author: LEE, J., for the Court.

text:
    Curtis HOYE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01674-COA.
    Court of Appeals of Mississippi.
    March 9, 2004.
    Pamela A. Ferrington, Natchez, attorney for appellant.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and CHANDLER, JJ.
   LEE, J., for the Court.

PROCEDURAL HISTORY

¶ 1. On November 2, 2001, a jury in the Circuit Court of Adams County found Curtis Hoye guilty of aggravated assault. Hoye was sentenced to serve ten years in the custody of the Mississippi Department of Corrections. Hoye now perfects his appeal to this Court, asserting that the trial court erred in failing to grant the motion for directed verdict because the evidence was insufficient to support the conviction and that the State failed to proved an essential element of the crime charged. Finding Hoye’s issues to be without merit, we affirm.

FACTS

¶ 2. Although there was some conflicting testimony, the pertinent facts are as follows. On the night of November 4, 2000, Hoye and his girlfriend, Gertrude Gran-son, were at Ms. B’s Club on Emerald Mound Road in Adams County. Hoye and Granson had an argument and Granson attempted to leave. In the parking lot of the club, as Hoye was attempting to prevent Granson from leaving, Elliston Fitzgerald approached and told Hoye to leave Granson alone. Fitzgerald testified that he heard a woman yelling for help, saw Hoye “beating on” Granson, and told him to stop. Granson ran back into the club to call the police. Hoye immediately ran for his truck, retrieved a metal object, and charged at Fitzgerald.

¶ 3. Hoye proceeded to attack Fitzgerald with the metal object, hitting him repeatedly on the head, arms, and torso. Once Fitzgerald fell to the ground, Hoye continued to hit him with the metal object. Alvin Frisby and Virgil Gibbs each tried to prevent Hoye from further attacking Fitzgerald. Frisby and Gibbs testified that the metal object Hoye was using looked like a jack iron or a four-way lug wrench. Various witnesses testified that Fitzgerald was unarmed. Hoye tried to claim self-defense by introducing a witness, Marcus Kaho, who stated that Fitzgerald was the aggressor and he was holding a knife. However, one of the State’s witnesses stated that he had not seen Marcus Kaho on the scene that particular night.

¶ 4. After the altercation, Fitzgerald went to the emergency room where he was treated for lacerations to his eye area and injuries to his head. Fitzgerald was later transported to the University Medical Center in Jackson. Ultimately, Fitzgerald had to have surgery on his nose, some reconstructive surgery on his face, and stitches on various parts of his body.

DISCUSSION OF ISSUES

I. DID THE TRIAL COURT ERR IN FAILING TO GRANT HOYE’S MOTION FOR A DIRECTED VERDICT BECAUSE THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE CONVICTION?

II. DID THE STATE PROVE THE ESSENTIAL ELEMENTS OF THE CRIME CHARGED?

¶ 5. As both of Hoye’s issues deal with the sufficiency of the evidence, we will discuss them together. Our standard of review concerning sufficiency of the evidence is as follows: the trial judge is required to accept as true all of the evidence favorable to the State, including any reasonable inferences that may be drawn therefrom. Wall v. State, 718 So.2d 1107(¶ 15) (Miss.1998). If, under this standard, sufficient evidence to support the jury’s verdict of guilty exists, the motion for a directed verdict should be denied. Isaac v. State, 645 So.2d 903, 907 (Miss.1994). The court will reverse only when reasonable and fair-minded jurors could only find the accused not guilty. Wetz v. State, 503 So.2d 803, 808 (Miss.1987). Furthermore, it is within the discretion of the jury to accept or reject testimony by a witness, and the jury “may give consideration to all inferences flowing from the testimony.” Mangum v. State, 762 So.2d 337(¶ 12) (Miss.2000) (quoting Grooms v. State, 357 So.2d 292, 295 (Miss.1978)).

¶ 6. We find that sufficient evidence existed for the jury to find Hoye guilty of aggravated assault. Numerous witnesses testified that Hoye retrieved a metal object from his car, that he attacked Fitzgerald with this weapon, that Fitzgerald was unarmed, that Fitzgerald did not attempt to fight back, and that two onlookers each attempted to stop Hoye. Frisby testified that he tried to stop Hoye, but Hoye kept hitting Fitzgerald. Gibbs then testified that he pulled Hoye from Fitzgerald, after which, Hoye finally left the scene.

¶ 7. As to the weapon used by Hoye, Frisby testified that it looked like a jack iron or a four-way lug wrench. Frisby also stated that Hoye was beating Fitzgerald on the head with this weapon and that his head was bleeding freely. Gibbs testified that Hoye was using a four-way lug wrench to beat Fitzgerald. Brenda Mar-saw, the owner of the club, went outside and saw Hoye beating Fitzgerald with “some type of metal, similar like a cross or something.” Gertrude Johnson also witnessed the entire altercation and stated that she saw Hoye knock down Fitzgerald, go back to his car to get a “four-way lug wrench that you take the lugs off the tires with” and begin beating Fitzgerald with this wrench.

¶ 8. Hoye did attempt to make a case of self-defense by testifying, along with Marcus Kaho, that Fitzgerald was armed with a knife and was advancing upon him. Hoye stated that he grabbed a bean stick and attempted to defend himself with it. However, in accepting as true all evidence favorable to the State and finding that there was sufficient evidence to deny the motion for a directed verdict, we cannot find that reasonable and fair-minded jurors could only find Hoye not guilty. Therefore, we affirm.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF ADAMS COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO ADAMS COUNTY.

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


source: Caselaw Access Project

author: THOMAS, J., for the Court.

license: Public Domain

text:
    John McMINN, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-CA-01939-COA.
    Court of Appeals of Mississippi.
    March 9, 2004.

      Robert S. Mink, University, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and GRIFFIS, JJ.
   THOMAS, J., for the Court.

¶ 1. John McMinn filed a motion for post-conviction relief which was denied by the Hinds County Circuit Court. Aggrieved, McMinn asserts the following issue on appeal:

I. THE TRIAL COURT ERRED IN SENTENCING MCMINN TO A TERM OF IMPRISONMENT MORE THAN THREE TIMES THE AVERAGE TERM IMPOSED ON OTHER, SIMILARLY SITUATED DEFENDANTS AND FAILED TO STATE ANY REASONS FOR THE SENTENCE.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In November 1997, a police informant bought methamphetamine from John McMinn. The informant made two more methamphetamine purchases from McMinn over the next twenty days. McMinn was obtaining the methamphetamine from Angela Sherman and Charles Campbell. Several different indictments arose out of the sales. John McMinn was charged with three counts of the sale of crystal methamphetamine, a controlled substance and two counts of conspiracy. McMinn' pled guilty to one count of sale and one count of conspiracy and was sentenced to two ten-year concurrent sentences to be followed by two concurrent terms of post-release supervision of two and four years respectively. Charles Campbell pled guilty to one count of possession and was sentenced to three years. Angela Sherman pled guilty to one count of sale and one count of conspiracy and was sentenced to four years to serve followed by three years post-release supervision.

¶ 3. At the sentencing hearing, the trial court was informed that McMinn was on active reserve with the United States Marine Corps and that he had previously been employed by the Hinds County Sheriffs Department although he was not at the time the charges were incurred. McMinn failed to appear for his first hearing on change of plea because he had fled the country. McMinn was arrested in Louisiana while going through customs upon his return to the U.S. McMinn had no prior felony convictions, but did have one non-adjudication for trespass in Florida, one juvenile conviction for auto burglary, and one aggravated assault charge that was dropped.

¶ 4. McMinn filed a motion for post-conviction relief asserting that his sentence, although less than the statutory maximum, was excessive and much greater than both Campbell and Sherman and other similarly situated defendants. McMinn performed research that reviewed 1,554 criminal indictments from the Hinds County Circuit Court in drug cases carrying máximums of thirty years or more. According to McMinn, only one received a sentence equivalent to his, and the average was approximately one-third of the sentence he received. The trial court denied McMinn’s motion without findings of fact.

ANALYSIS

I. DID THE TRIAL COURT ERR IN SENTENCING MCMINN TO A TERM OF IMPRISONMENT MORE THAN THREE TIMES THE AVERAGE TERM IMPOSED ON OTHER SIMILARLY SITUATED DEFENDANTS AND FAILING TO STATE ANY REASONS FOR THE SENTENCE?

¶ 5. McMinn asserts that the trial court erred in sentencing him to two concurrent ten year terms, a sentence that he contends is excessive and greater than other similarly situated defendants in Hinds County. The State points out that McMinn failed to object to the sentence imposed upon him by the trial court and that McMinn is attempting to attack his conspiracy and sale convictions in one post-conviction filing which is not permitted under Mississippi Code Annotated § 99-39-9(2) (Rev.2000). Therefore, McMinn’s claim was not properly presented and is procedurally barred.

¶ 6. Notwithstanding the procedural bar, the trial court committed no error in denying relief on McMinn’s motion. McMinn could have received up to thirty years for the sale of methamphetamine. Miss.Code Ann. § 41-29-139(b)(l) (Rev.2000). He could have received up to twenty years for his conviction of conspiracy. Miss.Code Ann. § 97 — 1—1(h) (Rev.2000). The trial court could have ordered for these sentences to be served consecutively, for a total of fifty years in the custody of the Mississippi Department of Corrections. McMinn’s sentence is only one-fifth of the maximum allowed by Mississippi law for the crimes to which he pled guilty. The sentences imposed were well within statutory limits, and are therefore beyond this Court’s authority to disturb. Hoops v. State, 681 So.2d 521, 537-38 (Miss.1996).

¶ 7. McMinn did not meet his burden to establish evidence regarding sentences for sale of methamphetamine and conspiracy in other jurisdictions. One distinguishing factor is that McMinn fled the jurisdiction while his trial and sentencing were pending. 'Although he tries to downplay this fact by stating that he had returned to the country in order to turn himself over to authorities, there is no evidence of this fact other than statements made in the appellant’s brief. The fact remains that he was apprehended by customs agents immediately upon his return. The fact that he fled alone is sufficient for the sentencing court to impose a stiffer sentence than would otherwise be imposed. Sullivan v. State, 749 So.2d 983, 996 (Miss.1999). McMinn also admits in his brief that he sold the methamphetamine in all three instances to the police informant. The record is less clear about the roles played by the other named individuals. Although they no doubt played a role, McMinn’s role was “front and center” and he indeed was named in more indictments than the other two offenders.

¶ 8. This issue is without merit.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    James G. BARTON, Appellant v. The ESTATE OF Richard E. BUCKLEY, M.D., Deceased, Appellee.
    No. 2003-CA-00376-COA.
    Court of Appeals of Mississippi.
    March 9, 2004.

      Michael A. Boland, attorney for appellant.
    Paul J. Deleambre, Gulfport, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and CHANDLER, JJ.
   LEE, J., for the Court.

PROCEDURAL HISTORY

¶ 1. On December 8, 1993, James Barton filed a medical malpractice action in the Circuit Court of Harrison County, alleging Dr. Richard E. Buckley was negligent and failed to meet the minimum standard of care with regard to informed consent for surgical treatment and in his treatment of the patient post-operatively. Dr. Buckley died on July 21, 1998. An amended complaint adding Memorial Hospital at Gulf-port as a defendant was filed on March 6, 1998; however, MHG was dismissed with prejudice on July 6, 2000. Dr. Buckley’s estate filed a motion for summary judgment on October 24, 2002. The motion was granted on January 16, 2003, and a final judgment of dismissal was entered on February 26, 2003. Barton now appeals to this Court asserting that the trial court erred in granting the motion for summary judgment in favor of Dr. Buckley’s estate.

FACTS

¶ 2. Barton was first seen by Dr. Buckley on October 14,1988, with complaints of back pain sustained when he fell at work in September of that year. X-rays taken of his lumbar spine revealed mild degenerative changes of the lumbar spine with specific changes of the spine at L5-S1. At-that time Dr. Buckley diagnosed Barton with an acute lumbosacral strain.

¶ 3. In October 1991, Barton suffered an on-the-job back injury and went to the emergency room where he was seen by Dr. Buckley. After obtaining a CT scan and an MRI of Barton’s lumbar spine, Dr. Buckley noted that they revealed degenerative and hypotrophic facet joint changes at the L4-5 and L5-S1 levels, spinal steno-sis, extensive degenerative disc disease with herniations, and evidence of nerve root compressions. Barton was soon discharged and saw Dr. Buckley again on November 6, 1991, for a follow-up consultation. At this consultation a myelogram and post-myelogram CT were performed. The myelogram demonstrated spinal sten-osis and possible herniated disc, as well as disc bulges. The post-myelogram CT revealed a posterior bulge of the L3-4 disc, causing a tight spinal canal, a focal herniation of the L4-5 disc on the right with spinal stenosis and a posterior bulge protrusion of the L5-S1 disc.

¶ 4. At a later visit on November 27, 1991, Dr. Buckley showed the results to Barton and recommended surgery. Dr. Buckley described the surgery and informed Barton of certain risks associated with the surgery. Barton was admitted to MHG on December 12, 1991, and signed a form consenting to the surgery and acknowledging that the risks of surgery had been explained to him by Dr. Buckley. Dr. Buckley performed a total laminecto-my with bilateral foraminotomy at L3-4 and L4-5 with exploration of the L3-4 and L4-5 disc spaces. After the operation an epidural hematoma formed at the surgery site causing a build up of pressure upon Barton’s spinal cord and nerves. When the presence of the hematoma was confirmed, Dr. Buckley removed the hemato-ma. Barton suffered some nerve damage as a result of the hematoma, which manifested itself as a neurogenic bladder, impotence, and incontinence, as well as weakness of his lower extremities.

DISCUSSION OF ISSUE

I. DID THE TRIAL COURT ERR IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DR. BUCKLEY’S ESTATE?

¶ 5. In his only issue, Barton contends that the trial court erred in granting summary judgment in favor of Dr. Buckley’s estate. Specifically, Barton claims that there was a factual dispute concerning whether Dr. Buckley gave any warnings at all and whether Dr. Buckley’s warnings, if any, met the applicable standard of care. In reviewing a grant of summary judgment, this Court employs a de novo standard. If the pleadings, depositions, answers to interrogatories and admissions, together with any affidavits, show there is no genuine issue of material fact, the moving party is entitled to judgment as a matter of law and summary judgment should be entered for the movant. Boyles v. Schlumberger Technology Corp., 832 So.2d 503(115) (Miss.2002).

¶ 6. When an individual claims that a physician has breached the duty to obtain the patient’s informed consent the familiar tort elements apply: duty, breach, causation, and damage. Phillips By and Through Phillips v. Hull, 516 So.2d 488, 492 (Miss.1987). If there is a physician-patient relationship, the doctor automatically has the duty to inform and procure the consent of the patient as it relates to the proposed treatment. Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346, 1363 (Miss.1990). However, in proving a breach of this duty, the patient must make more than mere allegations to substantiate that the physician did not obtain informed consent. Id. See also Hill v. Warden, 796 So.2d 276 (Miss.Ct.App.2001). Once proof of duty and breach of that duty is provided, the plaintiff is required to produce evidence of two sub-elements of causation. First, the plaintiff must show that a reasonable patient would have withheld consent had he been properly informed of the risks, alternatives, and so forth. Phillips v. Hull, 516 So.2d 488, 493 (Miss.1987). And second, the plaintiff must show that the treatment was the proximate cause of the worsened condition. That is, the plaintiff must show that he would have not been injured had the appropriate standard of care been exercised. Id.

¶ 7. Although Barton claims that Dr. Buckley did not inform him of the risks of surgery, Barton signed a consent to operation form which authorized Dr. Buckley to perform a decompression lumbar lami-nectomy. The form also stated that the procedure was explained to Barton by Dr. Buckley and that the “nature and consequences of the procedure” were explained as well. According to Palmer, this document can constitute some evidence that informed consent was obtained. Palmer, 564 So.2d at 1364. In Phillips, the supreme court reversed on the issue of informed consent because there was no record of any form which indicated that the patient’s consent was in fact an informed consent. Phillips, 516 So.2d at 494. Furthermore, the court stated, “In the absence of any documentary evidence substantiating [the physician’s] claim of having obtained [the patient’s] ‘informed’ consent for the operation, this Court does not find that ‘the strength of [the mov-ant’s] showing is such that [he] is entitled to summary judgment as a matter of law.’ ” Id. (citation omitted). Pursuant to Palmer, we find that Barton’s allegation of lack of informed consent is insufficient rebuttal in light of Dr. Buckley’s introduction of the form indicating that Barton’s informed consent was obtained.

¶ 8. Even though Barton denies any warning of the risks of surgery, he argues that if a warning of the risks was given prior to his surgery, then it was inadequate and failed to meet the standard of care. Barton contends that had he known of certain specific risks, such as neurogenic bladder, impotence, and incontinence, then he would not have undergone the surgery. However, Barton fails to show that a reasonable patient, once informed of the risks, would have withheld consent, only that he would have withheld his consent. Barton’s own expert witness, Dr. Jarrott, testified that “I don’t think it would be reasonable to expect the average patient to refuse surgery solely on the basis of a risk of neurogenic bladder.” Furthermore, Barton produced no evidence of the appropriate standard of care at the time of the surgery. Dr. Jarrott testified that, although discussing specific risks of the surgery is a component of the standard of care at the present time, it was probably not required in Mississippi as early as December 1991. Dr. Jarrott stated that the informed consent was not expanded to include specific discussion of neurogenic bladder and other nerve damage until after the facts arose in the case sub judice.

¶ 9. Both Dr. Jarrott and Buckley’s expert witness, Dr. Bazzone, testified that, if left untreated, Barton’s spinal stenosis would have progressed to the point that Barton would probably have the same condition today if he had not had the surgery. Dr. Bazzone said if Barton had not undergone surgery at that time, then, “to a reasonable degree of medical certainty, he would at least be paraparetic and perhaps paraplegic.”

¶ 10. We cannot find that Barton produced the evidence to establish that Dr. Buckley breached his duty or failed to exercise the appropriate standard of care. Barton has failed to raise a genuine issue of material fact and, therefore, we find that the trial court did not err in granting the motion for summary judgment.

¶ 11. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

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


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

text:
    Gloria MOODY, Appellant v. HARRISON COUNTY BOARD OF SUPERVISORS, Appellee.
    No. 2002-CA-01399-COA.
    Court of Appeals of Mississippi.
    March 9, 2004.
    Harrison County Circuit Court, Hon. Jerry 0. Terry, Sr., J.
    Ricky 0. Amos, Gulfport, attorney for appellant.
    Karen J. Young, Gulfport, attorney for appellee.
    Before McMILLIN, C.J., IRVING and MYERS, JJ.
   McMILLIN, C.J., for the Court.

¶ 1. This matter is before this Court on a notice of appeal filed by Gloria Moody, the plaintiff in the action below, indicating her desire to obtain appellate review of a decision by the trial court to grant summary judgment in favor of the Harrison County Board of Supervisors, one of two named defendants in her complaint. The action was commenced as a personal injury action against Harrison County and the Mississippi Department of Human Services and arose out of an incident where Moody claims she was injured when a chair collapsed under her while she was in the DHS office in Harrison County.

¶2. At the outset of our review, we obseive this Court’s obligation to consider issues affecting its jurisdiction to decide matters brought before it whether or not the parties raise the issue. E.g., Gilchrist v. Veach, 754 So.2d 1172(¶ 5) (Miss.2000).

¶ 3. In furtherance of that obligation, the Court notes the following circumstances. There are two defendants in this action; namely, the Harrison County Board of Supervisors and the Mississippi Department of Human Services. The Mississippi Department of Human Services has appeared separately in the proceeding and is represented by separate counsel. The motion for summary judgment was filed solely by the Harrison County Board of Supervisors and was not joined in by the Mississippi Department of Human Services. The motion, in fact, raises issues that have no particular relevance regarding the legitimacy of Moody’s claim against the Department of Human Services. The order granting summary judgment applies, on its face, solely to the Harrison County Board of Supervisors. The order does not make an express determination that there is no just reason for delay in entering the order as a final judgment as to the Harrison County Board of Supervisors nor does it expressly direct the entry of this order as a final judgment. Under the provisions of Mississippi Rule of Civil Procedure 54(b), the order is subject to revision at any time” by the circuit court and, thus, is interlocutory in nature. Interlocutory orders are not appealable unless express permission to do so has been obtained under the provisions of Mississippi Rule of Appellate Procedure 5. M.R.A.P. 5; Stringer v. Am. Bankers Ins. Co. of Florida, 822 So.2d 1011(1113) (Miss.Ct.App.2002). No such permission for an interlocutory appeal has been sought or obtained in this proceeding.

¶ 4. As recently as October 2002, the Mississippi Supreme Court has said, in a similar situation that “[bjecause the order of dismissal neither explicitly dismissed all of the defendants in the action, nor was it certified as a final judgment under M.R.C.P. 54(b), the appeal is not properly before the Court and must be dismissed.” Salts v. Gulf Nat’l. Life Ins. Co., 849 So.2d 848(¶ 2) (Miss.2002).

¶ 5. THIS APPEAL IS DISMISSED FOR LACK OF JURISDICTION AND THE MATTER IS REMANDED TO THE CIRCUIT COURT OF HARRISON COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THE TERMS OF THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: KING, P.J., for the Court.

text:
    Robert Nelson SMITH, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-01477-COA.
    Court of Appeals of Mississippi.
    March 9, 2004.
    Robert H. Koon, Gulfport, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before KING, P.J., LEE and CHANDLER, JJ.
   KING, P.J., for the Court.

¶ 1. Robert Nelson Smith was convicted by the Circuit Court of Harrison County of the unlawful touching of a child for lustful purposes. He was sentenced to serve a term of seven years in the custody of the Mississippi Department of Corrections. Aggrieved by his conviction, Smith raises the following issue on appeal, which we quote verbatim:

The Court erred in not granting defendant’s motion for directed verdict, motion for a new trial or in the alternative jnov. The evidence was insufficient to convict the defendant of touching of a child under the age of sixteen for lustful purposes. The evidence was against the overwhelming weight of the credible.

FACTS

¶ 2. On August 25, 2000, Tina, who was nine years old at the time, went to the home of her friend, Lisa, age eleven at the time, in Gulfport. At approximately 7:30 p.m. that evening, Tina and Lisa walked to a nearby store with Smith who lived with Lisa and her mother.

¶ 3. When the three arrived at the store, Smith purchased some beer. According to Lisa, she left Tina and Smith at the store and went back home. Tina stated that, while at the store she asked Smith for a cold drink. According to Tina, they went behind the store, where Smith made her drink beer. She indicated that Smith kissed her on the lips and touched her breasts. Smith asked Tina if it felt good and told her, “Don’t tell nobody.”

¶4. Tina cried, left Smith, and went inside the store and talked with Regina Shaheed, a cashier at the store with whom she was familiar. Tina told Shaheed that Smith made her drink beer, kissed her, and touched her breasts.

¶ 5. Ms. Shaheed testified that Tina held her breasts as she described where Smith touched her. When Shaheed confronted Smith regarding the allegations, he denied having made Tina drink beer. Shaheed then took Tina back to Lisa’s house.

¶ 6. Tina’s mother testified that when she picked up her daughter from Lisa’s house, Tina was visibly upset and stated that Smith had touched her breasts.

¶ 7. Officer Mickey Wallis of the Gulf-port Police Department testified that Tina and her mother came into the station and filed a report which stated that Smith made her drink beer, kissed her, and touched her breasts.

¶ 8. At trial, Smith testified that Tina and Lisa went to the store with him, he purchased some beer, and Tina asked him for his change. Smith indicated that after he gave it to her, he went outside, sat down, and began to drink his beer. Smith testified that he touched Tina, but that it was not in a sexual way. He indicated that he touched her because she had been through a serious operation and had a pacemaker.

¶ 9. Tina’s mother testified that Tina had a heart transplant when she was two and a half years old and that she had never had a pacemaker.

¶ 10. At the conclusion of the State’s case, Smith moved for a directed verdict which was denied. The jury found Smith guilty of touching a child for lustful purposes. Smith then made a motion for a judgment notwithstanding the verdict, which was denied.

ISSUES AND ANALYSIS

I.

Whether the evidence was sufficient to support a verdict of guilty.

¶ 11. Smith claims that the State did not prove that he was guilty beyond a reasonable doubt. While Smith admits that he touched Tina, he claims that it was not sexual.

¶ 12. When challenging the sufficiency of the evidence, this Court adheres to the following standard:

In appeals from an overruled motion for JNOV the sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the. State. The credible evidence consistent with Smith’s guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Matters regarding the weight and credibility of the evidence are to be resolved by the jury. We are authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

Grihim v. State, 760 So.2d 865(¶ 6) (Miss.Ct.App.2000) (citations omitted).

¶ 13. Smith was charged with the unlawful touching of a child for lustful purposes, pursuant to Mississippi Code Annotated Section 97-5-23(1) (Rev.2000). The State was required to prove the following elements: (1) that Smith was above the age of eighteen when the act occurred, (2) that he touched Tina for the purpose of gratifying his lust or depraved licentious sexual desire by either handling, touching, or rubbing Tina with his hands or any part of his body or member, and (3) that Tina was under the age of sixteen when the alleged incident occurred.

¶ 14. The first element was established through the testimony of Officer Rosario Ing of the Gulfport Police Department, who testified that Smith’s date of birth was April 23, 1957, which meant that he was forty-three at the time of the alleged incident. The second element required that the State prove that Smith touched Tina to gratify his lust or depraved licentious sexual desires by either handling, touching, or rubbing Tina with his hands or any part of his body or member. The record reflects that Tina testified that Smith touched her breasts, asked her if it felt good, and told her not to tell anyone. Smith acknowledged having touched Tina but denied any lustful intent. This presented a clear issue of disputed fact to be resolved by the jury. Evans v. State, 159 Miss. 561, 566, 132 So. 563, 564 (1931). If the jury believed Tina, then the second element was established.

¶ 15. The third element that Tina was under the age of sixteen at the time of the alleged touching was established by her testimony. At the trial in August of 2002, Tina stated that she was eleven years old. She asserted that the incident occurred in August of'2000; therefore, she was under the age of sixteen at that time.

¶ 16. This Court must accept the evidence in the light most favorable to the verdict and in doing so determines that there was sufficient evidence presented through the testimony of the witnesses to support the State’s case and allow the jury to decide if Smith was guilty of the touching of a child for lustful purposes. This issue lacks merit.

II.

Whether the trial court erred in denying Smith’s motion for a new trial.

¶ 17. Smith contends that the trial court erred by denying his motion for a new trial because the verdict of the jury was against the overwhelming weight of the evidence.

¶ 18. The Court’s standard of review for claims that a judgment is against the overwhelming weight of the evidence is as follows:

In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal. As such, if the verdict is against the overwhelming weight of the evidence, then a new trial is proper.

Jackson v. State, 815 So.2d 1196(¶ 15) (Miss.2002) (citation omitted).

¶ 19. The State presented evidence through the testimony of witnesses that Smith kissed Tina on her lips, touched her breasts, asked her if it felt good, and told her not to tell anyone. Smith claims that this is not what happened. Factual disputes are properly resolved by the jury and do not mandate a new trial. Temple v. State, 498 So.2d 379, 382 (Miss.1986). The jury is the sole judge of the credibility of witnesses, and the jury’s decision based on conflicting evidence will not be set aside where there is substantial and believable evidence supporting the verdict. Lloyd v. State, 755 So.2d 12(¶ 11) (Miss.Ct.App.1999). Therefore, there was no abuse of discretion in the denial of a new trial and this issue is without merit.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF TOUCHING OF A CHILD FOR LUSTFUL PURPOSES AND SENTENCE OF SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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

      . Due to the nature of the offense, the victim's real name is not being used for purposes of this opinion.

      . Due to the nature of the offense, the real name of the victim’s friend is not being used for purposes of this opinion either.

      . Mississippi Code Annotated Section 97-5-23(1) (Rev.2000) provides: (1) Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child under the age of sixteen (16) years, with or without the child's consent, or a mentally defective, mentally incapacitated or physically helpless person as defined in Section 97-3-97, shall be guilty of a felony and, upon conviction thereof, shall be fined in a sum not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or be committed to the custody of the State Department of Corrections not less than two (2) years nor more than fifteen (15) years, or be punished by both such fine and imprisonment, at the discretion of the court.


text:
    Keith BOGGANS, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-01331-COA.
    Court of Appeals of Mississippi.
    March 9, 2004.

      Walter E. Wood, Ridgeland, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before McMILLIN, C.J., IRVING and MYERS, JJ.
   McMILLIN, C.J., for the Court.

¶ 1. Keith Boggans was convicted by a Madison County Circuit Court jury on three counts of armed robbery arising out of an incident that occurred in a Hardee’s Restaurant in that county. Boggans has appealed his conviction and asserts three grounds to have his conviction overturned, (a) He claims that the trial court erred when it failed to suppress his post-detention statement to investigating officers implicating him in the crimes, (b) He contends that the court erred in denying his mistrial motion when it was pointed out to the court, after trial had commenced, that the jury had not been sworn in using the special oath required in capital cases, (c) Finally, he contends that the court erred in denying him a new trial on the ground that the verdicts of guilty were against the weight of the evidence. We find no reversible error and affirm.

I.

Facts

¶ 2. Two individuals robbed three employees of Hardee’s Restaurant located in Madison County on County Line Road at gunpoint in the early morning hours of April 3, 2000. Acting on information .provided by witnesses, police officers, within minutes of the robbery, pulled over a vehicle being driven by Boggans. The two individuals who had actually committed the robberies were in the back seat along with the money obtained in the robbery.

¶ 3. Acting on the theory that Boggans aided and abetted the robbery by acting as driver of the get-away vehicle, the State indicted him, along with the other two individuals, for armed robbery. After his arrest, Boggans gave a statement to an investigating officer in which he essentially admitted his involvement in the crime. He later sought to have the statement suppressed in a hearing held prior to commencement of his trial but was unsuccessful in doing so.

¶4. Boggans subsequently testified in his own defense at trial. He claimed to have no knowledge of the real reason the two individuals had gone into the restaurant, saying that they had told him they were going to use the restroom.. He testified before the jury that he gave the incriminating statement because he felt it was the only way that he would be permitted to use a telephone to alert relatives to his predicament and enlist their assistance in obtaining his release on bail.

¶ 5. The jury found him guilty on three counts and this appeal ensued.

II.

Failure to Suppress Confession

¶ 6. Boggans’s contention was that his .statement was involuntary as having been obtained through coercive techniques that included promises of leniency if he would confess. ■ At the suppression hearing, the officer who took the statement testified that he had informed Boggans that if he chose to give a voluntary statement that fact would be reported to the District Attorney’s office. The officer repeatedly denied having promised any form of leniency in exchange for the statement or having threatened Boggans with harsher treatment if he declined to give a statement. He testified to having thoroughly reviewed all of Boggans’s rights commonly known as Miranda rights and that, after indicating his understanding of those rights, Boggans declared his desire to waive those rights and offer a voluntary statement. Boggans elected not to testify at the suppression hearing. The circuit court found that the State had established beyond a reasonable doubt that Boggans’ confession was freely and voluntarily offered and was not produced by unconstitutional coercive tactics employed by law enforcement.

¶ 7. We review challenges to admissibility of confessions on an abuse of discretion standard. Smith v. State, 737 So.2d 377(¶ 11) (Miss.Ct.App.1998). The circuit court sits as trier of fact and is in the best position to make the necessary decisions as to witness credibility that are often critical in such hearings. Id. at (¶ 12).

¶ 8. There is authority for the proposition that a promise of lenient treatment in exchange for making an incriminating statement to investigating officers constitutes the sort of coercion that destroys the free and voluntary nature of the resulting admissions, rendering them inadmissible under the Fifth Amendment, which prevents a suspect from being compelled to be a witness against himself. Carley v. State, 739 So.2d 1046(¶16) (Miss.Ct.App.1999) (citing Neal v. State, 451 So.2d 743, 750 (Miss.1984); Morgan v. State, 681 So.2d 82, 87 (Miss.1996)). However, the mere offer to report to prosecuting authorities the fact that the defendant agreed to make a statement regarding his involvement in the matter under investigation, standing alone, has been said to not rise to the level of constitutionally-prohibited coercion on the part of law enforcement officials. Layne v. State, 542 So.2d 237, 240-41 (Miss.1989). The Mississippi Supreme Court has said, rather, that this offer to report cooperation must be combined with other evidence of oppressive or coercive treatment in order to support a claim of involuntariness. Id. at 240.

¶ 9. Boggans concedes this point in his brief and argues that additional coercive tactics designed to compel him to make a statement are shown by the fact that he was detained for approximately twelve hours before he made the statement without benefit of consultation with an attorney or even the opportunity make a telephone call to a family member. The evident problem with this contention, even if it is conceded for sake of argument that proof of such conduct would be sufficient, is that there is no evidence relating to the nature of Boggans’s confinement or a showing that he was, in fact, denied an opportunity to contact someone by telephone to alert them to his predicament. The only officer testifying for the prosecution indicated that he was called onto the case shortly before he interrogated Bog-gans and that he was unaware of the circumstances of Boggans’s confinement up until that time. Defense counsel made repeated attempts during his cross-examination of the officer to gain a concession as to the nature of Boggans’s confinement, and the propounded questions plainly indicated what Boggans contended were the circumstances under which he was held; however, questions asked during cross-examination, no matter how pointed, simply do not constitute evidence. Boggans elected not to testify at the suppression hearing and, thus, the potential evidence concerning his post-arrest treatment and the effect it may have had on his decision to offer an incriminating statement was not available for the trial court’s consideration, nor is it available for our review on appeal.

¶ 10. Based on our review of the evidence available for the trial court’s consideration in ruling on Boggans’s suppression motion, we are unpersuaded that the trial court erred in finding that Boggans’s statement was freely and voluntarily offered after he had been fully and completely apprized of his rights while in custody, including specifically the right against incriminating himself in the criminal activity under investigation. This issue is, for that reason, found to be without merit.

III.

The Issue of the Oath Administered to the Jury

¶ 11. After the jury had been empaneled and testimony from the first witness for the prosecution had been received, defense counsel brought to the attention of the trial court that the jury had not been properly sworn to try the matter as a capital case under the requirement of Section 13-5-73 of the Mississippi Code, though it had been sworn under the provisions of Section 13-5-71. At that point, the trial court offered to the defense that it would properly swear the jury and require the prosecution to re-examine the first witness. Defense counsel neither accepted nor rejected this proposed solution offered by the trial court, indicating that he wanted to take no action that might later be construed as a waiver of the perceived error. The trial court took no further action in regard to curing the omission of the required oath and Boggans now asserts the failure of the jury to take the appropriate oath as reversible error.

¶ 12. It is undisputed that the jurors were administered the following oath according to the language found in Section 13-5-71 of the Mississippi Code:

You, and each of you, do solemnly swear (or affirm) that you will well and truly try all issues and execute all writs of inquiry that may be submitted to you, or left to your decision by the court, during the present term, and true verdicts give according to the evidence. So help you God.

¶ 13. Despite this fact, Boggans points out that Section 13-5-73 of the Mississippi Code contains the following provision:

The jurors in a capital case shall be sworn to “well and truly try the issue between the state and the prisoner, and a true verdict give according to the evidence and the law.”

Miss.Code Ann. § 13-5-73 (Rev.2002).

¶ 14. There is some case law indicating that the failure to administer this special oath in capital cases is reversible error, though it is not entirely clear from the case that the error was the same as the one now before -.this Court. In Miller v. State, a murder case, the jurors “were sworn to answer questions as to their qualifications on the voir dire examination” but were not administered a subsequent oath until after testimony had begun. Miller v. State, 122 Miss. 19, 84 So. 161 (1920). In that situation, the Mississippi Supreme Court concluded that permitting unsworn jurors to hear evidence that might subsequently affect their deliberations had the effect of hopelessly tainting the verdict on the basis that the taking of the oath was intended to heighten the “conscientious manner in which [the jurors] received and considered the evidence....” Id. at 20, 84 So. at 162. The text of the oath actually taken by the jurors is not stated in the Miller case, but, in view of the language indicating that the potential jurors were sworn only to answer truthfully inquiries as to their qualifications and not to properly try the issues of any case set for trial during their term of service, it would appear that there is a basis to distinguish the facts of Miller from those in the case now before us.

¶ 15. More on point is the 1992 case of Wilburn v. State, 608 So.2d 702 (Miss.1992). In Wilburn, the facts are undisputed that the jurors received the somewhat broader oath presently found in Section 13-5-71, but, after being specifically chosen to try a rape case, it was made to appear that the jurors may not have been administered the oath required by Section 13-5-73. In that case, the possible failure to give the jury the proper oath was discovered before completion of cross-examination of the first witness. The trial court denied defense counsel’s motion for mistrial and the matter was raised as error on appeal. The supreme court found, as fact, that the two oaths were “substantially equivalent,” and that “[t]o suggest otherwise is to exalt form over substance.” Id. at 705. Based on that conclusion, the supreme court found “no reversible error for the possible omission of the administration of two separate oaths under the facts of this case.” Id. (emphasis added). Earlier, the supreme court found the relevant particular facts of the case to be (a) that there was no doubt that the oath prescribed by Section 13-5-71 was given; (b) the defendant declined any suggested attempt by the trial court to cure the error once discovered; (c) the jury did not impose life imprisonment; and (d) the jurors were not selected from a special venire assembled for the sole purpose of trying a capital case. Id. at 703.

¶ 16. We find the case before us to be in essentially the same posture, and, relying on the precedent found in Wilburn, conclude that the failure to administer the second oath to the jurors, as set out in Section 13-5-73, was not reversible error.

IV.

Defendant’s Challenge to the Quality and Quantity of the State’s Proof

¶ 17. Boggans, as his final issue in this appeal, mounts an attack on the evidence supporting the jury’s conviction. It is not entirely clear from our review of the brief whether he is claiming the evidence was insufficient to sustain his conviction as a matter of law or whether his contention is that the verdict was against the weight of the evidence. These two issues, though related, are not identical. If the State has failed to offer any credible evidence as to one or more of the essential elements of the crime, then the proof is said to be insufficient as a matter of law and the defendant’s conviction must be reversed and rendered on appeal. McKee v. State, 756 So.2d 793(¶ 6) (Miss.Ct.App.1999) (citing Franklin v. State, 676 So.2d 287, 288 (Miss.1996)). However, if the State has presented competent evidence as to each essential element, this Court may, nevertheless, conclude that the weight of the evidence, when viewed in its entirety, so pointed towards acquittal that the trial court should have ordered a new trial in order to avoid a manifest injustice. Hogan v. State, 854 So.2d 497(¶ 17) (Miss.Ct.App.2003).

If 18. The evidence demonstrates that Boggans was arrested driving the getaway vehicle only moments after an armed robbery occurred. The actual robbers were in the back seat, a pistol was discovered in the vehicle, and the money taken in the robbery was recovered from the car. Boggans asserts his innocence based essentially on his own testimony that he thought the two robbers had only gone into the restaurant to use the restroom. By well-established precedent, we are required to review the evidence in the light most favorable to upholding the verdict of the jury. E.g., Bell v. State, 835 So.2d 953(¶14) (Miss.Ct.App.2003). Additionally, we must afford deference to the conclusions reached by the jury on essential issues of fact on which the evidence was disputed, and we are not permitted to simply substitute our judgment for that of the jury on such matters. Hogan, 854 So.2d at (¶ 17). Lastly, we must assume that the jury drew all inferences in favor of the defendant’s guilt that were reasonably supported by the evidence. Id.

¶ 19. Viewed in that light, we are satisfied that the State presented evidence directly implicating Boggans as a willing participant in the scheme to rob the Har-dee’s Restaurant. We are also satisfied that Boggans’s countering evidence, consisting principally of his own denials of knowledge of the robbery and proof that he did not attempt to flee once police officers signaled for him to pull the vehicle over, was not of such probative value as to lead to the conclusion that the jury’s decision to reject it resulted in a substantial miscarriage of justice. We, therefore, find no basis to either reverse and render Bog-gans’s conviction or to reverse the conviction and remand this matter to the trial court for a new trial.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF CONVICTION OF COUNT I, ARMED ROBBERY, AND SENTENCE OF THIRTY YEARS, COUNT II, ARMED ROBBERY, AND SENTENCE OF THIRTY YEARS, AND COUNT IV, ARMED ROBBERY, AND SENTENCE OF THIRTY YEARS, WITH THE LAST FIVE YEARS OF EACH SENTENCE STAYED AND SUSPENDED AND THAT PORTION OF THE SENTENCE SHALL BE SERVED ON SUPERVISED PROBATION FOR A PERIOD OF FIVE YEARS, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. SENTENCES IMPOSED IN COUNT II AND COUNT IV SHALL RUN CONCURRENTLY WITH SENTENCE IMPOSED IN COUNT I. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

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


text:
    Ruby BUFKIN a/k/a Ruby J. Moncreaise, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-02111-COA.
    Court of Appeals of Mississippi.
    March 9, 2004.

      Edmund J. Phillips, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before McMILLIN, C.J., IRVING and MYERS, JJ.
   McMILLIN, C.J., for the Court.

¶ 1. Ruby Bufkin, having been convicted and sentenced for felony shoplifting, has appealed her conviction to this Court. She contends that the trial court committed reversible error in permitting the jury to learn of her prior shoplifting convictions during the prosecution’s case-in-chief. She further contends that one of the prior incidents of shoplifting relied upon by the State to raise the level of the offense to a felony occurred outside the statutory period, thus reducing her conviction to a misdemeanor offense. We find these issues to be without merit and affirm the conviction.

¶2. In this appeal, Bufkin does not directly challenge the jury’s finding that she actually committed the act of shoplifting that forms the underlying basis for the indictment. Therefore, it is unnecessary to review the proof as to these elements of the crime. We will, rather, proceed directly to the issues presented in the appeal.

I.

Considerations of Time in the Matter of Inclusion of Prior Convictions

¶ 3. In order to constitute felony shoplifting, the State must show that the conviction was “a third or subsequent shoplifting conviction.” Miss.Code Ann. § 97-23-93(6) (Supp.2003). That provision of the code further provides as follows:

In determining the number of prior shoplifting convictions for purposes of imposing punishment under this section, the court shall disregard all such convictions occurring more than seven (7) years prior to the shoplifting offense in question.

Miss.Code Ann. § 97-23-93(8) (Supp.2003).

¶ 4. The State presented evidence of two prior shoplifting convictions. Bufkin maintains that the timing of the earlier conviction was such as to put it outside the seven-year window of subsection (8), thus reducing the offense to a misdemeanor punishable under Section 97 — 23—93(5)(b) of the Mississippi Code.

¶ 5. For purposes of our analysis of this issue, we proceed on the basis that the following facts regarding potentially relevant dates are not in dispute: (a) The date of the occurrence giving rise to the earlier conviction cannot be determined from the record, (b) The date of conviction for that offense is May 31, 1995.(c) The date of the occurrence giving rise to the present charge is January 18, 2002.(d) The date of conviction for the present charge is November 14, 2002.

¶ 6. Buflrin argues that the statute declares the dates of prior convictions as the appropriate commencement date to determine whether a particular previous offense may be an element of felony shoplifting; therefore, it is only appropriate to use the date of conviction as to the last occurrence in defining the end of the seven-year period. Under Bufkin’s analysis, any shoplifting conviction occurring before November 14, 1995, would be excluded from consideration under Section 97-23-93(8).

¶ 7. The State counters with the argument that appropriate computation is to calculate backward from the date of the last occurrence giving rise to the charge. Since the alleged shoplifting incident leading to this indictment occurred on January 18, 2002, the conviction obtained in May 31, 1995, is well within the applicable seven-year period.

¶ 8. In interpreting statutory enactments, one of the fundamental rules of construction is that words shall be given “their common and ordinary acceptation and meaning.” Miss.Code Ann. § 1-3-65 (Rev.1998); Tower Loan of Miss., Inc. v. Miss. State Tax Comm’n, 662 So.2d 1077, 1083 (Miss.1995). It is in that light that we review this issue, which, under the facts of this case, presents a pure question of law.

¶ 9. The Mississippi Legislature, in defining the applicable seven-year period during which prior occurrences of shoplifting would affect the severity of the defendant’s punishment, elected to use different language to set the beginning date of the period from that used to establish the end date. As to the commencement of the period, the legislature used the term “conviction,” which we find to be an unambiguous term for purposes of our analysis. The record is plain that the prior conviction relevant to this issue occurred on May 31,1995.

¶ 10. However, as to the date marking the end of the seven-year period, the legislature in essence defined it as the date of “the shoplifting offense in question.” Miss.Code Ann. § 97-23-93(8) (Supp.2003). Thus, the issue presented by this language is whether the offense occurred for purposes of this statute on the date of the occurrence or on the date that it was finally adjudicated that the occurrence had, in fact, occurred.' Although in a somewhat different context, the Fifth Circuit has said that “[i]t cannot legally be known that an offense has been committed until there has been a conviction.” Holst v. Owens, 24 F.2d 100, 101 (5th Cir.1928). However, we conclude that, whether further events are necessary to establish with the requisite certainty that an “offense” has, in fact, occurred, the playing out of those events does not serve to move the date of the offense from the time of the event to the time that it is finally adjudicated that the events actually occurred. The subsequent formal adjudication of an offense merely provides the necessary confirmation that an offense was, in fact, committed at the alleged time.

¶ 11. We, therefore, hold that for purposes of the computations required under Section § 97-23-93(8) relating to prior shoplifting convictions, the date of the “offense” is the date of the occurrence giving rise to the charge rather than the date that it is finally adjudicated that the criminal activity actually occurred. In so adjudicating, we note that, as the appellant has correctly observed, we are forced to “compare apples to oranges” in determining critical dates.. This necessarily injects a measure of arbitrariness into the equation and makes the inclusion of prior shoplifting events occurring at the margins of the seven-year period potentially depend to a large extent on the promptness of the prosecution in bringing those charges to trial. It would appear that the purpose of the statutory scheme for increasing levels of punishment for subsequent occurrences was to detect and punish more severely those who have plainly evidenced a certain persistence in their criminal endeavors. In that light, one might argue that a better measure would have been the period between the occurrences themselves since the time of conviction between two crimes by two different defendants occurring on the same day can vary widely, yet the evidentiary value of the two events to demonstrate a propensity for criminal activity is essentially the same. Nevertheless, there is a certain inherent arbitrariness in establishing any “bright line” critical date in matters such as this, and we do not conclude that the method of calculation required by the plain language of the statute is so arbitrary as would compel us to force the strained interpretation on it that would be required to arrive at the result urged by Bufkin.

II.

Prior Convictions as Element of the Crime

¶ 12. The prosecution was permitted to present to the jury information concerning Bufkin’s two prior shoplifting convictions, and the jury was instructed that it had to find that those previous convictions occurred within the relevant seven-year time period in order to convict of the crime of felony shoplifting.

¶ 13. Bufkin contends ■ on appeal that this was error and that the proper way to handle the matter of prior convictions was to bifurcate the trial with the trial court making the necessary determinations regarding the prior convictions as a part of the sentencing phase of the trial. She argues that permitting the jury to learn of her prior convictions hopelessly prejudiced her in the eyes of the jury and raised the possibility that the jury would convict upon reaching the conclusion that her prior conduct had demonstrated a propensity for such criminal activity. Bufkin claims that this constituted a violation of Mississippi Rule of Evidence 404(b), which prohibits the admission of evidence of prior bad acts for that purpose.

¶ 14. This issue is without merit. In the first place, it is procedurally barred since, at trial, Bufkin only objected to introduction of the prior convictions on the ground that one was too remote in time. As to the other conviction, Bufkin’s counsel stated that, “We have no objection to it.” An objection to proposed evidence must be timely. Entergy Miss., Inc. v. Bolden, 854 So.2d 1051, 1058(¶ 22) (Miss.2003). The objecting party must also state with some degree of certainty the ground on which the objection is made, and a failure to articulate some other available ground acts as a waiver as to the unstated basis. Materials Transp. Co. v. Newman, 656 So.2d 1199, 1203 (Miss.1995).

¶ 15. Even were there no procedural bar, we find no merit in the argument. Felony shoplifting is somewhat akin to felony driving under the influence in that both rely on multiple prior convictions for the same offending conduct in order to raise the level of offense from a misdemeanor to a felony. ‘The Mississippi Supreme Court has plainly stated that, in the matter of DUI offenses, the prior convictions are elements of the crime that must be determined by the finder of fact beyond reasonable doubt as a part of the prosecution’s case in chief. Rigby v. State, 826 So.2d 694, 700(¶ 9) (Miss.2002).

¶ 16. In this instance, the trial court attempted to deal with the problems arising under Rule 404(b) by instructing the jury as follows:

The Court instructs the jury that before you can find the Defendant guilty of the crime for which she is being tried, you must find that she has twice previously been convicted of the crimes of shoplifting within the last seven years, and you may not consider evidence of other crimes as evidence of her guilt in this case.

¶ 17. Mississippi Rule of Evidence 105 authorizes the court, when evidence is admissible for one purpose but not for another, to “restrict the evidence to its proper scope and instruct the jury accordingly.” M.R.E. 105. The jury is presumed to follow the instructions given to it by the trial court. Johnson v. State, 475 So.2d 1136, 1142 (Miss.1985).

¶ 18. We conclude that the matter of Bufkin’s prior convictions was handled properly by the trial court and that this issue on appeal is without merit.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF NESHOBA COUNTY OF CONVICTION OF FELONY SHOPLIFTING, THIRD OR SUBSEQUENT OFFENSE, AND SENTENCE OF FOUR YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO NESHOBA COUNTY.

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


text:
    Allen Earl PLAIR, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-00474-COA.
    Court of Appeals of Mississippi.
    March 9, 2004.

      David L. Walker, Batesville, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before McMILLIN, C.J., IRVING and MYERS, JJ.
   McMILLIN, C.J., for the Court.

¶ 1. Allen Earl Plair was convicted by a Tate County Circuit Court jury of aggravated assault. He has appealed that conviction to this Court and presents two issues that he contends warrant a reversal of his conviction. First, he urges that the trial court erred in denying his request to disallow the State’s use of peremptory challenges during jury selection. Second, he contends that the trial court erred in overruling his objection to an inquiry by the prosecutor, made during the cross-examination of Plair, that was intended to call into question his credibility. We find no merit in the first issue. As to the second issue, we conclude that the question at issue was improper as being purely argumentative so that the defense objection should have been sustained; however, we do not conclude that the fundamental fairness of the trial was affected, and we decline to reverse under principles of harmless error.

¶ 2. Neither issue raised in this appeal relates to the underlying facts relied upon by the State to establish the basis for the charge in the indictment. For that reason, we dismiss with a recitation of the evidence tending to demonstrate Plair’s complicity in the crime.

I.

¶ 3. Plair asked the trial court to disallow the State’s use of peremptory strikes of prospective jurors during jury selection. As authority for that motion, both at the trial level and in this appeal, Plair relied on assertions found in Justice Marshall’s separate concurrence in the United States Supreme Court decision styled Batson v. Kentucky, and Justice Sullivan’s separate writings in several Mississippi Supreme Court decisions. Batson v. Kentucky, 476 U.S. 79, 102, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Thorson v. State, 653 So.2d 876, 896 (Miss.1994); Hatten v. State, 628 So.2d 294, 305 (Miss.1993); Davis v. State, 551 So.2d 165, 177 (Miss.1989), cert. denied, 494 U.S. 1074,110 S.Ct. 1796, 108 L.Ed.2d 797 (1990). None of these writings relied on by Plair commanded a majority vote of either court.

¶ 4. Peremptory strikes are specifically authorized in this state under authority of Section 13-5-69 of the Mississippi Code. The use of such strikes passed constitutional muster under the United States Constitution in the Batson decision so long as there is no accompanying showing that the strikes are being used for ends forbidden by that opinion and those that followed extending Batson’s reach to other protected classes. There is no Mississippi precedent binding on this Court that suggests the applicable statute is unconstitutional under any provisions of the Mississippi Constitution. Plair makes no contention that any strikes actually exercised by the prosecution violated any of the provisions of Batson or those subsequent federal and State decisions that have interpreted and, to some extent, expanded the strictures set up in Batson. In that situation, this Court finds that there is no basis to find error in the trial court’s refusal to enforce a blanket denial of the'use of peremptory strikes in jury selection.

II.

¶ 5. Plair elected to testify in his own defense and denied having purposely beaten his victim, claiming instead that she was injured when they fell to the ground and he fell on top of her. During cross-examination, the prosecutor, in an apparent attempt to highlight for the jury the marked difference between the victim’s version of events and that offered by Plair, engaged in the following exchange with the defendant.

Q. Are we supposed to believe you or her?
A. Well, Mrs. Brewer- — ■
[Defense Counsel]: I object. Now the jury decides who to believe your Honor, not Mr. Plair. That’s an irrelevant and unfair question.
THE COURT: Overrule the objection.
Q. Who are we supposed to believe?
A. Well, Mrs. Brewer, I really can’t answer that either. All I can tell you is this. I didn’t smash her head against no brick wall.

¶ 6. On appeal, Plair contends the trial court’s ruling permitting this line of inquiry constitutes reversible error. His contention is that the question delved into matters that were irrelevant since the jury is the sole finder of fact in a criminal trial.

¶ 7. We agree with Plair’s initial point in his argument. The question that led to defense counsel’s timely objection was plainly irrelevant. The proper subject of inquiry of a witness relates to information “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” M.R.E. 401. The prosecutor’s question to Plair was, on its face, argumentative and had no possibility of eliciting information that would have been helpful to the jury in determining any fact of consequence in deciding Plair’s culpability. “Evidence which is not relevant is not admissible.” M.R.E. 402. The trial court ought to have sustained defense counsel’s objection.

¶ 8. Nevertheless, reversible error does not automatically follow from a determination that the trial court erred in the admission or exclusion of evidence. Such rulings lead to reversal only where “a substantial right of the party is affected....” M.R.E. 103(a). So long as such error has not undermined the fundamental fairness of the trial, it cannot form the basis for the reversal of a criminal conviction. King v. State, 857 So.2d 702, 732 (¶ 112) (Miss.2003).

■ ¶ 9. In his brief, Plair has not alleged any particular basis for concluding that this one rather pointless inquiry by the prosecutor resulted in any prejudice or harm to the defense or in any way undermined the basic integrity of the trial process. The error in permitting the State to propound the question and requiring the defendant to answer (his answer was “Mrs. Brewer, I really can’t answer that either.”) was, beyond question, harmless.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF TATE COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWELVE YEARS, WITH FIVE YEARS POST RELEASE SUPERVISION, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND PAY $100 TO THE CRIME VICTIMS COMPENSATION FUND, IS AFFIRMED. SAID SENTENCE SHALL RUN CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED. COSTS OF THIS APPEAL ARE ASSESSED TO TATE COUNTY.

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