidelines require was formally incorporated into a written agreement executed by the parties whereas in this instance Mr. Burcham’s agreement is evidenced by his testimony from the witness stand. However, we do not conclude that this distinction between the form of the agreement suggests the necessity for a different treatment of a commitment by the parent that was voluntarily undertaken.

III.

Equitable Distribution and Periodic Alimony

¶ 11. In addition to the equitable distribution discussed earlier, the chancellor found that, in order to fairly resolve the various economic considerations associated with the dissolution of this marriage, Mr. Burcham should be required to pay the sum of $400 per month in periodic alimony to Mrs. Burcham.

¶ 12. On appeal, Mr. Burcham contends that, when the two awards are considered together, the financial benefit to Mrs. Burcham is so overly generous as to constitute an abuse of discretion on the part of the chancellor. Mr. Burcham, in support of that contention, argues that the marriage was of too short a duration to warrant periodic alimony and that the chancellor improperly narrowed the factors under consideration in fashioning these awards to the disparate post-divorce income of the two parties, neglecting to consider other factors mandated by case law.

¶ 13. We find both contentions to be without merit. The chancellor, in making the required equitable division of assets accumulated during the marriage, gave attention to the various considerations mandated by the Mississippi Supreme Court in Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994). Included in her decision was the fact that Mrs. Burcham had contributed to the welfare of the family by acting as the family caretaker while Mr. Burcham served as the primary source of income to meet family needs. The division of assets was essentially equal except for the. fact that the chancellor ordered Mr. Burcham to assume responsibility for a larger share of the existing family-related indebtedness. However, this unequal division was explained as being based partly on the fact that Mr. Burcham had expended family resources in expenses related to his DUI charges, that his behavior had been a contributing factor in the deterioration of the marriage, and, finally, that his post-divorce income put him in a much better financial posture to deal with these debts than Mrs. Burcham would have been able to do.

¶ 14. There is no requirement that marital assets be divided equally. Parsons v. Parsons, 741 So.2d 302(¶ 23) (Miss.Ct.App.1999) (citing Ferguson, 639 So.2d at 927). In making the division, the chancellor is afforded substantial discretion and an appellate court may properly reverse only on determining that the chancellor has abused that discretionary authority. Young v. Young, 796 So.2d 264(¶ 7) (Miss.Ct.App.2001) (citing Arthur v. Arthur, 691 So.2d 997, 1003 (Miss.1997); Ferguson, 639 So.2d at 930). In this case, the chancellor set out reasoned explanations for the basis of her division and we do not find that she abused her discretion in making that division.

¶ 15. After making that division, the chancellor must next consider an award of alimony, taking into account a number of factors set out in Armstrong v. Armstrong, 618 So.2d 1278 (Miss.1993). In this case, it is apparent that, even taking into account the property received in the equitable division, Mrs. Burcham was faced with substantially less available sums to meet her anticipated living expenses than was Mr. Burcham. After considering Mrs. Burc-ham’s reasonable post-divorce earning potential and other factors, including fault in the marriage break-up attributable to Mr. Burcham’s behavior, the chancellor concluded that a sum of periodic alimony was appropriate in order to more fairly provide for the needs of both parties after their divorce. Under Armstrong, the duration of the marriage is but one consideration and, while seven years may not be an extremely long period, the fact remains that during that time Mrs. Burcham quit her regular employment to have a child and provide care for that child and to keep a home for the family. This interruption in her working career for such a period of time could reasonably be seen as permanently diminishing her potential for more lucrative forms of employment, which is in sharp contrast to Mr. Burcham’s post-divorce earnings outlook.

¶ 16. In view of the lack of available assets to provide a steady source of income to Mrs. Burcham after the divorce and taking into consideration Mr. Burcham’s on-going capacity to make relatively large sums of money in his chosen employment, we do not find that the chancellor abused the discretion given her in such matters when she set periodic alimony at $400 per month.

IV.

Attorney’s Fees

¶ 17. The chancellor awarded Mrs. Burcham attorney’s fees of $3,500. Mr. Burcham contends this was in error because there was no evidence that, without the award, Mrs. Burcham would be unable to defray the costs of her own representation in the divorce. E.g., Russell v. Russell, 733 So.2d 858(¶ 16) (Miss.Ct.App.1999).

¶ 18. The awards to Mrs. Burcham out of the divorce were relatively meager and were plainly intended by the chancellor to be available to her to provide housing and basic living expenses for her and the child born of the marriage. In that situation, to require her to expend a substantial portion of the funds received in the equitable division of assets in order to pay her attorney’s fees would defeat the purpose of the award by the chancellor to a large extent. Beyond those assets received in the equitable division, there is no evidence that Mrs. Burcham possessed other separately-held assets or untapped earning capacity that would be available to meet her attorney’s fees.

¶ 19. In that situation, we find that the chancellor did not abuse her discretion in requiring Mr. Burcham to contribute toward Mrs. Burcham’s cost of representation. We, therefore, affirm the award of attorney’s fees.

¶ 20. THE JUDGMENT OF THE CHANCERY COURT OF LAUDER-DALE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO APPELLANT.

KING AND SOUTHWICK, P. JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: McMILLIN, C.J., for the Court.

text:
    Narkia Vashon LEE, a/k/a Nakia Lee, a/k/a Vashan Lee, a/k/a Kado Lee, a/k/a Kevin Lee, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01604-COA.
    Court of Appeals of Mississippi.
    March 30, 2004.
    Whitman D. Mounger, Greenwood, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and IRVING, JJ.
   McMILLIN, C.J., for the Court.

¶ 1. Narkia Vashon Lee has appealed his conviction for burglary of a commercial building claiming that the State failed, as a matter of law, to provide credible evidence of each of the essential elements of the crime or, in the alternative, that the verdict was so against the weight of the evidence that he should be granted a new trial. Finding Lee’s contentions to be without merit, we affirm the conviction and resulting judgment of sentence.

I.

Facts

¶ 2. Police officers, responding to an early morning security alarm call from a convenience store in Greenville, discovered that a window in the store had been broken out. They later determined that an ATM machine located within the store was missing. In the course of their investigation, officers discovered quantities of blood, indicating that the perpetrator may have been injured on the glass from the broken window. The ATM machine was later found and recovered. It had evidence of spattered blood on it. Officers also secured a video camera that had recorded the break-in.

¶ 3. Based on the quantity of blood discovered at the store, officers suspected that the perpetrator might need to obtain medical assistance, and they alerted the local hospital. The hospital informed police officers that a person had presented himself for treatment of multiple lacerations, claiming that the injuries had been incurred when he was assaulted by a gang of five individuals. Hospital officials identified Lee as the individual they had treated and provided police officers with a home address. Officers went to the home. Lee was not present, but the officers were permitted to conduct a search by Lee’s mother. They discovered drops of blood on the porch as well as bloody clothing and a bloody towel inside the house.

¶ 4. Samples of blood from the store and from the ATM machine were obtained and subjected to DNA analysis along with a known sample obtained from Lee. The State offered expert testimony that the blood from all three tested samples appeared to have come from the same individual and that the likelihood that another individual other than Lee would have the same DNA characteristics was less than one in ten billion.

¶ 5. Lee testified in his defense and reported again that he had received his injuries when he was assaulted by a gang of individuals. When confronted with the fact that shards of glass had been found imbedded in some of his wounds, Lee testified that he had been assaulted with a broken bottle. He claimed that he had summoned his sister by telephone to come and take him directly to the hospital. When asked how he could explain the presence of blood droplets on his front porch, were that the case, he said that his sister had temporarily wrapped his wounds in a towel while she transported him to the hospital, that she had subsequently gone to the home in search of an insurance card, and that she had taken the towel with her from the hospital. He offered the opinion that the droplets of blood came from the bloody towel rather than directly from his person.

¶ 6. The jury returned a verdict of guilty, and this appeal ensued.

II.

Discussion

¶ 7. Lee attacks the State’s proof primarily on the basis that the police did not investigate his reported assault and that he denied having a pair of pants like those shown to be worn by the perpetrator in the video recording of the break-in. However, he could offer no explanation for how blood was found at the scene of the crime, that, based on scientific testing, had a strong likelihood of being his. Also, as we have already discussed, Lee offered what must be objectively viewed as a rather suspect explanation for how droplets of his blood came to be found on the front porch of his home when he contended that he had never been there after he was injured.

¶ 8. In reviewing a challenge to the sufficiency of the evidence, this Court is constrained to view the evidence in the light most favorable to upholding the jury’s verdict. Wetz v. State, 503 So.2d 803, 808 (Miss.1987). We must assume that jurors drew all inferences from the evidence that could reasonably be drawn in a manner that was consistent with guilt. Id. Only if we are satisfied that, as to one or more of the essential elements of the crime, the State’s evidence was so lacking that a reasonable juror fairly evaluating the evidence could only return a verdict of not guilty ought we to interfere. Id.

¶ 9. In this case, the State presented very compelling evidence that would appear to almost conclusively link Lee with the break-in at the convenience store. All of the elements of a burglary, including the breaking and entering and evidence from which the jury could find the necessary intent to commit a crime once inside the business, were shown by credible evidence to have occurred. Lee’s contention that the State’s case failed as a matter of law is, beyond question, without merit.

¶ 10. As to Lee’s alternative contention that the verdict was against the weight of the evidence, we note that the jury sits as finders of fact and their conclusions are entitled to substantial deference on appeal. Parker v. Thornton, 596 So.2d 854, 858 (Miss.1992). Charged with resolving disputed issues of fact concerning whether Lee was injured in the break-in or in an assault by individuals wielding broken bottles that only coincidentally occurred at about the same time, the jury appears to have placed reliance in the scientific evidence strongly linking Lee to the scene of the break-in. The only evidence weighing against this persuasive proof was Lee’s own self-serving version of events that was not corroborated by any unbiased witness or objective demonstrative evidence. We find no merit in Lee’s assertion that it would constitute a miscarriage of justice to permit this verdict to stand.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY OF CONVICTION OF BURGLARY OF A COMMERCIAL BUILDING AND SENTENCE OF SEVEN YEARS WITHOUT THE POSSIBILITY OF PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

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


author: CHANDLER, J., for the Court.

text:
    Alvin M. HUDSON, Appellant, v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION, Appellee.
    No. 2003-CC-00712-COA.
    Court of Appeals of Mississippi.
    April 6, 2004.

      Alvin M. Hudson, appellant, pro se.
    Albert Bozeman White, Madison, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and CHANDLER, JJ.
   CHANDLER, J., for the Court.

¶ 1. Alvin M. Hudson appeals pro se from the denial of unemployment benefits.

FACTS

¶ 2. Hudson worked as a pipefitter for Nepco from September 3, 2002, until September 12, 2002. On September 18, 2002, Hudson filed a claim for unemployment benefits. The claims examiner found that Hudson voluntarily left work to seek other employment and denied the claim. Hudson requested reconsideration, and a telephonic hearing was held before an appeals referee. Hudson was the sole witness; the employer did not respond to the notice of hearing.

¶ 3. Hudson alleged the following facts in his written request for reconsideration and at the hearing. Hudson suffers from high blood pressure. When he was hired at Nepco, a company nurse checked his blood pressure and noted that it was high. Hudson’s first day working at a Nepco project site went well; his foreman was absent from work. On Hudson’s second day, the foreman, “Ax,” appeared at work and continually told Hudson that he had to stay busy, look busy, or be discharged. For the duration of Hudson’s employment at Nepco, Ax communicated these warnings to Hudson at least twice daily, though Hudson performed all his assignments to best of his abilities. Hudson considered this harassment. At a September 9 safety meeting, Ax informed the employees that the company intended to lay off workers and was looking for workers to “run off.” Ax pulled Hudson aside at this meeting and told him to be very careful not to get caught talking to anyone. Hudson felt uncomfortable and singled out because he was the only employee whom Ax subjected to constant warnings.

¶ 4. On September 10, Hudson became concerned that the situation was causing his blood pressure to elevate. The safety department checked his blood pressure and confirmed that it was elevated. Hudson got permission to leave work to visit his physician. The physician found that Hudson’s blood pressure was elevated and increased his blood pressure medication. The next day, Hudson informed Ax that the harassment was raising his blood pressure, but Ax continued to urge Hudson to stay busy or, if there was no work to be done, look busy. At this point, Hudson felt that, due to his health, it was unsafe for him to stay at the job. Hudson told Ax that he could not take it anymore and that he could not stay under the circumstances. The project manager seemed happy to see Hudson leave. Hudson informed a human resources employee that he was leaving. The employee ascertained from Hudson that he was not quitting to go to another job, but did not otherwise inquire into Hudson’s reason for quitting.

¶5. Hudson submitted a UI-538 form completed by Dr. Samuel Simmons in reference to Hudson’s physical condition. On the form, Dr. Simmons indicated that he treated Hudson for hypertension and obesity, and that on September 9, 2002, he advised Hudson to leave work if he was unable to tolerate the work. Dr. Simmons stated that Hudson had limited ability to perform strenuous activity but was able to perform other duties, and that it was unknown whether Hudson could do his usual work.

¶ 6. The appeals referee denied Hudson’s claim, and made the following findings:

The facts and evidence in this case show that the claimant voluntarily quit this position because he felt like his foreman was placing pressure on him and causing his blood pressure to elevate. The evidence presented by the claimant in this case does not substantiate a finding that the employer caused his blood pressure to elevate, nor has the claimant established that his physician advised him to leave his job due to his health concerns. The claimant did not exhaust all avenues with this employer in an effort to resolve this problem before he quit. Consequently, the decision rendered by the claims examiner is in order.

¶ 7. Hudson appealed to the MESC Board of Review, which adopted the opinion of the appeals referee. The Circuit Court of George County affirmed the decision of the MESC, and Hudson appeals.

LAW AND ANALYSIS

¶ 8. Unemployment benefits are available for employees who leave work involuntarily, through no fault of their own. Mills v. Miss. Employment Sec. Comm’n., 228 Miss. 789, 797, 89 So.2d 727, 729 (1956) (quoting Dwyer v. Appeal Bd. of Mich. Unemployment Comp. Comm’n., 321 Mich. 178, 188, 32 N.W.2d 434, 437 (1948)). An employee is disqualified from receiving unemployment benefits if the person left the job voluntarily without good cause. Miss.Code Ann. § 71-5-513(A)(1)(a) (Supp.2003). The employee has the burden of proving that he left the job for good cause. Miss.Code Ann. § 71-5-513(A)(l)(c) (Supp.2003).

¶ 9. Our review of the MESC’s denial of unemployment benefits is limited to questions of law as provided in Mississippi Code Annotated section 71-5-531 (Rev.2000). “The Board’s findings of fact are conclusive if supported by substantial evidence and without fraud.” Hoerner Boxes, Inc. v. Miss. Employment Sec. Comm’n., 693 So.2d 1343, 1347 (Miss.1997). The Board’s finding that an employee has quit work voluntarily without good cause is a question of fact that will be affirmed if supported by substantial evidence. Huckabee v. Miss. Employment Sec. Comm’n., 735 So.2d 390, 394 (¶ 14) (Miss.1999).

¶ 10. Hudson does not dispute the MESC’s finding that he voluntarily left the job. Hudson argues that he proved that he had good cause to leave Nepco because he presented evidence that his physician instructed him to quit the job due to a health risk posed by the foreman’s harassment. Hudson argues that the MESC ignored this medical evidence showing good cause.

¶ 11. As the finder of fact, the MESC is charged with determining the weight and credibility of the evidence. Byrd v. Pub. Employees’ Ret. Sys., 774 So.2d 434, 438 (¶ 15) (Miss.2000). The MESC found that Hudson had not established that his physician advised him to leave the job due to his health concerns. In his report, Dr. Simmons specifically refused to opine whether or not Hudson could perform his usual employment as a pipefitter at Nepco, stating that whether he could do the job was “unknown.” Dr. Simmons stated that Hudson was physically limited from performing strenuous activity, and that Hudson should leave any work that he could not tolerate. Hudson argues that Dr. Simmons’ directive for Hudson to leave any work he could not tolerate justified Hudson’s decision to leave Nepco. One reasonable interpretation of Dr. Simmons’ instruction for Hudson to leave work he could not tolerate is that Dr. Simmons thought Hudson should cease any activity he found too strenuous. Hudson does not claim that he left Nepco to avoid strenuous activity; rather, he claims he left because his blood pressure became elevated due to anxiety over the foreman’s frequent warnings. Therefore, the MESC’s finding that the physician did not advise Hudson to leave the job because of his health concerns is supported by substantial evidence in the form of a reasonable interpretation of the physician’s report.

¶ 12. The MESC’s finding that Hudson failed to prove good cause is also supported by Hudson’s negligible effort to resolve the problem with the employer prior to quitting. Hudson testified that he told the foreman that the foreman’s conduct was elevating his blood pressure and asked him to stop. When the foreman again told Hudson to stay busy or look busy, Hudson quit. Hudson never sought to remedy the problem by reporting it to the foreman’s supervisor or to the human resources department, or by taking any other reasonable measure to allow the employer to solve the problem. See Hoerner Boxes, 693 So.2d at 1347. Therefore, the MESC’s finding that Hudson voluntarily left his job without good cause is supported by substantial evidence.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF GEORGE COUNTY AFFIRMING THE DECISION OF THE MISSISSIPPI EMPLOYMENT SECURITY COMMISSION IS AFFIRMED.

McMILLIN, C. J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS AND GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.

      . Though Hudson was the only witness before the appeals referee, he had the burden of proof that he left the job for good cause. Therefore, precedent addressing the effect of no employer witness appearing to present evidence on misconduct is inapplicable, as the burden for misconduct belongs to the employer. Miss.Code Ann. § 71-5-513(A)(1)(c) (Supp.2003); see Little v. Miss. Employment Sec. Comm’n., 754 So.2d 1258, 1260 (¶ 11) (Miss.Ct.App. 1999); Campbell v. Miss. Employment Sec. Comm’n., 782 So.2d 751 (¶¶ 21-22) (Miss.Ct.App.2000).


author: GRIFFIS, J., for the Court.

text:
    Delores SPENCER, Appellant, v. TYSON FOODS, INC., Appellee.
    No. 2003-WC-00805-COA.
    Court of Appeals of Mississippi.
    April 6, 2004.

      John Griffin Jones, Aubrey Horace Brewer, Jackson, attorneys for appellant.
    Michelle Barlow Mims, James Ryan Perkins, Daniel M. Baker, attorneys for appellee.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Delores Spencer claimed that she was injured while working at the Tyson Foods, Inc. (“Tyson”) chicken processing plant. The Mississippi Workers’ Compensation Commission found that Spencer suffered a compensable injury in the course and scope of her employment and granted disability benefits. Tyson appealed to the Circuit Court of Hinds County, and the Commission’s award was reversed. Finding substantial evidence to support the Commission’s findings, we reverse and reinstate the order of the Commission.

FACTS

¶ 2. Delores Spencer was employed as a breast puller. Breast pullers work at the end of the deboning line where, after pulling the breast meat off the carcass, they inspect the meat for excess bones or fat.

¶ 3. On April 20, 2000, Spencer was pulling a chicken breast when she suddenly felt pain in her neck, right shoulder, arm and hand. Spencer claims that she immediately informed her supervisor, Tommie Sanders, that her hand had gone numb, and he sent her to the plant nurse. Sanders disputes this and testified that he never sent her to the nurse, but he did recall Spencer telling him that her arm was bothering her.

¶4. Spencer testified that she went to the nurse who wrapped her arm in a blue Ace bandage-like material from her hand to midway up her arm. The nurse could not remember treating Spencer and could not find Spencer’s name in the nurse’s injury log book. Both Sanders and the nurse testified that it is company policy for an employee to sign the log book before they are allowed to see the nurse. However, the regular plant nurse was on vacation that night and a temporary nurse was filling in as the nurse on duty. Spencer testified that the temporary nurse treated her, and she described the temporary nurse and recalled their conversation.

¶ 5. After she returned from the nurse’s station, Spencer testified that Sanders and the plant supervisor, Sam Thomas, placed her on “light duty” work at a chicken washing station, where she was not required to use her right arm. Spencer asked Thomas if she could go to the doctor, but she claims that he told her she would lose her Good Friday holiday pay if she left. Spencer worked the remainder of her shift at the washing station.

¶ 6. At the end of her shift, Spencer went home and told her husband that she had been injured at work. Spencer tried to go to her family doctor later that morning, but his office was closed for the holiday. By noon, Spencer could not move the right side of her body, so her husband took her to the emergency room. She was treated by her family physician, Dr. L.C. Tennin. Dr. Tennin opined that Spencer’s condition resulted from the cumulative effects of repetitive work motions which exacerbated an underlying condition, cervical spondylosis. Dr. Tennin then referred Spencer to Dr. Mitchell Myers, a neurologist.

¶ 7. On April 24, 2000, Spencer was transferred to St. Dominic’s to see Dr. Myers. From radiological studies, Dr. Myers noted bony abnormalities known as spondylosis which compress and can compromise the spinal cord. However, Dr. Myers’ ultimate diagnosis was transverse myelitis, an inflammation of the spinal cord, with cervical spondylosis. Dr. Myers testified that it was impossible to know which was the primary cause of the injury, but that there was no question work activities could exacerbate pre-existing spondy-losis.

¶ 8. Dr. Myers then consulted Dr. Adam Lewis, a neurosurgeon, to operate on Spencer. In his deposition, Dr. Myers testified:

I mean, basically I said to Dr. Lewis, I said, “Adam, I think this woman has got transverse myelitis. Her spinal cord looks like it is being compressed. She’s got spondylosis. We better decompress her or we are going to have a worse problem here.”

¶ 9. In his operative notes, Dr. Lewis gave Spencer a pre-operative diagnosis of cervical spondylosis with traumatic spinal cord injury. Dr. Lewis operated on Spencer on April 26, 2000, and his diagnosis did not change. In his deposition, Dr. Lewis testified that, after consultation with other physicians and obtaining additional history, it was his opinion that repetitive motions from Spencer’s work led to her injury. Dr. Lewis reasoned:

So it sounded to me like it was a traumatic event. Small, many traumatic events repeated over time, which led to the weakness. She didn’t have any pro-drome of an upper respiratory infection or previous viral infection, which you often see with transverse myelitis.

¶ 10. The medical records and testimony indicate that the treating physicians could not agree on the primary cause of Spencer’s injury; however, they all admitted that Spencer had spondylosis, which may have been aggravated by the repetitive motions of her work. The diagnosis of spondylosis was even documented by an MRI. Dr. Lewis testified that his diagnosis of spondylosis remained unchanged following surgery and was further bolstered by the fact Spencer’s strength significantly improved within twenty-four hours of the operation. He testified that with transverse myelitis the recovery would have been much slower.

¶ 11. Spencer testified that, before her surgery, she spoke with Scottie Ball, Tyson’s head nurse, and told her that the injury was work related. Ball disputes this fact; however, Ball testified that her notes of the telephone conversation read, “Problems started when she was cutting wings. Stated after seeing nurse she washed meat for the rest of the evening.” Ball explained that she was of the opinion that “just because something happens while you’re doing some particular thing, that doesn’t mean it is related to that job I guess is what I’m trying to say.”

¶ 12. Spencer initiated the workers’ compensation proceedings by filing a petition to controvert with the Commission. Spencer alleged that she suffered a com-pensable workplace injury. The workers’ compensation administrative law judge conducted a hearing on the merits. The administrative law judge ruled that Spencer sustained a compensable injury and ordered Tyson to pay permanent total disability benefits of $207.02 per week, beginning on April 20, 2000, and continuing for 450 weeks. Tyson appealed to the Commission, and the administrative law judge’s findings were affirmed. Tyson then appealed to the Hinds County Circuit Court, where the Commission’s order was reversed. This appeal was deflected to this Court for consideration.

STANDARD OF REVIEW

¶ 13. An appellate court must defer to an administrative agency’s findings of fact if there is even a quantum of credible evidence which supports the agency’s decision. Hale v. Ruleville Health Care Center, 687 So.2d 1221, 1224 (Miss.1997). “This highly deferential standard of review essentially means that this Court and the circuit courts will not overturn a Commission decision unless said decision was arbitrary and capricious.” Id. at 1225; Georgia Pacific Corp. v. Taplin, 586 So.2d 823 (Miss.1991).

¶ 14. The supreme court has held:

We do not sit as triers of fact; that is done by the Commission. When we review the facts on appeal, it is not with an eye toward determining how we would resolve the factual issues were we the triers of fact; rather, our function is to determine whether there is substantial credible evidence to support the factual determination by the Commission.

South Central Bell Telephone Co. v. Aden, 474 So.2d 584, 588 (Miss.1985). Stated differently, this Court will reverse the Commission’s order only if it finds that order clearly erroneous and contrary to the overwhelming weight of evidence. Myles v. Rockwell Int’l., 445 So.2d 528, 536 (Miss.1984) (citing Masonite Corp. v. Fields, 229 Miss. 524, 91 So.2d 282 (Miss.1956)); Riverside of Marks v. Russell, 324 So.2d 759, 762 (Miss.1975). Appellate courts may not simply reweigh the evidence and substitute its decision for that of the Commission. Indeed, this Court has a duty to defer to the Commission when its decision can be supported. Fought v. Stuart C. Irby, Co., 523 So.2d 314, 317 (Miss.1988).

ANALYSIS

¶ 15. Spencer asserts the circuit court erred in its conclusion that the Commission’s decision was not supported by substantial evidence. We must consider the Commission as the ultimate fact finder. South Central Bell Telephone Co., 474 So.2d at 588. The Commission, therefore, enjoys the presumption that it made proper determinations as to the weight and credibility of the evidence and its factual findings are binding on this Court, and the circuit court as a reviewing court, provided the findings are supported by substantial evidence. Fought, 523 So.2d at 317.

¶ 16. The term “substantial evideneé” is not easily defined. However, Mississippi courts have held that “substantial evidence” means something more than a “mere scintilla” of evidence, and that it does not rise to the level of “a preponderance of the evidence.” Delta CMI v. Speck, 586 So.2d 768, 772-73 (Miss.1991). Thus, it may be said that substantial evidence “means such relevant evidence as reasonable minds might accept as adequate to support a conclusion.” Id. We look to determine whether there was substantial evidence to support the Commission’s decision.

¶ 17. To recover, a workers’ compensation claimant must prove: (1) an accidental injury, (2) which arises from the course and scope of employment, and (3) there must be a causal relationship between the injury and the alleged disability. Hedge v. Leggett & Platt, Inc. 641 So.2d 9, 12-13 (Miss.1994). The employer can rebut only with evidence that rises above mere speculation or possibility. Id.

¶ 18. The first question for our consideration is whether Spencer’s injury was “accidental.” Under the Mississippi Workers’ Compensation Act, “an injury may be accidental although it occurs in the usual course of employment and involves only the usual exertion.” Vardaman S. Dunn, Mississippi Workers’ Compensation § 148 (3d ed.1982 and Supp.1990). The Act’s definition of injury also includes the aggravation of pre-existing conditions. Hedge, 641 So.2d at 13-14.

¶ 19. Spencer claims that she suffered pain, which led to numbness, while pulling a chicken breast at work. Spencer was employed as a “breast puller,” so her injury occurred in the usual course of her employment. Tyson argues that Spencer’s injury was due to transverse myelitis, which was not affected by her work. However, notwithstanding a diagnosis of transverse myelitis by Dr. Myers, the treating physicians all agreed, and objective medical evidence proved, that Spencer had spondylosis. The physicians also agreed that the repetitive pulling motions required in Spencer’s line of work aggravated her spondylosis, a pre-existing condition.

¶ 20. Transverse myelitis is an infectious or inflammatory process in the spinal cord. It is usually accompanied by an upper respiratory infection or previous viral infection. Dr. Lewis testified that there were no laboratory studies which pointed to transverse myelitis.

¶ 21. Spondylosis is a condition in which bony abnormalities compress the spine. Spencer’s MRI indicated the she had spon-dylosis, and the medical evidence established that spondylosis can be aggravated by repetitive motions such as those required by Spencer’s work. Thus, there was substantial evidence before the Commission to support its conclusion that Spencer’s injury met the definition of an accidental injury under the Act.

¶ 22. The second question is whether Spencer’s injury resulted from the course and scope of her employment, i.e, was the injury work-related. Miss. Code. Ann. § 71-3-7 (2000). There are two separate parts to consider. In the “course of’ asks whether the employee was injured while furthering the employer’s business at a time and place incident to the employment. Spencer was injured by pulling a chicken breast while furthering her employer’s business. In the “scope of’ asks whether the employment was a substantial contributing cause of the disability.

¶ 23. The exact cause of Spencer’s primary medical problem was not, and the physicians testified could not be, ascertained. However, all three doctors who treated Spencer opined that her work aggravated her spondylosis, thereby contributing to the injury. Accordingly, there was substantial evidence to support the Commission’s finding that Spencer’s employment was a substantial contributing cause of her disability.

¶ 24. The third question is whether there was a causal connection between the injury and the disability. As discussed above, the workplace injury need not be the primary cause of disability. Hedge, 641 So.2d at 14. Tyson relies on testimony by Dr. Myers that the diagnosis of transverse myelitis was the primary cause of Spencer’s disability, arguing that her injury could not be work-related. Tyson claims that the Commission should have given more weight to Dr. Myers’ opinion because he is a neurologist and as such he is more qualified to make a diagnosis. Tyson also argues that it is a well-established rule that treating specialists’ opinions carry more weight than those of a general practitioner or a physician outside of the specific area of expertise. Arthur Larson, Workers’ Compensation Law, § 130.05(4)(b) (2000). Tyson claims that Dr. Myers was Spencer’s treating physi-dan and that his opinion should carry more weight.

¶ 25. Spencer argues that it was within the Commission’s discretion to determine the weight and credibility of the opinions of Spencer’s physicians. Spencer points to the fact that Dr. Lewis was also a treating physician because he performed her surgery. Spencer claims that Dr. Lewis’ opinion should be given more weight because he was a treating physician, and he actually saw her spine during the operation. Moreover, Spencer argues that, even if we were to rely on Dr. Myers’ opinion as Tyson argues we should, Dr. Myers admits the aggravation to Spencer’s spondylosis from the repetitive pulling motions of her job could have caused her problem.

¶ 26. The Commission’s decision on the causal connection element was a factual decision. The Commission had conflicting evidence that supported the positions taken by both Spencer and Tyson. Following our standard of review, we cannot and will not reweigh the evidence. Instead, we consider whether there was substantial evidence to support the Commission’s decision. Although we may have placed greater weight on Dr. Myers’ opinion, we confine our review to determine whether substantial evidence existed before the Commission. Here, substantial evidence did in fact exist to support the Commission’s finding.

¶ 27. Spencer presented substantial evidence to prove that she had a com-pensable injury. Once proven, the employer can rebut only with evidence that arises above mere speculation or possibility. Hedge, 641 So.2d at 12-13. Hedge interprets evidence that rises “above mere speculation or possibility” to mean that the employer must demonstrate another, non-work-related cause of the injury to sustain its burden of rebuttal. Id. at 14-15.

¶ 28. Tyson claims that transverse myelitis, which is non-work-related, not spondylosis, was the cause of Spencer’s injuries. Thus, Tyson contends that the circuit court did not err in reversing the Commission. However, in Kersh v. Greenville Sheet Metal Works, 192 So.2d 266, 269 (Miss.1966), the Mississippi Supreme Court held that where medical testimony is concerned, whenever the expert evidence is conflicting, the Court will affirm the Commission whether the award is for or against the claimant. Thus, the circuit court erred when it reweighed the evidence rather than looking to see if there was substantial evidence to support the Commission’s decision.

¶ 29. Tyson’s final argument is that the Commission’s order could not have been based on substantial evidence because of the testimony of Spencer’s supervisor and the on-call nurse, which contradicted Spencer’s testimony of the events that occurred at work. Tyson argues that in White v. Superior Products, Inc., 515 So.2d 924, 927 (Miss.1987), the supreme court concluded that:

On the one hand, the undisputed testimony of a claimant which is not so unreasonable as to be unbelievable, given the factual setting of the claim, generally ought to be accepted as true. On the other hand, the Commission is the judge of the credibility of the witnesses. Where, in such circumstances, the Commission, with reason, finds a claimant’s testimony untrustworthy or incredible, the Commission has the authority to reject it.

The Commission did judge the credibility of Spencer’s testimony and did not reject it, but rather used it as a basis for granting her workers’ compensation benefits.

¶ 30. Accordingly, we find that there was substantial evidence to support the Commission’s decision. We reverse and render the judgment of the circuit court and reinstate the Commission’s order granting benefits to Spencer.

¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS REVERSED AND RENDERED AND THE ORDER OF THE FULL COMMISSION IS REINSTATED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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


author: IRVING, J., for the Court. GRIFFIS, J.,

text:
    In the Matter of the ESTATE OF Shirley M. VOLMER. Joseph K. Volmer, Executor, Appellant, v. John A. Volmer and Eleanor J. Volmer Patterson, Appellees.
    No. 2003-CP-00118-COA.
    Court of Appeals of Mississippi.
    April 6, 2004.
    Joseph K. Volmer, appellant, pro se.
    George McFall, Southaven, attorney for appellee.

      Before McMILLIN, C.J., IRVING and MYERS, JJ.
   IRVING, J., for the Court.

¶ 1. Joseph K. Volmer appeals a judgment of the Chancery Court of DeSoto County which sanctioned him for filing a frivolous motion. In this appeal Volmer alleges that the chancellor violated and ignored Rules 12(a) and 41(a) of the Mississippi Rules of Civil Procedure.

¶ 2. We affirm in part as modified, and reverse and remand in part.

FACTS

¶ 3. In previous litigation involving a contest of the last will and testament of Shirley M. Volmer, the Chancery Court of DeSoto County found that Volmer used undue influence over Shirley in the execution of her will. As a result, the chancellor set the will aside, and Volmer, the proponent of the will, appealed. We affirmed the chancellor’s decision in Estate of Volmer v. Volmer, 832 So.2d 615 (Miss.App.2002) {Volmer I).

¶ 4. While Volmer I was on appeal to this Court, Volmer filed a motion for judgment notwithstanding the verdict, or in the alternative, for a new trial. Eleanor Patterson, Volmer’s sister, responded by filing a motion for sanctions. In her motion, she alleged that Volmer’s motion was untimely, asked that the motion be denied, and requested that Volmer be assessed all costs, including attorney fees and expenses. On the day of the filing of Patterson’s motion for sanctions, Volmer filed a pleading in an attempt to withdraw his previously-filed motion. The pleading contained the following averment: “Please take notice that Joseph Volmer, pursuant [sic] to Rule 50 b of the Mississippi Rules of Civil Procedure hereby withdraws and cancels his Motion for Judgement [sic] Notwithstanding the Verdict, or in the Alternative, for a New Trial filed in DeSoto County Chancery Court under Cause # 99-8-1053.”

¶ 5. On the day after Volmer filed his notice of withdrawal of his motion, Patterson’s attorney filed an attorney’s affidavit and an attorney’s report of fees and expenses. Approximately one month after this filing, the chancellor entered an order granting Rule 11 sanctions against Volmer for attorney fees and court costs in the amount of $1,425.97.

¶ 6. Volmer filed a notice of appeal, seeking a review of the sanctions granted by the chancellor. His notice of appeal is laden with disrespectful language to the Court. We, sua sponte, strike the disrespectful language, and address this matter further during our discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 7. Volmer first contends that the chancellor ignored Rule 12(a) of the Mississippi Rules of Civil Procedure. Although Vol-mer cites Rule 12(a), he does not explain how the rule is applicable to the case at hand. After a thorough review of the record, we cannot find any applicability of Rule 12(a) to the facts of this case. Therefore, we will not address it.

¶ 8. Volmer next contends that the chancellor ignored Rule 41(a) of the Mississippi Rules of Civil Procedure and claims that, since Patterson’s attorney never filed an answer to his motion for a new trial before Volmer filed with the chancery court a notice of dismissal, his voluntary dismissal was proper.

¶ 9. Rule 41(a) of the Mississippi Rules of Civil Procedure states that “an action may be dismissed by the plaintiff without order of the court: (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first oe-curs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action.” M.R.C.P. 41(a).

¶ 10. The comments to the rules state that the right of a voluntary dismissal is terminated by an answer or motion for summary judgment. Here, at the time of Volmer’s withdrawal of his motion, Patterson had not filed an answer. Although it is perhaps debatable whether Volmer’s motion for a new trial is considered an action within the meaning of Rule 41(a), we, nevertheless, find it significant that Volmer, operating pro se, sought a dismissal of his motion before any responsive pleading was filed by Patterson other than perhaps the filing of her motion for sanctions. We also note that it is not likely that Volmer even had notice of the filing of Patterson’s motion for sanctions before he attempted to withdraw his motion because the certificate of service on Patterson’s motion indicates that it was served on Volmer by mail. As previously observed, Volmer’s notice of withdrawal was filed on the same day as was Patterson’s motion for sanctions.

¶ 11. It may be debatable as to whether, on these facts, sanctions were proper. Nevertheless, we note that Vol-mer’s motion was very untimely, and he, although not a lawyer, was chargeable with knowledge that the trial court did not have jurisdiction over the case when he filed the motion because jurisdiction had been lost when he filed the notice of appeal in Volmer I. Consequently, we affirm the decision of the chancellor ordering sanctions. However, we find that the chancellor abused his discretion in ordering sanctions in the amount of $1,425.97. On these facts, we find that amount to be excessive; therefore, we reduce the amount to $250.

¶ 12. In the separate opinion by our colleague, the argument is made that we err in reducing the amount of the sanctions because “the chancellor’s reasoning was sound and his conclusion just.” Also, the separate opinion correctly notes that an affidavit and itemization of expenses were presented in support of the motion for sanctions. Nevertheless, it is not seriously debatable that the frivolousness of Volmer’s motion is readily apparent on the face of the motion; therefore, any justification of a legal bill in the amount of $1,425.97 in defense of the motion is hardly defensible. In this regard, we note that Patterson’s attorney claimed $870 in pro rata travel expenses for hearings on the motion and $195 for office conferences with Patterson.

¶ 13. We return to the matter of the disrespect shown the Court by Volmer by his use of disrespectful language contained in his notice of appeal. While we choose not to set forth the disrespectful language in this opinion, we strike the foul language and impose sanctions on Volmer in the amount of $250 for use of the disrespectful language.

¶ 14. In summary, we affirm the judgment of the chancery court as modified herein. We also impose an additional sanction on Volmer in the amount of $250 for the disrespectful language used in his notice of appeal and appellate brief. The $250 sanctions imposed here shall be paid to the clerk of this Court within thirty days of the date of this opinion, and the case is remanded to the trial court for execution on the monetary sanction imposed by that court as modified here.

¶ 15. THE JUDGMENT OF THE CHANCERY COURT OF DESOTO COUNTY IS AFFIRMED IN PART, AND REVERSED AND REMANDED IN PART FOR EXECUTION ON THE JUDGMENT AS MODIFIED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING, P.J., THOMAS, LEE, AND MYERS, JJ., CONCUR. GRIFFIS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY SOUTHWICK, P.J., BRIDGES AND CHANDLER, JJ.

GRIFFIS, J.,

Concurring in Part and Dissenting in Part:

¶ 16. I respectfully dissent from the majority’s finding that the chancellor abused his discretion in the amount of sanctions awarded. In all other matters, I concur.

¶ 17. Since the majority affirms the chancellor’s finding that sanctions were appropriate, I need not discuss that issue. However, the majority finds the amount awarded to be excessive and an abuse of his discretion. The chancellor ordered sanctions, in the form of attorney’s fees and expenses, payable to the attorney for Eleanor Patterson. The amount of the sanctions ordered was the amount of attorney’s fees and expenses expended in defense of Volmer’s frivolous motion. The chancellor relied on the attorney’s affidavit and itemization of expenses, which appear to be sufficient evidence to satisfy the necessary factors required by McKee v. McKee, 418 So.2d 764 (Miss.1982).

¶ 18. I find that the chancellor’s reasoning was sound and his conclusion just. Because the chancellor granted sanctions in an amount that was justified and established by evidence presented, I disagree with the majority’s conclusion that the chancellor’s award of $1,425.97 in sanctions was excessive and an abuse of his discretion. I would affirm the chancellor’s award.

SOUTHWICK, P.J., BRIDGES AND CHANDLER, JJ., JOIN THIS SEPARATE OPINION.


text:
    YOUNGE MECHANICAL, INC., Appellant, v. MAX FOOTE CONSTRUCTION CO., INC., and Fidelity & Deposit Company of Maryland, Appellees.
    No. 2002-CA-01943-COA.
    Court of Appeals of Mississippi.
    April 6, 2004.

      Thomas Buchanan Hood, Andrew J. Kil-patrick, Ridgeland, Matt Raymond Walker, attorneys for appellant.
    Christopher Solop, Jackson, attorney for appellees.
    Before McMILLIN, C.J., BRIDGES AND GRIFFIS, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Younge Mechanical, Inc. commenced this action against Max Foote Construction Co., Inc., Fidelity & Deposit Company of Maryland and AAIM Construction and Renovation, Inc. for payment of $13,325.00 for work performed. The circuit court granted summary judgment in favor of Max Foote and Fidelity. Younge appeals the court’s conclusion that it failed to provide adequate notice as required by Mississippi’s Little Miller Act, Mississippi Code Annotated Section 31-5-51 (Rev. 2000). Finding no error, we affirm.

FACTS

¶ 2. On February 7, 2000, Max Foote entered into a contract with the City of Clinton for the construction of a project known as the Southside Sewer Improvements. As required by Mississippi Code Annotated Section 31-5-51, also known as the Little Miller Act, Max Foote furnished a performance and payment bond from Fidelity to the City of Clinton. The bonds guaranteed Max Foote’s performance under the project and the payment of all labor and materials supplied to the job.

¶ 3. Max Foote then entered into a subcontract with AAIM to furnish a portion of the material, labor, and equipment to construct a portion of the project. AAIM entered a subcontract with Younge to perform the plumbing and HVAC portions of AAIM’s subcontract with Max Foote.

¶ 4. Younge performed the work required under its subcontract with AAIM. Younge last furnished labor or provided material for the project on June 28, 2001. However, AAIM failed to make the final payment of $13,325, despite having received payment from Max Foote.

¶ 5. On September 20, 2001, Richard B. Fain, Jr., as president of Younge, sent a letter to Querbes and Nelson, the bonding agent for Max Foote. In the letter, Mr. Fain stated:

We were the mechanical subcontractors to AAIM Construction & Renovation, Inc. on the Operation Building, a part of the above mentioned job. Being as your firm was Max Foote’s bonding company and AAIM Const, (a minority contractor) was not required to furnish a performance bond by Max Foote, we will have to expect either Max Foote or your firm to pay Younge Mechanical, Inc.
We have tried with no avail to get the final payment out of AAIM Const. We understand that Max Foote has paid AAIM all the moneys that they have coming to them.

On October 9, 2001, claims counsel for Fidelity responded. Fidelity, without waiver or prejudice to its rights, acknowledged receipt of Younge’s claim and requested additional information regarding the amount claimed. On March 7, 2002, Younge’s attorney sent a letter to AAIM, Max Foote and Fidelity’s claims counsel, demanding payment in the amount of $13,325. Thereafter, Younge commenced this action in the Circuit Court of Hinds County, Mississippi to collect the amounts owed Younge.

¶ 6. Max Foote and Fidelity filed a motion for summary judgment and alleged that Younge failed to meet the statutory notice requirement of Mississippi Code Annotated Section 31-5-51(3). The circuit court agreed and entered summary judgment. From this judgment, Younge now appeals.

STANDAKD OF REVIEW

¶ 7. This Court reviews the grant or denial of summary judgment de novo. Hardy v. Brock, 826 So.2d 71, 74 (Miss.2002) (citing Branning ex rel. Tucker v. Hinds Cmty. Coll. Dist., 743 So.2d 311, 314 (Miss.1999)). The burden of demonstrating that no genuine issue of fact exists is on the moving party. The non-movant is therefore given the benefit of the doubt. Williamson ex rel. Williamson v. Keith, 786 So.2d 390, 393 (Miss.2001). In conducting the de novo review, the Court considers all evidentiary matters before the trial court, including admissions in pleadings, answers to interrogatories, depositions, and affidavits. Lee v. Golden Triangle Planning & Dev. Dist., Inc., 797 So.2d 845, 847 (Miss.2001) (citing Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996)).

ANALYSIS

¶ 8. The Little Miller Act, codified at Mississippi Code Annotated Section 31-5-51, requires that a performance and payment bond, in the full amount of the contract, be provided by any person who enters into a formal contract with certain governmental entities for the construction, alteration, or repair of any public building or public work. The payment bond provision affords protections for certain laborers, materialmen and subcontractors.

¶ 9. Mississippi Code Annotated Section 31-5-51(3) provides that:

Any person having a direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing said payment bond shall have a right of action upon the said payment bond upon giving written notice to said contractor within ninety (90) days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the work was done or performed. Such notice shall be given in writing by the claimant to the contractor or surety at any place where the contractor or surety maintains an office or conducts business. No such action may be maintained by any person not having a direct contractual relationship ivith the contractor-principal, unless the notice required by this section shall have been given.

(emphasis added).

¶ 10. Based on the last sentence of this statute, the notice requirement is jurisdictional. Younge may not maintain its claim “unless the notice required by this section shall have been given.” The circuit court found that the required notice was not given. We agree.

¶ 11. Younge’s letter of September 20, 2002 was the only written notice sent within the required ninety day period. However, Younge admits that this letter did not state the amount due. Thus, Max Foote and Fidelity contend that it was insufficient to satisfy the written notice requirement of Mississippi Code Annotated Section 31-5-51(3).

¶ 12. Interpretation of the “substantial accuracy of the amount claimed” provision of Section 31-5-51(3) is an issue of first impression for the appellate courts of this state. Since Mississippi’s Little Miller Act is modeled after the Federal Miller Act, 40 U.S.C.A. §§ 270a-d (redesignated as 40 U.S.C. §§ 3131-33), the Mississippi Supreme Court has found federal court decisions interpreting the Federal Miller Act instructive and persuasive when interpreting Mississippi’s Little Miller Act. Key Constructors, Inc. v. H & M Gas, 537 So.2d 1318, 1321 (Miss.1989).

¶ 13. The Fifth Circuit has held that, while written notice requirements of the Federal Miller Act should be construed liberally, the critical elements of the written notice requirement must be satisfied. United States for the Use and Benefit of Jinks Lumber Co., Inc. v. Federal Ins. Co., 452 F.2d 485, 488 (5th Cir.1971). The court concluded that it is crucial that the notice state a claim directly against the general contractor, that the claim be stated with some specificity of the amount due, and that the claim specify the subcontractor allegedly in arrears. Id.

¶ 14. In United States of America for Use of Tonawanda Tank Transport Service, Inc. v. Hartford Casualty Insurance Company, 738 F.Supp. 44 (D.Mass.1990), the defendants filed a motion for summary judgment based upon the absence of any claim amount in the written notice to the contractor and surety. The court granted the motion for summary judgment and reasoned that the absence of an amount owed to the supplier could never satisfy the written notice requirement of stating the amount claimed with “substantial accuracy.” The court held:

Even though plaintiff correctly notes that the Miller Act should be construed liberally, this does not mean that there is total abandonment of the notice requirement. ... The February 19, 1988 letter was sorely lacking in the statutory mandated information. The amount owed was not mentioned, let alone stated with “substantial accuracy.”

Id. at 45.

¶ 15. Younge seeks to avoid the express requirement that the amount owed must be stated with substantial accuracy with three arguments. First, Younge claims that a telephone conversation on December 14, 2001 cured the defect in Younge’s original letter. Younge argues that in this conversation it disclosed the amount due to a representative of Max Foote. This communication was neither in writing nor within ninety days from the date Younge completed its work on the project, both of which are expressly required by the statute. Moreover, Younge fails to cite any legal authority to support its contention that an inadequate written notice can be cured after the expiration of the ninety day notice period.

¶ 16. Next, Younge argues that because Max Foote had notice of the claim amount because Max Foote previously issued joint checks to AAIM and Younge. However, the necessary documentation for the joint check payments was provided to Max Foote prior to the final work date of June 28, 2001. The Fifth Circuit has held that, to be sufficient, notice must be given between the final work date and the expiration of the ninety day window. J.D. Fields & Co. v. Gottfried Corp., 272 F.3d 692, 696 (5th Cir.2001). Accordingly, any notice given before the final date work was performed would be premature and insufficient to satisfy the notice requirement of Mississippi Code Annotated Section 31-5-51(3).

¶ 17. Finally, Younge argues that while the time constraint found in Mississippi Code Annotated Section 31-5-51(3) should be strictly construed, but the “content” requirements should not. Again, however, Younge cites no controlling legal authority to support this position. Instead, Younge relies on decisions from other jurisdictions. See School Board of Palm Beach County v. Fasano, 417 So.2d 1063 (Fla. 4th DCA 1982); Mills v. M & MA, 465 So.2d 1388 (Fla. 2nd DCA 1985); Blocklite v. Tull, 770 F.2d 862 (9th Cir.1985). None of these decisions deal with the circumstance where, as here, the amount claimed to be owed was omitted.

¶ 18. Mississippi Code Annotated Section 31-5-51(3) grants certain statutory rights for a sub-subcontractor, like Younge. However, to take advantage of such statutory rights, Younge must follow the statutory requirements. Younge was required to provide Max Foote: (1) written notice of the claim, (2) within ninety days from the date on which Younge last performed labor or furnished or supplied the materials, and (3) the amount of the claim with substantial accuracy. Here, there is no dispute that Younge failed to state any amount claimed. Therefore, failing to state an amount claimed, Younge cannot satisfy the statutory requirement that the written notice state “with substantial accuracy the amount claimed,” as required by Mississippi Code Annotated Section 31-5-51(3).

¶ 19. Accordingly, Younge may not maintain this action, and we affirm the circuit court’s entry of a summary judgment.

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

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


author: IRVING, J.,

text:
    Mardis CARTER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-02058-COA.
    Court of Appeals of Mississippi.
    April 13, 2004.

      David Lydell Tisdell, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.

      Before McMILLIN, C.J., IRVING and MYERS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Mardis Carter was convicted by a jury of the Circuit Court of Tunica County of sale of cocaine and sentenced to twelve years in the custody of the Mississippi Department of Corrections and five years of post-release supervision. Feeling aggrieved by this judgment, Carter appeals and asserts the following issues: (1) whether the circuit court erred in not granting him a new trial because several jurors failed to fully and properly respond to questions during voir dire, and (2) whether the evidence is insufficient to support the verdict or whether the verdict is against the overwhelming weight of the evidence.

¶ 2. Ascertaining no error, we affirm.

FACTS

¶ 3. On November 3, 2000, Noah Coffee, a narcotics officer, met with Lloyd Fleming, a confidential informant (Cl), at a pre-buy meeting in Tunica County, Mississippi to discuss a plan for buying illegal drugs in the Tunica area. The two men left the meeting location and cruised up and down Beeline Road where they eventually saw a blue Grand Am attempting to flag them down. A man who was riding in the Grand Am told the agents to meet him on the next street, “W” Street. When the agents arrived on “W” Street, the man exited the Grand Am and hopped into the back of the agents’ vehicle. Fleming asked the man for an eight ball, a large quantity of cocaine. The man responded that he did not have one and requested the agents to take him to an apartment complex so he could fulfill their request. After arriving at the apartments, the man exited the agents’ vehicle, but returned without being able to retrieve the eightball. Fleming asked the man whether he could get fifty dollars worth of cocaine, and the man affirmed that he could fulfill this request. Fleming asked the man if he had change for a hundred dollar bill, but the man stated that he did not have any change. After Fleming got change from a store, the man later handed him two rocks of crack cocaine and Fleming gave the man fifty dollars. After the man exited the agents’ vehicle, the agents called the man back to the vehicle’s passenger window. The man subsequently left the scene, and the agents proceeded back to the pre-buy location.

¶4. Several months later, members of the Tunica County Sheriff Department' viewed the video that was taken of the buy and identified the man in the videotape as Mardis Carter. Carter was indicted, tried and convicted, as a subsequent offender, for sale of a controlled substance. Following the filing and denial of several post-trial motions, Carter prosecuted this appeal.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Juror Responses during Voir Dire

¶ 5. Carter first argues that the trial court erred in refusing to grant his motion for a new trial based upon the failure of several jurors to respond to a question during voir dire concerning whether they knew him or members of his family. Counsel for Carter explains in his brief that he did not discover until after the guilty verdict was entered that juror number 7, Gloria Moore, juror 8, Sandy Hilliard, and juror number 12, Derrick Crawford, knew his client although they did not raise their hands when the question was asked.

¶ 6. Carter also complains that juror number 6, Jesse Clay, had discussed the case with him but failed and refused to advise the court of this fact during voir dire when members of the venire were asked by the court if any of them had heard the case discussed or heard anything about the facts. According to Carter, juror Jesse Clay, who was serving as a constable and deputy sheriff for Tunica County, discussed the case with him while Carter was incarcerated. at the Tunica County Jail. Carter argues that, because Clay failed to respond to this question, he was prejudiced in not being able to ask follow-up questions to discern whether Clay should have served as a juror.

¶ 7. Carter concludes that the trial court’s refusal to grant a new trial because of the jurors’ failure to properly and fully respond during voir dire to the two questions discussed in the preceding paragraphs constitutes reversible error. For the reasons discussed below, we disagree.

¶ 8. Our law is clear regarding the procedure to be followed when a juror fails to respond to questions during voir dire:

[WJhere a prospective juror in a criminal case fails to respond to a relevant, direct, and unambiguous question presented by defense counsel on voir dire, although having knowledge of the information sought to be elicited, the trial court should, upon motion for a new trial, determine whether the question propounded to the juror was (1) relevant to the voir dire examination; (2) whether it was unambiguous; and (3) whether the juror had substantial knowledge of the information sought to be elicited. If the trial court’s determination of these inquiries is in the affirmative, the court should then determine if prejudice to the defendant in selecting the jury reasonably could be inferred from the juror’s failure to respond. If prejudice reasonably could be inferred, then a new trial should be ordered.

Sewell v. State, 721 So.2d 129, 137(¶43) (Miss.1998) (citing Odom v. State, 355 So.2d 1381, 1383 (Miss.1978)).

¶ 9. In his order denying Carter’s motion for a new trial, the circuit judge found that:

The failure of any jurors to respond to questions on voir dire concerning their personal knowledge of the Defendant or any facts concerning the crime for which he was being tried was known to the Defendant at the time that the juror may have failed to answer the questions. The Defendant did not object to any such jurors at the time that his jury was empaneled and has waived his right to do so after learning the verdict of the jury.

¶ 10. There is ample evidence in the record to support the trial court’s finding that Carter knew at the time of voir dire that the jurors, about whom he later complained, knew him even though they had not raised their hands. Therefore, we agree with the circuit judge that Carter, by not objecting before the jury was empaneled, waived his right to complain later. See McNeal v. State, 617 So.2d 999, 1003 (Miss.1993).

¶ 11. As to the extent of Carter’s knowledge about the jurors who did not respond, the record reflects that, at the hearing of his motion for a new trial, he gave the following testimony:

Q. And were you sitting in the courtroom when a panel of jurors was sitting in the jury box and out in the audience?
A. Yes, sir.
Q. Okay. Did you have a list of all of those names, and did Mr. Tisdell have a list of all those names?
A. Yes, sir.
Q. Did you recognize the name of Mr. Buddy Clay?
A. Yes, sir.
Q. You, did?
A. (No audible response.)
Q. Okay. And I believe that’s referred to as Juror No. 6, Mr. Jessie Clay. Did you recognize him in the jury panel?
A. Yes, sir.
Q. Okay. And you knew that you had talked to him before?
A. Yes, sir.
Q. Okay. What about Gloria Moore, Juror No. 7? After she was picked in [sic] the jury, did you recognize her that day?
A. Yes, sir.
Q. And at that time, did you know that she was dating, I believe, a relative of yours?
A. Yes, sir.
Q. You knew that at the time, didn’t you?
A. Yes, sir.
Q. Now, then, Sandy Hilliard, when you were there — when you were there sitting at the defense table with Mr. Tisdell, you knew that you had worked with her, didn’t you?
A. Yes, sir.
Q. You recognized her, didn’t you?
A. Yes, sir.
Q. At that time you knew you had ridden in her car, didn’t you?
A. Yes, sir.
Q. Okay. What about Juror No. 12, Derrick Crawford? You knew before Mr. Tisdell selected him as a juror that you had gone somewhere with him, didn’t you?
A. Yes, sir.
Q. You knew that y’all had gone over to Atlanta — whether you rode together or not, you knew y’all had gone to Atlanta together to a wedding, didn’t you?
A. Yes, sir.
Q. Now, who was there to represent you?
A. Mr. Tisdell.
Q. Did you ever tell Mr. Tisdell anything about those four jurors?
A. What you mean? At that moment?
Q. When you were picking your jury with Mr. Tisdell, did you ever bring those comments up to him?
A. No, sir.
Q. You didn’t?
A. No, sir.
Q. But it’s your testimony here that all four of these individuals when this — when the Court, the State, and Mr. Tisdell asked all of these questions to these jurors, you never brought it up to Mr. Tisdell, did you?
A. No, sir.
Q. But you knew those four individuals, didn’t you?
A. Yes, sir.

¶ 12. It is immaterial that Carter’s trial counsel may not have known what Carter knew. Carter had an obligation to assist his counsel during the course of the trial. It seems clear to us that Carter thought these jurors, because of their familiarity with him, would be sympathetic to his cause. He chose to roll the dice and only after losing did he decide to reveal what he knew all along. As we stated earlier, a party who fails to object to the jury’s composition before it is empaneled waives any right to complain thereafter. See McNeal v. State, 617 So.2d at 1003. Here, Carter was present, along with his counsel, during voir dire, and saw and recognized all of the jurors in question, in-eluding juror Clay. Despite this fact, Carter stood mute and never told his lawyer or the court that the jurors in question had failed to respond to questions to which he knew they should have responded. Because he failed to object to the jurors before the jury was empaneled, he waived his right to complain.

¶ 13. Although we have found that Carter waived his right to complain about the composition of the jury, we want to be clear that we are not condoning the failure of the jurors to respond to the questions asked during voir dire. However, notwithstanding this failure on the part of the jurors, we, because of Carter’s deliberate decision to ignore the jurors’s lack of responsiveness to the questions, decline to find reversible error. We refuse to give him two bites at the apple.

¶ 14. Finally, although the point is academic, we point out that Carter is mistaken in his assertion that juror Gloria Moore did not indicate that she knew him. On the venire panel, Moore was listed as juror number 9, and her last name was spelled in the record as M-o-o-r-e; however, on the petit jury, she was listed as juror number 7 and her last name was spelled in the record as M-o-h-r. Juror number 9 on the venire panel did raise her hand when the question was asked. Her response to the question was that she lived near Carter and that she knew his family although she did not know him very well.

2. Motions for JNOV and New Trial

¶ 15. In his last assignment of error, Carter argues that there was insufficient evidence to support his guilty verdict and that the verdict is against the overwhelming weight of the evidence.

a. Sufficiency of the Evidence

¶ 16. 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, for a judgment notwithstanding the verdict and a request for a peremptory instruction is the same. A motion for a directed verdict, a judgment notwithstanding the verdict and a request for peremptory instruction all challenge the legal sufficiency of the evidence presented at trial. Id. “Since each requires consideration of the evidence before the court when made, [an appellate court] properly reviews the ruling on the last occasion 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)).

¶ 17. In the case sub judice, Carter was charged with the sale of a controlled substance. Both Fleming and Coffee testified that on November 3, 2000, Mardis Carter sold Fleming a substance alleged to be crack cocaine for fifty dollars. Fleming and Coffee explained that they then returned to the pre-buy meeting place where Coffee sealed and labeled the substance for chemical analysis. Coffee affirmed that he or his office maintained possession of the substance until it was submitted to the Mississippi Crime Lab.

¶ 18. Theresa Hickman, a forensic scientist with the Mississippi Crime Lab, testified that Coffee brought a substance into the lab on December 22, 2000, to be tested for the presence of a controlled substance. She explained that 0.33 grams of the substance was submitted to the lab and that she ran three tests on the substance. Based on the tests she conducted, Hickman opined that the substance was crack cocaine.

¶ 19. It is true, as Carter contends, that the State introduced a videotape which did not show the transfer of the contraband and exchange of money. However, the video camera did capture the audio portion of the transaction as well as the image of Carter when the agents called him back to the passenger window of the truck. Carter also points to what he characterizes as inconsistencies in the testimony of various witnesses produced by the State. That may be so, but the law is well settled in the jurisprudence of this state that it is the function of the jury to resolve any conflicts or inconsistencies in witnesses’ testimony. Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). Here, the jury resolve any conflicts in favor of the verdict. We see no reason to disturb the jury’s verdict.

b. New Trial

¶ 20. “A motion for new trial challenges the weight of the evidence. A reversal is warranted only if the lower court abused its discretion in denying a motion for new trial.” Edwards v. State, 800 So.2d 454, 464-65(¶16) (Miss.2001) (citing Sheffield v. State, 749 So.2d 123, 127(¶ 16) (Miss.1999)). “This Court will accept 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 v. State, 818 So.2d 1099, 1112(34) (Miss.2002)(citing Edwards, 800 So.2d at 465(¶25)). 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(1120) (Miss.2002).

¶21. 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 Carter’s motion for a new trial.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF TWELVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS’ POST-RELEASE SUPERVISION AND FINE OF $5,000 AND RESTITUTION, IF ANY, IS AFFIRMED. THE SENTENCE IMPOSED IN THIS CAUSE SHALL RUN CONCURRENTLY WITH THE SENTENCES IMPOSED IN CAUSE NO. 2001-00228 AND CAUSE NO. 2001-00239. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TUNICA COUNTY.

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