author: WALLER, Justice, for the Court.

text:
    In the Interest of L.D.M., a Minor.
    No. 2001-CA-01203-SCT.
    Supreme Court of Mississippi.
    June 19, 2003.

      Patricia Peterson Smith, William M. Bost, Jr., Vicksburg, attorneys for appellant.
    Jerry Campbell, Vicksburg, attorney for appellee.
   WALLER, Justice, for the Court.

¶ 1. The Youth Court of Warren County ordered that the custody of a four-year-old girl be taken from her grandmother and be given to her mother. The guardian ad litem who was appointed to protect the child’s interests recommended that custody remain with the grandmother. The youth court failed to make a record of its consideration of the guardian ad litem’s recommendation. We find that the youth court erred in not addressing the guardian ad litem’s recommendation in its order, and we vacate and remand for further findings and a new custody order.

DISCUSSION

WHETHER THE YOUTH COURT COMMITTED REVERSIBLE ERROR WHEN IT IGNORED THE RECOMMENDATIONS OF THE GUARDIAN AD LITEM AND TWO MENTAL HEALTH PROFESSIONALS.

¶ 2. The grandmother claims that the youth court abused its discretion and committed manifest error by not recognizing the guardian ad litem’s contributions to the case and by failing to explain why it did not follow her recommendations. She further contends that the youth court did not consider parental termination as advised by the guardian ad litem. The guardian ad litem’s recommendations were as follows:

1. Permanent durable custody be given to the grandmother;
2. The mother should undergo comprehensive psychiatric evaluation;
3. The child should be enrolled in a daily learning program;
4. The grandfather and grandmother seek third party assistance in working together for the benefit of the child;
5. The mother should be allowed a flexible visitation schedule with the child;
6. The grandfather and his family should be allowed a flexible visitation schedule with the child;
7. If the grandmother becomes unable to care for the child, placement should be with M.C. or C. B.;
8. The mother should provide child support in the amount of 14% of her income; and
9. Termination of parental rights should be commenced against the mother.

In an updated report to the court and recommendation, the guardian ad litem recommended that adoption should be sought by the grandmother.

¶ 3. The recommendations of the guardian ad litem are an additional consideration to aid the judge in his decision. In S.N.C. v. J.R.D., 755 So.2d 1077, 1082 (Miss.2000), we held that there is no requirement that the youth court judge follow the recommendation of the guardian ad litem. The judge should earnestly consider the recommendation; however, ultimately, the decision is solely the youth court judge’s to make. Id.

¶ 4. Here, the youth court heard all of the testimony, including evidence from the mental health professionals, and concluded that it was in the child’s best interest to be returned to her mother.

¶ 5. The general rule is that when the court’s ruling “is contrary to the recommendation of a statutorily required guardian ad litem, the reasons for not adopting the guardian ad litem’s recommendation shall be stated by the court in the findings of fact and conclusions of law.” Id. at 1082 (emphasis added). Here, the youth court should include in its findings of facts and conclusions of law a summary of the guardian ad litem’s recommendations, whether the youth court agrees or disagrees with the guardian ad litem and why. Here, the youth court did not address the guardian ad litem’s recommendations while it obviously disagreed with them by its decision to return the child to the mother. Because the youth court did not discuss the guardian ad litem’s recommendations, its order must be vacated and this case remanded for further proceedings.

CONCLUSION

¶ 6. It would be premature to review the remainder of the youth court’s findings because we cannot make a complete factual and/or legal determination of . whether the youth court’s decision was correct unless we review its reasons for not following the guardian ad litem’s recommendation. Therefore, we vacate the youth court’s decision and remand with instructions to (1) make a record of its consideration of the guardian ad litem’s recommendations and (2) enter a new custody order.

¶ 7. VACATED AND REMANDED».

PITTMAN, C.J., McRAE AND SMITH, P.JJ., COBB AND CARLSON, JJ„ CONCUR. EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: WALLER, Justice, for the Court. McRAE, Presiding Justice,

license: Public Domain

text:
    J.K. HURDLE, Jr. and Sam Hurdle, Hurdle and Son, General Partnership, All Jointly and Severally, v. Michael HOLLOWAY.
    No. 2001-IA-01681-SCT.
    Supreme Court of Mississippi.
    June 19, 2003.

      Lawrence Lee Little, Dion Jeffery Shan-ley, attorneys for appellants.
    Barrett Jerome Clisby, Oxford, James Kizer Jones, attorneys for appellee.
   WALLER, Justice, for the Court.

¶ 1. After they had both consumed several beers, Sam Hurdle, of Hurdle and Son General Partnership, offered Michael Holloway, a Hurdle and Son employee, a ride home after work. On the way, one of the tires on the truck in which they were riding suffered a blowout, causing Sam to lose control of the vehicle. The truck flipped several times, and Holloway was seriously injured.

¶ 2. After filing a tort action in circuit court against J.K. Hurdle, Jr., Sam Hurdle, and Hurdle and Son, Holloway filed a claim with the Workers’ Compensation Commission, which granted the claim. The Hurdles and their WC carrier appealed to the circuit court, claiming that Holloway was not within the course and scope of his employment when he was injured. After the circuit court affirmed the WCC’s ruling, the Hurdles appealed to this Court, and we transferred the appeal to the Court of Appeals, which affirmed the grant of benefits. The Court of Appeals specifically ruled that Holloway was in the course and scope of his employment when he was injured and that his injuries were compen-sable under the Act.

¶ B. Holloway’s tort action against the Hurdles was brought out of abeyance, and the Hurdles filed a motion for summary judgment, contending that Holloway’s complaint was barred by the exclusivity provision of the Act. After the circuit judge denied the motion for summary judgment, we granted the Hurdles permission to bring this interlocutory appeal. See M.R.A.P. 5. We reverse and render the circuit court’s denial of the motion for summary judgment because the Act’s exclusivity provisions bar Holloway’s complaint.

DISCUSSION

¶4. We employ a de novo standard of review of a trial court’s grant or denial of a summary judgment and examine all the evidentiary matters before it— admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law, summary judgment should forthwith be entered for the movant. Otherwise, the motion should be denied. Heigle v. Heigle, 771 So.2d 341, 345 (Miss.2000).

WHETHER THE EXCLUSIVITY PROVISION OF THE ACT BARS HOLLOWAY’S COMPLAINT IN TORT AGAINST THE HURDLES.

¶ 5. It is well established that the Act is the exclusive remedy for an employee injured while acting in the scope and course of his employment. Miss.Code Ann. § 71-3-9 (Rev.2000); Medders v. United States Fid. & Guar. Co., 623 So.2d 979, 984 (Miss.1993). The exclusivity provision of the Act is not applicable to an employee’s claim if: (1) the injury is caused by the willful act of the employer or another employee acting in the course and scope of employment and in the furtherance of the employer’s business; and (2) the injury must be one that is not compensable under the Act. Newell v. Southern Jitney Jungle Co., 830 So.2d 621, 624 (Miss.2002).

¶ 6. Because the Court of Appeals has decided as a matter of law that Holloway was acting in the course and scope of his employment when he was injured, that his injuries were not the result of an intentional tort, and that his injuries were compensable under the Act, the exclusivity provision of the Act bars his tort claims against the Hurdles, and the circuit court erred when it denied the Hurdles’ motion for summary judgment.

CONCLUSION

¶ 7. We reverse the circuit court’s order denying the Hurdles’ motion for summary judgment, and we render summary judgment here for the Hurdles finally dismissing Michael Holloway’s complaint and this action with prejudice.

¶ 8. REVERSED AND RENDERED.

PITTMAN, C.J., SMITH, P.J., COBB, EASLEY, CARLSON AND GRAVES, JJ„ CONCUR. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

McRAE, Presiding Justice,

dissenting:

¶ 9. The majority erroneously finds that the Workers’ Compensation Act is the exclusive remedy for Michael Holloway for injuries he sustained in an auto accident because he “was acting in the course and scope of his employment when he was injured, his injuries were not the result of an intentional tort, and his injuries were compensable under the Act....” (Maj. Op. ¶ 6 & n.4 (citing Miller v. McRae’s, Inc., 444 So.2d 368, 371 (Miss.1984))). Since I believe summary judgment is inappropriate and Holloway is entitled to proceed with his personal injury action, I dissent.

¶ 10. In making its findings, the majority incorrectly relies on the holding in Hurdle & Son v. Holloway, 749 So.2d 342 (Miss.Ct.App.1999), a Court of Appeals decision which only addressed whether Holloway was entitled to workers’ compensation benefits. In that opinion, the Court of Appeals never addressed the validity of a personal injury suit. Additionally, a thorough reading of the opinion provides evidence which would support the trial court’s denial of the motion for summary judgment. Furthermore, in order to be entitled to workers’ compensation benefits a party must only satisfy a “substantial evidence” standard, which in no way precludes the assertion that such injuries are not exclusively in the realm of the statute, but may also support a personal injury action.

¶ 11. The majority finds that Holloway was acting in the course and scope of his employment when he was injured. This is wrong for two reasons. First, Holloway’s injuries did not occur within the course and scope of his employment. “[A]n injury occurs ‘in the course of employment when it takes place within the period of employment, at a place where the employee reasonably may be in the performance of his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto, or, as sometimes stated, where he is engaged in the furtherance of the employer’s business.’ ” Bivens v. Marshall R. Young Drilling Co., 251 Miss. 261, 273, 169 So.2d 446, 450 (1964) (quoting 58 Am.Jur. Workmen’s Compensation § 212 (1948)). There is disputed testimony and evidence as to whether “Michael Holloway agreed to assist in working on the truck as a personal favor to Sam Hurdle or whether his work was a required duty as a part of his employment.” Holloway, 749 So.2d at 345. In fact, “[t]he testimony of J.K. Hurdle makes clear that he did not consider repair of the truck to be something vital to the furtherance of the farming operation.” Id. at 347. The accident which precipitated Holloway’s injuries occurred a few hundred yards from the Hurdle property. Id. at 345. Both Sam Hurdle and Holloway were drinking at the time of the accident. Id. “[T]he work on the truck and the ensuing accident both took place outside of Michael Holloway’s normal work hours.” Id. at 347. Under all of these facts, a jury could find that Holloway was not in the course and scope of his employment at the time of the accident. The fact that the Court of Appeals in Hurdle & Son v. Holloway, found that Holloway was entitled to workers’ compensation benefits is of no consequence and does not decide the issues pertaining-to the civil personal injury action.

¶ 12. Second, the going and coming rule is applicable to this very situation. “[T]he general rule [is] that the hazards encountered by employees while going to or returning from their regular place of work and off the employer’s premises are not incident to employment and accidents arising therefrom are not compensable.” Stepney v. Ingalls Shipbuilding Div., Litton Sys., Inc., 416 So.2d 963, 964 (Miss.1982) (quoting Miller Transporters, Inc. v. Seay’s Dependents, 350 So.2d 689 (Miss.1977)). One exception to this general rule is “where the employer furnishes the means of transportation, or remunerates the employee.” Id. (quoting Wallace v. Copiah County Lumber Co., 223 Miss. 90, 99, 77 So.2d 316, 318 (1955)). However, this exception does not apply “when the transportation is nothing more than a onetime or infrequent occurrence.” Holloway, 749 So.2d at 348. See also Arnold v. Wright, 80 N.Y.S.2d 808, 808 (N.Y.Sup.Ct.1948); Arthur Larson & Lex Larson, Larson’s Workers’ Compensation' Law § 15.03 (1999). Holloway normally rode to work with his uncle. 749 So.2d at 349. He rarely, if ever, rode to and from work with Sam Hurdle. Id. Under these facts, a jury could find Holloway was not in the course and seope of his employment at the time of the accident.

¶ 13. The majority finds that Holloway’s injuries were not the result of a willful act or intentional tort and that, therefore, the intentional tort exception to the Workers’ Compensation Act is not applicable. The majority further finds that the injuries sustained by Holloway are compensable injuries under the Act. As a preliminary matter, it is worth noting that the Court of Appeals when ruling on Holloway’s entitlement to workers’ compensation benefits did not address the applicability of the intentional tort exception. “[I]t was never the intention of the Workmen’s Compensation Act to bar an employee from pursuing a common law remedy for an injury that is the result of a willful and malicious act.” Miller, 444 So.2d at 371. “[Wjhere an injury is caused by the willful act of an employee acting in the course and scope of his employment and in the furtherance of his employer’s business, the Workmen’s Compensation Act is not the exclusive remedy available to the injured party.” Id. This exception for willful and intentional acts which cause injury, is predicated on the fact that injuries which result from such acts are not compehsable injuries under the Workers’ Compensation Act. Newell v. Southern Jitney Jungle Co., 830 So.2d 621, 624-25 (Miss.2002) (citing Miller, 444 So.2d at 371-72). The majority misstates this Court’s ruling in Newell, by asserting that the two-prong inquiry which was taken from Miller is still the applicable law. A thorough reading of Newell, indicates that we have abandoned the two-prong inquiry after reviewing the holding in Miller. In Newell, we specifically stated that:

This Court thus writes further today to clarify a misinterpretation of the exclusivity test by prior opinions of this Court....
The two prongs as stated in cases after Miller are as follows: (1) the injury must have been caused by the willful act of another employee acting in the course of employment and in the furtherance of the employee’s business; [and/or] (2) the injury must be one that is not compensable under the act. Miller, in fact, does not state a two-part test, whether it be joined by the word “and” or “or.”
Rather, the only test articulated in Miller is whether the injury is compen-sable under the act. The Court’s entire discussion in that case, from which we later articulated a two-part test, was an effort to answer that sole question— compensability of the injury. A close reading of Miller reveals that the first prong of the test is not a separate requirement as we later interpreted it to be. Rather, the first prong is merely part of the inquiry into whether the injury is, in fact, compensable.
The correct restatement of the inquiry set forth in Miller asks whether the injury is compensable under the act.

Id. at.624-25.

¶ 14. Under Newell, the only inquiry required is that of “whether the injury is compensable under the act.” Id. at 625. Injury as defined by the Act includes only “accidental injury or accidental death arising out of and in the course of employment ...” Accident has been defined as “something happening without design and being unforseen and unexpected to the person to whom it happens.” L.B. Priester & Son v. McGee, 234 Miss. 471, 478, 106 So.2d 394, 397 (1958) (quoting 99 C.J.S. Workmen’s Compensation § 153, page 526). “[T]he term is interpreted from the viewpoint of the employee.” Id. Willful and intentional acts are not compensable under the Act’s definition of injury. “[A]n injury arises out of employment when but only when there is a causal connection between the injury and the conditions under which the work is required to be performed.” Brookhaven Steam Laundry v. Watts, 214 Miss. 569, 634, 59 So.2d 294, 299 (1952) (quoting 58 Am.Jur. Workmen’s Compensation, P. 718, Par. 211). Course of the employment means an injury which “takes place within the period of employment, at a place where the employee reasonably may be in the performance of his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto, or, as sometimes stated, where he is engaged in the furtherance of the employer’s business.” Bivens, 251 Miss, at 273, 169 So.2d at 450 (quoting 58 Am.Jur. Workmen’s Compensation § 212 (1948)). “A compensable injury must arise not only within the time and space limits of the employment, but also in the course of an activity related to the employment.” Id. at 273, 169 So.2d at 451 (quoting Larson, Workmen’s Compensation Law § 14 (1964)). “An activity is related to the employment if it carries out the employer’s purposes or advances his interests directly or indirectly.” Id. (quoting Larson, Workmen’s Compensation Law § 14 (1964)). Under these definitions, the injuries sustained by Holloway are not “compensable injuries” under the Workers’ Compensation Act. Holloway was assisting in the truck repair with Sam Hurdle as a personal favor. Holloway, 749 So.2d at 345. The truck repair was therefore not within the definition of “course of employment.” Furthermore, there is no causal connection between Holloway’s employment as a farm laborer and the accident which resulted from Sam Hurdle’s intoxication. Also lacking are the “time and place” factors. The accident occurred on a public highway and not on the Hurdle’s property. Id. The accident took place outside of Holloway’s normal work hours. Id. at 347.

¶ 15. Further, any argument that the accident does not rise to the level of willful or intentional fails. Sam Hurdle was violating the law at the time of the accident. He was drinking and driving, for which he received a First Offense DUI. He was driving recklessly and has acknowledged that the he can not say “whether he could have avoided the accident if he had not previously consumed a number of beers.” Id. at 352. Such complete and total reckless disregard for human life and the law is “willful.” In support of this contention, all one must do is look to the imposition of punitive damages on drunken drivers who cause accident and injury. Miss. Code Ann. § ll-l-65(l)(a),. (3)(d)(ii) (2003 Adv. Code Serv. Pam. No.2 March 2003) Such acts are seen by this Court and the public as rising to the level of an intentional tort. See Choctaw Maid Farms, Inc. v. Hailey, 822 So.2d 911 (Miss.2002); Savage v. LaGrange, 815 So.2d 485 (Miss.Ct.App.2002). A jury could find that Holloway’s injuries are not compensable injuries within the meaning of the Workers’ Compensation Act.

¶ 16. It is of no consequence that the Court of Appeals found Holloway entitled to workers’ compensation benefits. As the Act is to be liberally construed in favor of benefits, the Court of Appeals was limited in its review of the Commission’s findings. 749 So.2d at 347. In order to receive benefits, the Act only calls for the presentation of “substantial evidence.” Id. Under such a limited standard of review and burden of proof, it is no wonder the Court of Appeals affirmed the Commission’s decision. However, the Court of Appeals’ ruling as to Holloway’s entitlement to benefits does not preclude the litigation of the issues presented in his personal injury action. As the test only addresses “whether an injury is compensable,” not whether compensation has granted under the Act. So, the decisive question concerns whether the injury was a compensable injury under the Act. Under the facts and circumstances of this case, these factual determinations should be left to a jury.

¶ 17. Another important point, not specifically addressed by the majority, is the argument presented by the Hurdles that they cannot now be personally sued since they as the employer have already been held liable under the Workers’ Compensation Act. However, receipt of some workers’ compensation benefits “does not preclude compensation for the damages that are not compensable under the Act.” Davis v. Pioneer, Inc., 834 So.2d 739, 743 (Miss.Ct.App.2003). See also Blailock v. O’Bannon, 795 So.2d 533 (Miss.2001). As stated in the Act “[t]he acceptance of compensation benefits from or the making of a claim for compensation against an employer or insurer for the injury or death of an employee shall not affect the right of the employee or his dependents to sue any other party at law for such injury or death. .... ” Miss.Code Ann. § 71-3-71 (Rev. 2000). Holloway is not suing the Hurdles in their ownership capacity of Hurdle & Son, he, is suing Sam and J.K. Hurdle in their individual capacity for Sam’s willful acts. In order to file suit against Sam Hurdle, who is a minor, Holloway must include J.K. Hurdle in his capacity as guardian of his son. Miss.Code Ann. § 1-3-27 (Rev.1998); Miss. R. Civ. P. 4(d)(2)(a) & 17(c). Furthermore, Holloway also may assert claims against J.K. Hurdle who is statutorily imputed with liability for his son’s auto negligence. Miss.Code Ann. §§ 63-1-23 & -25 (Rev.1996). Since the facts are unclear as to whether Sam Hurdle was eighteen years old at the time of the accident or whether he had reached the age of eighteen- by the time the case reached the Court of Appeals, we can only assume that Holloway has a statutory liability claim against J.K. Hurdle. Sam and J.K. Hurdle in these capacities. are not “employers” but “individuals.” Hurdle & Son was Holloway’s employer, not Sam and J.K. Hurdle. See Index Drilling Co. v. Williams, 242 Miss. 775, 137 So.2d 525 (1962). There is a distinct difference.

¶ 18. For these reasons, I dissent.

      . The truck was owned by Hurdle and Son.

      . Hurdle & Son v. Holloway, 749 So.2d 342 (Miss.Ct.App.1999).

      . The Court of Appeals’ ruling was not altered by a motion for rehearing or by a petition for certiorari to this Court.

      . If the injuries were caused by an intentional tort, the exclusivity provision would not apply. Miller v. McRae’s, Inc., 44.4 So.2d 368, 371 (Miss.1984). However, there is no proof in the record that Sam acted willfully and maliciously, and the Court of Appeals specifically found that the proximate cause of the accident was "equipment failure,” i.e., the tire blow out. Hurdle & Son, 749 So.2d at 342.

      . In 2002, the Legislature amended Section 11-1-65. The portions of this Section which are mentioned in this opinion, were not changed by the Legislature and continue in full effect.


author: SOUTHWICK, P.J.,

text:
    Mel Lindsey ATWELL, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-01572-COA.
    Court of Appeals of Mississippi.
    April 22, 2003.
    Rehearing Denied June 17, 2003.

      Mel Lindsey Atwell, pro se.
    Office of the Attorney General, By: Jean Smith Vaughan, Attorney for Appel-lee.
    Before SOUTHWICK, P.J.„ THOMAS and CHANDLER, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. Mel Atwell appeals the denial of his petition for post-conviction relief, assigning numerous points of error. For the reasons discussed below, we affirm the circuit court.

FACTS

¶ 2. Mel Atwell was indicted on a charge of felony driving under the influence. On June 8, 2000, Atwell entered a plea of guilty to the charge and received a five year suspended sentence with two years’ post-release supervision. A provision of the sentencing order permitted Atwell to transfer his supervision to either Tennessee or Georgia, if he was accepted by one of those states.

¶ 3. Atwell reported to his probation officer on June 9, 2000, but never reported again. The Department of Corrections twice petitioned for revocation of Atwell’s suspended sentence. The first petition was filed August 11, 2000, for failure to report to his probation officer. The second petition, filed May 31, 2001, also asked for revocation based on failure to appear. It also gave as grounds that he had left the state without permission and had acquired two more DUI arrests, one in Biloxi and one in Paducah, Kentucky. Following At-well’s apprehension, a revocation hearing was held before the same trial judge as had sentenced him. Atwell admitted in open court to having violated the terms of his suspended sentence. The suspension was revoked in its entirety.

¶ 4. Atwell first filed for post-conviction relief on September 22, 2001. The petition was returned to him two months later for failing substantially to comply with the statutory pleading requirements. Also in August 2001, Atwell filed for a writ of habeas corpus in the District Court for the Southern District of Mississippi. The federal court dismissed the petition without prejudice for failing to exhaust available state remedies. Atwell also later filed a civil rights violation suit against the State of Mississippi in the District Court of the Eastern District of Tennessee. This was also dismissed.

¶5. Atwell resubmitted his petition to the Harrison County Circuit Court on August 13, 2002. On September 6, 2002, the court ruled that each of Atwell’s claims was without merit. He dismissed the petition. It is from this order that Atwell now appeals.

DISCUSSION

1. The felony charge

¶ 6. Atwell asserts that he was never charged with a prior felony DUI and should not have been charged with a third-offense felony. He also argues the lower court erred in permitting the State to use two out-of-state DUI convictions to establish the predicate for the felony charge. He also alleges that one of the prior convictions was more than five years old at the time of his conviction and could not be used to establish the third offense felony charge.

¶ 7. The felony DUI statute states that for “any third or subsequent conviction of any person violating subsection (1) of this section, the offenses being committed within a period of five years, such person shall be guilty of a felony.” Miss.Code Ann. § 63-ll-30(2)(c) (Rev. 1996). It is not required that the predicate convictions be felonies, only that they be convictions for driving under the influence within the past five years. Atwell had been twice convicted of driving while intoxicated in the State of Georgia, on October 19, 1995, and October 7, 1996. Both of these prior convictions were within the required five-year period to sustain the felony charge in June 2000.

¶ 8. The fact that the prior convictions occurred in another state does not affect the felony status of Atwell’s crime. This statute specifically permits out-of-state convictions to be used for determining whether the charge was a first, second, third or subsequent offense, as well as in setting the penalty. Miss.Code Ann. § 63-11-30(7) (Rev.1996).

2. The guilty plea

¶ 9. Atwell claims multiple errors stemming from the entry and acceptance of his guilty plea: he never entered a guilty plea; the petition to enter the plea was forged by defense counsel; the petition’s terms do not correspond with the sentencing order; Atwell was unconstitutionally denied the right to present witnesses to prove his innocence of the crime charged; and the judge who signed the sentencing order was not the judge who presided over the plea hearing.

¶ 10. Atwell’s various briefs and motions to this Court and the court below contain several contradictions. Atwell claims in one brief that he believed he was going to trial on June 8, 2000, but was instead summarily found guilty after his witness was told to leave the courtroom. In another brief, Atwell admits that he took the plea bargain but only because he had already spent six months in jail and wanted out in order to return to Tennessee immediately. Atwell claims at one point that he had never seen the guilty plea petition before examining the appeal record. Elsewhere he states that he may have seen the petition but only to sign it.

¶ 11. Atwell does not deny that his signature appears on the petition, which clearly informed him of the constitutional rights being waived by entering the plea, including that of a trial by jury. A trial is the necessary venue for presenting witnesses. By waiving his right to trial, At-well also waived his right to present defense witnesses.

¶ 12. In ruling on the petition for post-conviction relief, the court found that Atwell had voluntarily entered the guilty plea, a finding supported by Atwell’s sworn signature on the petition to enter the guilty plea. We place a strong presumption of validity upon an individual’s statements made under oath. Mowdy v. State, 638 So.2d 738, 743 (Miss.1994). The burden is upon Atwell to prove by a preponderance of the evidence that he is entitled to the requested post-conviction relief. Miss.Code Ann. § 99-39-23(7) (Rev.2000). Where, as here, the only evidence supplied by the petitioner is his own affidavit contradicting his prior sworn writing, the petitioner has failed to meet this burden. Harris v. State, 578 So.2d 617, 620 (Miss.1991).

¶ 13. Atwell also claims that his plea was coerced. In order for a plea to be voluntary, it cannot be the product of fear, violence, deception, or improper inducements. URCCC 8.04(A)(3). Atwell does not claim any of these. Rather, he states that he was coerced because he was held without bail pending trial and he wanted out of jail immediately. Atwell’s desire to get out of jail does not constitute coercion and is insufficient to render his plea involuntary.

¶ 14. We find that the lower court did not err in finding Atwell’s plea to be voluntarily given.

¶ 15. Atwell also complains that the entries onto the guilty plea petition were forged by his defense counsel and that the terms of the plea petition do not conform to the sentence handed down. These claims were not part of the errors assigned in the petition for relief presented to the trial court. They appear for the first time on appeal. Issues not timely presented to the trial court are deemed waived for purposes of appellate review. Read v. State, 430 So.2d 832, 833 (Miss.1983). We therefore do not address them here.

¶ 16. In the final assignment of error flowing from the original plea hearing, Atwell claims his hearing was presided over by Judge Robert Walker, not Judge Jerry O. Terry whose signature appears on the sentencing order. In support of this claim, Atwell supplies the affidavit of Ms. Linda DeSilvey who swears that she was in the courtroom at the plea hearing and Judge Walker was on the bench for the event. In the order denying post-conviction relief, Judge Terry points out that his original signature appears on the sentencing order, just above that of At-well’s acknowledging the conditions of his suspended sentence.

¶ 17. The presumption of accuracy of documents and of signatures on them is strong. Yet even if we accept that a different judge may have presided over the hearing, Atwell presents no error which may be remedied. He does not allege that the document contains a sentence different than that imposed from the bench. He claims no injury at all. Without injury, there is no relief to be granted.

3. The revocation hearing

¶ 18. Atwell alleges these errors stemming from the revocation of his suspended sentence: Judge Terry lacked jurisdiction to revoke because he was not the sentencing judge; the revocation was improper because he abided by the conditions and returned to Tennessee; the court and probation officers should be held in contempt for failing to return him to Tennessee; and he was tried without counsel at the revocation hearing.

¶ 19. It is the Circuit Court of Harrison County which retained jurisdiction over Atwell’s suspended sentence, not a particular judge in the circuit. The court has authority to revoke part or all of a suspended sentence for violation of the conditions of that suspension. Miss.Code Ann. § 47-7-87 (Rev.2000). The identity of the judge who revoked probation is not the basis for objection.

¶ 20. Atwell also argues that the suspended sentence should not have been revoked at all because he did not violate the conditions by leaving Mississippi. Instead, he alleges that he had a right to leave the State. The suspended sentence order permitted supervision to be transferred to either Tennessee or Georgia, if accepted. Both Mississippi and Tennessee participate in the Interstate Uniform Act for Out Of State Parolee Supervision. Miss.Code Ann. § 47-7-71 (Rev.2000); Tenn.Code Ann. § 40-28-401. This act permits transfer of supervision for probationers. Miss.Code Ann. § 47-7-71(1) (Rev.2000). The purpose of the act is to facilitate transfers of supervision between participating states. However, there is no absolute obligation on the part of the intended receiving state to accept such a transfer. Id. Thus, the qualification that Atwell be accepted for transfer.

¶ 21. Because transfer is not automatic, Atwell was required to comply with the procedures necessary to make application to Tennessee for transferring his supervision. He provides no evidence that he ever attempted to comply with the procedures necessary or that Tennessee accepted him. Until the transfer was effective, Atwell’s leaving Mississippi constituted a violation of the conditions of his suspended sentence and was a valid ground for revocation.

¶ 22. We also point out that the reason given for the first petition to revoke was Atwell’s failure to report to his probation officer, not for leaving the state. Atwell argues that he did report as required but to a Biloxi probation officer, not a Gulfport one. The trial court record indicates At-well met with his probation officer once, the day after sentence was imposed, then never returned. Atwell supplies another affidavit from Ms. DeSilvey swearing she drove him to his probation meetings in Biloxi. Regardless of how the conflicting evidence was resolved, there were also other grounds alleged, including that Atwell had been charged with another DUI. The order revoking probation stated that At-well “confesses that he violated his probation.” Therefore, whatever ground was the one to which Atwell confessed, that was an adequate basis for revocation.

¶ 28. Finally, Atwell claims that he was not given benefit of counsel at his revocation hearing. He claims as an indigent, he was entitled to a court-appointed lawyer. The lower court found Atwell did not request counsel, a finding Atwell vehemently denies.

1Í 24. Atwell applied to the supreme court for appointment of counsel for assistance with this appeal. There is nothing to indicate that he ever requested counsel for the revocation hearing. Even had Atwell done so, there is usually no right to counsel at that stage of criminal proceedings. Riely v. State, 562 So.2d 1206, 1209 (Miss.1990). The probationer has the right to counsel at a revocation hearing only if the issues are complex and the case difficult to develop. Id. Given the straightforward nature of the case, appointment of counsel was not needed.

4. Denial of bail ‘pending appeal

¶ 25. Finally, Atwell claims that he was constitutionally entitled to bail during this appeal. A defendant appealing from his original conviction may petition for bah while his appeal is under review. Miss.Code Ann. § 99-35-115 (Rev.2000). Atwell is not pursuing a direct appeal of his conviction, but review of the denial of post-conviction relief. Bail is not permitted for such prisoners. Miss.Code Ann. § 99-39-25(4) (Rev.2000).

¶ 26. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY DENYING POST CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THE APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


text:
    Eural M. SMITH, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00523-COA.
    Court of Appeals of Mississippi.
    April 22, 2003.

      Walter E. Wood, Ridgeland, Attorney for Appellant,
    Office of the Attorney General by Scott Stuart, Attorney for Appellee.
    Before SOUTHWICK, P.J., BRIDGES and CHANDLER, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. Eural Smith appeals from his conviction on the charge of armed robbery. Smith alleges a violation of his Fifth Amendment right to remain silent, that certain evidence should have been admitted, and that the evidence does not support conviction. We disagree and affirm.

FACTS

¶ 2. On the morning of August 7, 2000, two men pulled Joe Watts, Sr., from his car as he arrived at his place of employment, Noble Watts Jewelry on the courthouse square in Canton. Mr. Watts, then in his late seventies, was dragged into the bushes and robbed of his personal jewelry at gunpoint. He sustained moderate injuries as a result.

¶ 3. The two thieves initially fled on foot, drawing the attention of Charles Worley, who was walking to his parked vehicle. Believing that something was amiss, Wor-ley asked that his wife, who was sitting in the vehicle’s driver’s seat, follow the two men. A short distance later, Mr. Worley saw a maroon car stop in the road, the two men enter the car, and the car leave the area. Worley wrote down the car’s license plate number and later gave it to police.

¶ 4. For several minutes before the robbery, Robert Chandler, a barber in a shop just a few doors down from the jewelry store, had watched two men walking back and forth on the sidewalk. He reported to police that the men appeared to be “casing” a site for a possible robbery.

¶ 5. After police were called to the scene and Worley’s statement was taken, police located Toshoney Thompson, the registered owner of the vehicle that Worley had identified. Thompson told police he had picked up Eural Smith and Kendrick Williams, friends of his, and given them a ride after they flagged him down. He also told police that Smith and Williams had planned the robbery of Watts in his presence. At trial, Thompson testified that he had actually seen the robbery while parked a short distance away in the parking lot of another barber shop waiting for it to open.

¶ 6. Smith presented no evidence. The jury convicted Smith of armed robbery.

DISCUSSION

1. Fifth Amendment violation

¶ 7. Smith’s first assignment of error concerns the following testimony given by Officer Earl Taylor of the Canton Police Department on direct examination:

Prosecutor: And did you participate in the arrest of the suspects?
Officer: Yes, sir.
Prosecutor: What can you tell the jury about that?
Officer: We received information that Eural Smith was located at 205 E Dobson Avenue. We went to that address ... and found Eural Smith inside the apartment under a bed hiding.
Prosecutor: And what did you do when you found him?
Officer: We placed him under arrest and brought him to headquarters.
Prosecutor: Did he cooperate with you? Officer: I advised him of his rights, but he didn’t want to talk.

¶ 8. Defense counsel objected to this as an impermissible comment upon the defendant’s right not to make a statement. Counsel moved for a mistrial. The jury was excused so that the prosecutor could explain the reason for the question:

Your Honor, the position of the State is that the question was directed toward cooperating during the arrest and trying to solicit information from the witness concerning the relative ease or struggle during the arrest process, and I would submit to the Court that the Court can instruct the jury to disregard that response, and if you’ll give me just a moment, I’ll give you some authorities for that.

¶ 9. The court denied the motion for a mistrial and admonished the jury to ignore the comment. Smith argues this was a violation of his rights under the Fifth Amendment of the United States Constitution. He further argues that it is not curable with an instruction to disregard.

¶ 10. The Fifth Amendment right to refuse to give self-incriminating evidence has long been recognized as a fundamental one. Permitting comment at a criminal trial upon the exercise of that right constitutes a violation of the Fifth Amendment. Griffin v. California, 380 U.S. 609, 613-14, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Beginning over a century ago, the rule in Mississippi was that any comment, no matter how trivial, on a defendant’s exercise of the right to remain silent constituted automatic reversible error. Yarbrough v. State, 70 Miss. 593, 12 So. 551 (1893). This was so even when the prosecution did not intend to make reference to the defendant’s silence; rather, the test was whether the statement could reasonably be construed as a comment upon the defendant’s silence. Peterson v. State, 357 So.2d 113, 115 (Miss.1978) (citing Reddick v. State, 72 Miss. 1008, 16 So. 490 (1895)).

¶ 11. This rule of incurable error has pried its way into some modern cases. See Davis v. State, 767 So.2d 986, 999 (Miss.2000); McGilberry v. State, 741 So.2d 894, 907 (Miss.1999). Equally if not more numerous cases that apply a harmless error analysis will be discussed later. The foundation on which this rule of absolutism was built was a statute, now repealed. “The failure of the accused, in any case, to testify shall not operate to his prejudice, or be commented upon by counsel.” Miss.Code Ann. § 13-1-9 (1972), repealed 1991 Miss. Laws ch. 575, § 141. This statute was strictly construed as requiring automatic reversal under all circumstances once comment on the defendant’s silence had been made. Lee v. State, 435 So.2d 674, 677 (Miss.1983).

¶ 12. Though the old doctrine is on occasion still cited, this State’s appellate courts have also applied the United States Supreme Court’s analysis with respect to error under the Fifth Amendment. Commenting upon a defendant’s silence violates the prohibition against compelled incrimination, but it may be a constitutional error which, in the setting of a particular case, is harmless. Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

¶ 13. The Chapman court fashioned the rule that federal constitutional error can be held harmless if the reviewing court is able to declare it was harmless beyond a reasonable doubt. Id. at 24, 87 S.Ct. 824. If there exists a reasonable possibility the error contributed to the conviction, it cannot be deemed harmless. Id. The Mississippi Supreme Court has recognized the primacy of the Chapman analysis on this issue of ■ constitutional law. Williams v. State, 761 So.2d 149, 154 (Miss.2000). The analysis has been applied on many occasions. Conley v. State, 790 So.2d 773, 793 (Miss.2001); Williams v. State, 761 So.2d 149, 154 (Miss.2000); Palm v. State, 748 So.2d 135, 143 (Miss.1999); Taylor v. State, 672 So.2d 1246, 1266-67 (Miss.1996).

¶ 14. Even before this state’s self-incrimination statute was repealed, the Supreme Court applied Chapman while simultaneously distinguishing the absolute rule of incurable error on the facts of the case. Lee, 435 So.2d at 677-78. With the repeal of section 13-1-9, the uneasy balancing of conflicting old and new rules is no longer necessary. Rather, we undertake de novo review to determine the harmlessness of such1 errors. Palm, 748 So.2d at 143.

¶ 15. Another reason for not giving undue weight to the older case authorities is that the Supreme Court has in another context determined that the admissibility of evidence is a matter solely within the prerogatives, of the judicial branch and cannot be controlled by statute. Whitehurst v. State, 540 So.2d 1319, 1324 (Miss.1989) (in conflict between a statutory bar and an evidentiary rule that evidence was admissible, the Rules of Evidence control over a statute). This judicial authority would apply equally to the effect of improperly heard evidence. Thus even had the statute not been repealed, the conclusion that it could effectively require reversal would have needed reconsideration.

¶ 16. On the record before us, we cannot say that the comment that Smith declined to give a statement upon arrest contributed in any way to his conviction. Smith was identified by a co-indictee; the facts of the crime were largely beyond dispute. The statement was harmless.

¶ 17. We also note that the question apparently was an attempt to elicit that Smith resisted arrest. An unexpected response was received. The prosecutor’s lack of improper intent does not affect the harmlessness, but it does reduce the need for further corrective action. “If a prosecuting attorney, who is presumed to know better, persists in making erroneous and prejudicial remarks in his argument before the jury, then the trial court should deal harshly with him to the extent of sanctions, reprimands and contempt.” McGil-berry, 741 So.2d at 927. Those considerations are inapplicable.

2. Exclusion of evidence

¶ 18. Smith next alleges the trial court erred in failing to admit documentary evidence of a murder indictment against one of the witnesses, Kendrick Williams. Williams had been indicted in another case unrelated to the robbery of Joe Watts. The charges against Williams were dismissed as part of his plea agreement in exchange for his testimony against Smith at trial. Defense counsel cross-examined Williams at some length regarding the arrangement before asking that the indictment be entered into evidence. The State objected and a bench conference was had off the record. At the conclusion of the conference, the court sustained the objection to admitting the indictment.

¶ 19. Smith claims he was prejudiced by the exclusion of the indictment as it tended to show Williams lacked credibility and that he had a motive to lie. Evidence which tends to show such bias is admissible. M.R.E. 616. However, evidence which is needlessly cumulative may be excluded by the court. M.R.E. 403. Whether to admit or exclude evidence is a matter within the discretion of the trial court. Thompson Machinery Commerce Corp. v. Wallace, 687 So.2d 149, 152 (Miss.1997). Reversal, consequently, is only for an abuse of that discretion.

¶ 20. The exclusion of the document could not have prejudiced Smith. Defense counsel ably cross-examined Williams and read to the jury the relevant portion of a transcript of Williams’s plea hearing. The district attorney stated that the murder indictment was being dismissed. In exchange, Williams was to testify against Smith. The jury certainly understood without having a copy of the indictment that the dismissal of the murder charge against Williams was contingent upon the district attorney’s satisfaction with Williams’s testimony against Smith.

¶ 21. Williams’s potential motive to lie was shown. The indictment was irrelevant. Although the trial court did not state the ground for sustaining the objection, we find that the evidence was cumulative and the trial court did not abuse its discretion in excluding the indictment.

8. Weight of the evidence

¶ 22. Finally, Smith argues the verdict was against the overwhelming weight of the evidence. He contends there was no evidence to connect him with the crime and no witness could positively identify him. In essence, he challenges both the weight and sufficiency of the evidence presented against him. In reviewing the sufficiency of evidence, we take as true all evidence supporting or tending to support the verdict, as well as all reasonable inferences to be drawn from that evidence. Harrell v. State, 583 So.2d 963, 964 (Miss.1991). Likewise, in looking at the weight of the evidence, we take the evidence in the light most favorable to the verdict and reverse only where we find that no reasonable, hypothetical juror could have found the defendant guilty. Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983).

¶ 23. There was sufficient and weighty evidence consistent with guilt. Taking as true the testimony presented, Smith was a principal in both the planning and execution of this robbery. The weight to be given the testimony of two co-indictees is a matter of credibility left in the jury’s hands.

¶ 24. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OP CONVICTION OF ARMED ROBBERY AND SENTENCE OF FORTY THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

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


author: McMILLIN, C.J.,

text:
    James D. HOBSON, Jr. and Joseph G. Strickland, Appellants, v. CITY OF VICKSBURG, Mississippi and the Kansas City Southern Railway Company, Appellees.
    No. 2001-CA-01640-COA.
    Court of Appeals of Mississippi.
    June 17, 2003.

      David M. Sessums, Vicksburg, attorney for appellant.
    Steven Todd Jeffreys, Bobby D. Robinson, Vicksburg, Charles Edwin Ross, Jackson, Nancy Davis Thomas, Vicksburg, attorneys for appellee.
    Before MCMILLIN, C.J., LEE and IRVING, JJ.
   McMILLIN, C.J.,

for the court.

¶ 1. The appellants in this case, James Hobson and Joseph Strickland, own certain real property lying within the corporate limits of the City of Vicksburg. They contend that they have been denied reasonable access to their property along Fairground Street because of the City’s decision to close an iron bridge that carried the roadway over a grade level railroad crossing. Hobson and Strickland maintain that the City has a presently-enforeeable contract with the railroad (Kansas City Southern Railway Company) that requires the railroad to maintain the bridge and that the City has wrongfully failed to enforce the contract, choosing instead to close the bridge to public traffic. Hobson and Strickland commenced this action in Warren County Circuit Court seeking a writ of mandamus to compel city officials to enforce the City’s rights under the contract with the railroad by requiring the railroad to repair and maintain the bridge to a level that it would again be safe for vehicular and pedestrian traffic. In the alternative, Hobson and Strickland asked that the City itself be compelled to repair and re-open the bridge. The City defended the action, raising several defenses, but also brought the railroad in as a third-party defendant. The third-party complaint essentially asserted that, if the City were found to have any responsibility to Hobson and Strickland to repair or maintain the bridge, then the railroad should assume those responsibilities under the terms of the contract.

¶ 2. The circuit court granted the City’s motion for summary judgment on the basis that mandamus would not lie because Hob-son and Strickland had an adequate remedy at law, which the court concluded was an inverse condemnation action for damages associated with the loss of access caused by the closing of the bridge. This ruling had the effect of rendering the third-party complaint moot since that cause of action was contingent on the City having been adjudicated to have some sort of liability to Hobson and Strickland.

¶ 3. We affirm.

I.

Facts

¶4. The contract in question was entered into on May 23, 1895, between the City and Kansas City Southern’s predecessor in interest, the Yazoo and Mississippi Valley Railroad Company. The parties do not appear to contest the terms of this contract that are relevant to the issues before this Court. The railroad was permitted to lay its tracks across the right of way of Fairground Street, in exchange for which the railroad agreed to construct and maintain an iron bridge over its tracks for use by vehicular and foot traffic using Fairground Street. Over time, the bridge fell into serious disrepair to the point that it was determined to be a safety hazard. In the exercise of its police power to protect the health and safety of the general public, the City physically barricaded the bridge in approximately 1993 and in 1995, the City’s official minute book reveals the adoption of “an Order closing the bridge on Fairground Street over railroad tracks to traffic per recommendation of City Engineer.”

¶ 5. In their complaint, filed July 7, 2000, Hobson and Strickland assert that they are the owners of real property abutting Fairground Street and that the street represents their only access to their property. The complaint seeks the issuance of a writ of mandamus “directing the City of Vicksburg to enforce the terms, and provisions of the aforesaid indenture and agreement of May 23, 1895, so. as to require the Railroad Company to repair and maintain the overhead iron bridge ... or to undertake itself the opening and maintenance of Fairground Street.... ”

¶ 6. The City asserted several defenses, including a claim that the action was barred by the applicable statute of limitations and one that a writ of mandamus would not lie to compel what was a discretionary act. As noted earlier, the . circuit court granted summary judgment based on its conclusion that the property owners had an adequate remedy at law, thereby making the extraordinary remedy of mandamus inappropriate under existing law. The circuit court did not reach the issue of the statute of limitations. Nevertheless, the City continues to advance that theory of defense on appeal, pointing out that the City formally voted to close the bridge to traffic in 1995, more than three years prior to the commencement of this action.

¶7. We find it unnecessary to reach the question of whether an inverse condemnation action is an appropriate remedy in this case in determining that a writ of mandamus was not available to Hobson and Strickland. Substantial authority exists for the proposition that private citizens may resort to the remedy of mandamus to compel public officials and bodies to act only as to non-discretionary duties plainly required by law. USPCI of Mississippi Inc. v. State ex rel. McGowan, 688 So.2d 783, 789 (Miss.1997); Jackson County Sch. Bd. v. Osborn, 605 So.2d 731, 734 (Miss.1992); Powell v. State Tax Comm’n, 233 Miss. 185, 101 So.2d 350, 352-53 (1958). Even assuming for sake of argument that the City had a clear contractual right to compel the railroad to undertake to repair and maintain the bridge in question, there is no authority of which this Court is aware for the notion that a public body is compelled as a matter of law to insist on the strict enforcement of every available obligation owed it under any and all contracts and agreements entered into by the body. The decision to seek full compliance or to simply forego the enforcement of contract rights that might arguably exist is one that necessarily involves substantial exercise of discretion on the part of the governing body.

¶ 8. Considerations not directly related to the existence of bare contractual rights inevitably enter into the equation, including such fundamental considerations as whether the cost of enforcing compliance outweighs any benefit to be derived to the public body. Aside from these evident considerations of a general nature, we note that the railroad in this case apparently was prepared to contend that it had no contractual responsibilities under the contract, raising the distinct possibility of protracted litigation on the part of the City to determine if enforceable rights even existed. For these and other reasons, we are satisfied that a decision by a governmental body to attempt to enforce contractual rights alleged to exist in its favor is so caught up in discretionary decisions at almost every step of the process that it is not the kind of non-discretionary duty that can be compelled by an action in mandamus brought by a private citizen who claims that he would be benefitted in some way by the third-party’s performance.

¶ 9. It is a standard practice of this Court to affirm the decision of the trial court when we conclude that the right result has been reached even though the trial court employed reasoning different from that which we decide controls the issue. Mason v. Southern Mortg. Co., 828 So.2d 735, 738 (¶ 15) (Miss.2002). We conclude that to be the case in the matter of Hobson’s and Strickland’s claim of entitlement to a writ of mandamus against the City.

¶ 10. This conclusion renders moot any consideration of the statute of limitations defense asserted by the City and resisted by Hobson and Strickland based on legal arguments that we need not reach on the merits.

¶ 11. There is left the separate alternative claim by Hobson and Strickland that, notwithstanding any contractual duties of maintenance and repair belonging to. the railroad, the City has an ongoing duty to them to properly maintain and operate all of the public streets of the municipality, which would include all portions of Fairground Street, including the bridge that is now closed. Under this alternate theory, whether or not the City seeks the assistance of the railroad in rendering the bridge safe for public travel, the City has an independent duty to repair and maintain the bridge. A municipality, in the operation of the public streets within the municipality, has the authority under Section 21-37-7 of the Mississippi Code “to close and vacate any street or alley, or any portion thereof,Miss.Code Ann. § 21-37-7 (Rev.2001). The order in 1995 of the City closing the bridge to public traffic appears to have been an exercise of that authority. Such a closing would, of necessity, mark the end of the City’s previously-existing duty to suitably maintain and repair this part of the public streets of the municipality. For that reason, the assertion of a separate duty to repair on the part of the City independent of whether the railroad had some similar duties by way of contract must fail.

¶ 12. Admittedly, the statute quoted in part above proceeds to say that no such closing may be accomplished “except upon due compensation being first made to the abutting landowners upon such street or alley for all damages sustained thereby.” Miss.Code Ann. § 21-37-7 (Rev.2001). Hobson and Strickland claim in their complaint that they are abutting landowners to Fairground Street. Whether their land actually abuts the “portion thereof’ of Fairground Street that was closed by the 1995 action of the City within the meaning of Section 21-37-7 is not clear and would necessarily have to be the subject of an evidentiary inquiry. In all events, Hobson and Strickland made no claim in their complaint for compensation under this code section and, for that reason, our affir-mance of the trial court’s judgment is without prejudice to any right of compensation that these landowners may yet have under the statute.

¶ 13. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: IRVING, J.,

text:
    Clarence Troy WATSON a/k/a Glenn Lavel Bension, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01829-COA.
    Court of Appeals of Mississippi.
    June 17, 2003.

      Tom Sumrall, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before KING, P.J., THOMAS, IRVING and CHANDLER, JJ.
   IRVING, J.,

for the court.

¶ 1. Clarence Troy Watson was found guilty by a Harrison County jury of the crime of forcible rape. The trial judge sentenced Watson to twelve years in the custody of the Mississippi Department of Corrections. Watson filed a post-trial motion for a JNOV, or in the alternative, for a new trial. This motion was denied, and Watson has appealed. He argues on appeal that his right to a speedy trial was violated and that the evidence is insufficient to support the verdict. He also argues that the verdict of the jury is against the weight of the evidence.

¶ 2. Finding no reversible error, this Court affirms the trial court’s judgment.

FACTS

¶ 3. Watson worked at a hair salon as a custodian. Jane Moore worked as a cosmetologist at the same salon. Moore testified that on October 10, 1997, she had inn out of hair product supplies and that she was awaiting a delivery at that time. Watson informed Moore that he had a neighbor who had some hair product supplies that she could purchase. Moore went with Watson to his apartment and waited there while Watson went to get his neighbor. Watson returned to the apartment without the neighbor. He informed Moore that there was no neighbor who sold hair product supplies. Watson then attacked Moore from behind by grabbing her throat. Moore struggled, and the more she struggled the harder Watson pressed her throat. Moore then stopped struggling because he was hurting her and she could no longer breath.

¶ 4. Watson then moved Moore to the floor and sat on her chest while he removed her clothes. Moore asked Watson why was he attacking her. She was afraid for her life because Watson had made threats that he would kill her. Watson made actions like he was looking for a gun within the couch cushions. Moore thought Watson was crazy and mad. She tried to reason with him by telling him she would not tell anyone what happened between them and to just let her go back to work. Watson then tried to put his penis inside Moore while she scooted away from him. Moore testified that when it was all over with, she and Watson had sexual intercourse and Watson performed oral sex.

¶ 5. Moore returned to the hair salon and later so did Watson. Moore still feared that Watson would kill her and that he was possibly carrying a gun. Moore was so fearful and upset that she stepped outside the hair salon. Her co-workers testified that they noticed Moore’s strange behavior and followed her outside to ask what was wrong. She confided in the hair salon’s owner, Howard Pickens, and told him what had happened between her and Watson. Pickens then took Moore to the hospital where the staff performed a rape kit on her.

¶ 6. Understandably, Watson’s version of events differs from Moore’s. Watson testified that he and Moore went out on numerous occasions and that they had a consensual sexual relationship. Watson testified that on the day in question, he and Moore left the hair salon to have lunch together and sex at his apartment. Watson admits that he and Moore had sexual intercourse that day but denies that he used any force or threatened to kill Moore. Watson suggested that Moore charged him with rape after an argument that they had concerning his girlfriend. Watson testified that Moore was upset because she wanted him to end his relationship with his girlfriend so they could be alone in a relationship. Watson refused.

¶ 7. While Moore was in the hospital being examined and tested for rape, Watson was in the same hospital visiting his girlfriend who was a patient. Pickens testified that he saw Watson in the hospital, and he also saw Watson flee police and hospital security when they tried to approach him.

¶ 8. Watson was arrested on October 17, 1997, for the forcible rape of Moore. On March 31, 1998, Watson was indicted and on May 18, 1998, Watson waived arraignment and entered a plea of not guilty. Subsequently, various continuances were granted at the behest of both sides, as well as at the behest of the trial court acting sua sponte. The trial commenced on January 11, 2000. Other pertinent facts will be related during the discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Denial of Speedy Trial

¶ 9. Allegations of speedy trial violations are examined and determined on a case-by-case basis due to the factual specifics of each action. Brengettcy v. State, 794 So.2d 987, 991(¶ 7) (Miss.2001). A defendant’s right to a speedy trial is secured by the Sixth and Fourteenth Amendments to the United States Constitution and by Article III, Section 26 of the Mississippi Constitution of 1890. Giles v. State, 650 So.2d 846, 850 (Miss.1995). A chronology of the relevant dates in the case are as follows:

Oct. 17,1997 Watson arrested
Mar. 31,1998 Watson indicted
May 18, 1998 Waiver of Arraignment; Entry of Not Guilty Plea. Trial set for August 3,1998.
Jul. 29, 1998 Motion for Continuance requested by defense attorney — defense attorney not ready. Order issued that granted the continuance and reset the trial for November 2, 1998.
Aug. 28, 1998 Motion and Order for Continuance requested and granted by the trial court — assigned judge not available week of 11/2/1998 due previously set civil trial. Trial reset for December 7,1998.
Nov. 25, 1998 Motion to Dismiss, filed pro se
Dec. 7, 1998 Motion and Order for Continuance requested by the State— DNA pending with crime lab. Trial reset for March 8,1999.
Mar. 8, 1999 Motion and Order for Continuance requested by the State— crime laboratory results not complete. State motions to send evidence to another crime laboratory. Trial reset for May 10,1999.
Jun. 8, 1999 Motion to Dismiss, filed pro se
May 13, 1999 Motion for Continuance requested by the trial court — court tried civil case. Trial reset for September 7,1999.
Aug. 20, 1999 Motion and demand for Speedy Trial, filed pro se
Sept. 13, 1999 Order denying Watson’s motion to dismiss for failure to grant a speedy trial.
Sept. 17, 1999 Motion for Continuance requested by the defense attorney— defense attorney not available and engaged in trial in chancery court. Trial reset for November 15,1999.
Sept. 27, 1999 Order explaining that the trial was previously set to begin the week of September 8, 1999, but due to a short week due to the Labor Day holiday, the court announced that no trial would be conducted and the defense agreed to roll matter over to September 13, 1999, for trial. The order also stated that on September 13, 1999, defense requested continuance and trial was reset.
Oct. 15, 1999 Demand for Speedy Trial, filed pro se
Oct. 18, 1999 Motion to Dismiss— Right to Speedy trial violation, filed pro se
Nov. 19, 1999 Motion and Order for Continuance requested by the trial court — case not reached for trial due to ongoing civil trial. Trial reset for January 10, 2000.
Dec. 13, 1999 Demand for Speedy Trial, filed pro se
Jan. 4, 2000 Motion to Dismiss, filed pro se
Jan. 11, 2000 Trial begins

¶ 10. The constitutional right to a speedy trial attaches at the time of a formal indictment, information, or arrest. Birkley v. State, 750 So.2d 1245, 1249 (¶ 11) (Miss.1999). In reviewing a constitutional challenge, a Mississippi appellate court does not set a specific length of time as being per se unconstitutional, but instead a four-part balancing test articulated by the U.S. Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), is applied to determine if the right to speedy trial has been denied. Smith v. State, 550 So.2d 406, 408 (Miss.1989). The four Barker factors to consider are: (1) length of delay, (2) reason for delay, (3) the defendant’s assertion of his right to a speedy trial, and (4). the prejudice to the defendant. Barker, 407 U.S. at 530, 92 S.Ct. 2182. No one of the Barker factors is in itself dispositive, rather a totality of the circumstances is used. Jefferson v. State, 818 So.2d 1099, 1106 (¶ 11) (Miss.2002). “Nor is the balancing process restricted to the Barker factors to the exclusion of any other relevant circumstances.” McGhee v. State, 657 So.2d 799, 802 (Miss.1995).

The length of the delay

¶ 11. The Barker analysis begins with the first factor, length of delay, which operates as the triggering mechanism. Birkley, 750 So.2d at 1249 (¶ 13). In this case, we must calculate the delay from the date of arrest. Watson was arrested on October 17, 1997, and trial did not commence until January 11, 2000. Therefore, the delay at issue between the arrest and the trial is 817 days. Mississippi case law establishes that a delay of eight months or longer is presumptively prejudicial. Birkley, 750 So.2d at 1249 (¶ 14); State v. Ferguson, 576 So.2d 1252, 1254 (Miss.1991). Since this delay is longer than eight months, an analysis of the other Barker factors is required to resolve Watson’s denial of speedy trial issue.

The reason for the delay

¶ 12. The second Barker factor requires a determination of the reason for the delay and the party to whom it is attributable. Delays that are attributable to one party count against that party. Brengettcy, 794 So.2d at 993 - (¶ 13). The risk of “non-persuasion rests with the prosecution,” and where the record is silent as to the cause of delay, this factor must weigh in favor of the defendant. Id. Any delays in prosecution attributable to a defendant tolls the running of time. Handley v. State, 574 So.2d 671, 674 (Miss.1990). In Mississippi, continuances granted to the defendant not only toll the time but should be deducted from the total number of days considered in the Barker analysis. Flores v. State, 574 So.2d 1314, 1318 (Miss.1990). Any continuances for “good cause” will toll the running of time, and those dates are not counted against the State. Id.

¶ 13. At least 289 days elapsed between the date of Watson’s arrest and the date of his first trial setting on August 3, 1998. Thereafter, a number of continuances in this matter were ordered at the behest of both the prosecution and the defense, as well as the court acting sua sponte.

¶ 14. The record is silent as to why the case was not set for trial prior to August 2, 1998. The record does indicate that Watson had new counsel substituted on April 3, 1998. However, the record is silent as to the reason for the substitution. Also, it does not appear that the substituted counsel was retained by Watson since, in the order allowing the substitution, the substituted counsel is referred to as a voluntary contract criminal defender.

¶ 15. On July 29, 1998, Watson’s attorney requested a continuance of the August 3 trial date, and the case was reset for trial on November 2, 1998. From August 3, 1998, to November 2, 1998, is ninety-one days. Since Watson’s attorney requested this continuance, these days are charged against Watson and deducted from the 817 days involved.

¶ 16. On August 28,1998, the trial court sua sponte ordered a continuance for good cause since the assigned judge was not available the week of November 2, 1998, due to a previously-set civil trial. Watson’s trial was reset for December 7, 1998. From November 2, 1998, to December 7, 1998, is thirty-five days.

¶ 17. The supreme court has recognized that some continuances are granted because of overcrowded dockets and understaffed prosecutors, and in these cases this Barker factor will not be weighed heavily against the State. McGhee, 657 So.2d at 802. “What should therefore be obvious is that if a shortage of prosecutorial staff can be good cause for delay, surely shortage of judges is an equally good cause shown.” Id. at 803. Furthermore, the supreme court has held that the preempting of a trial by another case constitutes good cause. Id.

¶ 18. On December 7, 1998, the State requested a continuance because the DNA tests were pending with the crime laboratory. The trial judge found good cause existed for this continuance and reset the trial for March 8, 1999. From December 7, 1998, to March 8, 1999, is ninety-one days.

¶ 19. On March 8, 1999, the crime laboratory results still were not complete. The State requested a continuance and moved to send the DNA evidence to another laboratory. The trial court found good cause and continued the trial to May 10, 1999. However, the trial did not take place on this date, and the record reflects that on May 14, 1999, the trial court entered an order sua sponte resetting the case for trial on September 7, 1999. The order indicated that the case was not tried at the scheduled time because the trial court tried a civil case during that time. From March 8,1999, to September 7,1999, is 183 days.

¶ 20. The record reflects that on September 27,1999, the trial judge entered an order wherein he explained that the week of September 8, 1999, was a short week due to the Labor Day holiday and that no trials were conducted during that week. The order also reflects that the defense attorney agreed to continue the matter for trial on September 13, 1999. The order further reflects that on September 13, the State announced ready for trial but that the defense attorney requested a continuance because of a previously-scheduled trial in the chancery court. The order reset the case for trial on November 15, 1999. However, because of an ongoing civil case, Watson’s trial did not take place, and the trial court, on its on motion, continued the case to the next available date which was January 10, 2000. However, the trial did not commence until January 11, 2000.

¶ 21. From September 7, 1999, to January 11, 2000, is 126 days. Of this number, sixty-nine days are chargeable to Watson. This number is arrived at by adding the six days involved in the agreed continuance from September 7 to September 13 and the sixty-three days of delay resulting from the continuance, which Watson requested, from September 13 to November 15.

¶ 22. A recapitulation of the accounting shows that of the 817 days occurring between the date of Watson’s arrest and the date of his trial, only 160 days are clearly chargeable to him. Of the remaining 657 days, the trial court found good cause existed for delays totaling 366 days, leaving 291 days for which no explanation has been provided.

¶ 23. A finding of good cause is a finding of ultimate fact, and should be treated on appeal as any other finding of fact; it will be left undisturbed where there is in the record substantial credible evidence from which it could have been made. Walton v. State, 678 So.2d 645, 648-49 (Miss.1996). Although the record reflects that good cause existed for a substantial portion of the delay in bringing Watson to trial, we conclude that this factor weighs in Watson’s favor.

The assertion of the right to a speedy trial

¶ 24. The third Barker factor to consider is whether Watson asserted his right to a speedy trial before the actual trial on January 11, 2000. Watson had no duty to bring himself to trial, yet the Mississippi Supreme Court has found that the defendant “gains far more points under this prong of the Barker test where he has demanded a speedy trial.” Brengettcy, 794 So.2d at 994(1117) (citing Jaco v. State, 574 So.2d 625, 632 (Miss.1990)). Mississippi case law also differentiates a demand for a speedy trial as being distinct from a demand for dismissal due to violation of the right to a speedy trial. Id.

¶25. The record reflects that Watson filed three separate pro se demands for a speedy trial. Watson first asserted and demanded his right to a speedy trial four months before his trial on August 20,1999. On September 13, 1999, the trial court entered an order denying the defendant’s motion to dismiss for failure to grant a speedy trial. The trial court remarked that after reviewing the file and hearing the arguments of counsel, it found that there had been no violation of Watson’s constitutional or statutory speedy trial rights. Shortly thereafter, on October 15, 1999, Watson again filed a demand for his right to a speedy trial. A few days later on October 18,1999, Watson filed a motion to dismiss for violation of his constitutional and statutory rights to a speedy trial. As prejudice, Watson asserted presumptive prejudice by the length of the delay; interference with his liberty; disruption of his employment; drain of financial resources; curtailment of his associations; his subjugation to public obloquy; and creation of anxiety in himself, his family and his friends. Without waiting for the decision of the trial judge on his motion to dismiss, the record shows that Watson demanded his right to a speedy trial again on or around December 13, 1999. The State concedes that this Barker factor weighs against the State and in Watson’s favor. We agree.

Prejudice to the defendant

¶ 26. The final prong of the Barker analysis, prejudice to the defendant, has two aspects: (1) actual prejudice to the accused in defending his case and, (2) inordinate delay. Atterberry v. State, 667 So.2d 622, 627 (Miss.1995). “There are three examples of prejudice which an accused may suffer because of the delay: (1) oppressive pretrial incarceration, (2) anxiety and concern of the accused, and (3) impairment of the defenses.” Id. Watson is not required to put forth an affirmative showing of prejudice to prove his right to a speedy trial has been violated. Id. Nevertheless an absence of prejudice weighs against a finding of a violation. Id.

¶ 27. Watson has not demonstrated any actual prejudice that he has experienced. The extremely lengthy delay in Watson’s case presents presumptive prejudice only. However, on appeal, Watson asserts not only presumptive prejudice but actual prejudice as well. Watson contends that he had three witnesses who would have been able to testify at the time of his arrest that he and the victim had a consensual sexual relationship.

¶ 28. The unavailability of witnesses as actual prejudice has been presented and reviewed by the supreme court in several eases. For instance, in Rhymes v. State, 638 So.2d 1270 (Miss.1994), the supreme court rejected the argument that the defendant was prejudiced by the inability to call the victim’s brother as a witness because there was no proof that the defendant had secured the witness prior to trial and lost him due to the delay, and there was no proof that the defendant had attempted to secure his appearance by subpoena. Id. at 1274.

¶ 29. The argument made by Watson concerning the unavailability of the witnesses was raised by Watson for the first time in the hearing on his post-trial motion. He did not cite the absence of the witnesses as prejudice when he filed his motion to dismiss for denial of a speedy trial in October 18, 1999. At the hearing on Watson’s motion for a new trial, Watson’s trial attorney testified that he had no recollection of a discussion of witness testimony with Watson, nor had he requested that any witnesses be subpoenaed. This denial by Watson’s trial attorney of any witness testimony regarding an ongoing sexual relationship between Watson and Moore refutes the actual prejudice asserted by Watson. Thus this assertion regarding the unavailability of witnesses lacks merit.

¶ 30. Watson has not shown any actual prejudice that he has suffered in the defense of his case nor has he shown this Court that there has been an interference with his liberty. Therefore, this factor cannot weigh in his favor. Without a showing of actual prejudice, Watson is left with only presumptive prejudice. “Where the delay is neither intentional or egregiously protracted, and where there is no showing of actual prejudice, the balance is struck in favor of rejecting the defendant’s speedy trial claim.” Rhymes, 638 So.2d at 1275.

¶ 31. Having reviewed all the Barker factors, based on the facts of this case, and considering the totality of the circumstances, we conclude that Watson was not denied his constitutional right to a speedy trial. In reaching this conclusion, we are mindful that Watson did demand a speedy trial on three separate and distinct occasions. However, his first demand was made a little less than five months before his trial. During the nearly five months that elapsed after his demand was made, the trial court found good cause existed for the entire delay. In fact, after Watson filed his pro se motion for a speedy trial on August 20, 1999, his trial counsel sought and obtained a delay of the trial which was set for September 13, 1999, just twenty-three days after Watson’s demand for a speedy trial. Given these facts, and especially the fact that Watson has failed to demonstrate any actual prejudice, we find that the trial court did not err in denying Watson’s motion to dismiss for violation of his constitutional and statutory right to a speedy trial.

2. Sufficiency and Weight of the Evidence

¶ 32. Watson argues that he should have been granted a directed verdict at the conclusion of the State’s case and that he should have likewise been granted a JNOV after the jury’s .verdict due to the legal insufficiency of the evidence. Watson further argues that he should have been granted a new trial because the jury’s verdict was against the overwhelming weight of the evidence.

¶ 33. In challenges to the sufficiency of evidence, the standard of review requires that the evidence be considered in the light most favorable to the State and that all credible evidence consistent with Watson’s guilt be accepted as true. McRee v. State, 732 So.2d 246, 249(¶ 9) (Miss.1999). In reviewing a claim of insufficient evidence, an appellate court must review all of the evidence in the light most consistent with the jury’s verdict. Smith v. State, 802 So.2d 82, 85(¶10) (Miss.2001). The prosecution is given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Id. “If the facts and inferences so considered point in favor of the accused with sufficient force that reasonable men could not have found beyond a reasonable doubt that he was guilty, reversal and discharge are required.” Mangum v. State, 762 So.2d 337, 341(1111) (Miss.2000). If the evidence is found to be legally insufficient, then discharge of the defendant is proper. McRee, 732 So.2d at 249(¶ 9).

¶ 34. As distinguished from a JNOV, a motion for a new trial asks this Court to vacate the judgment on grounds related to weight of the evidence, not sufficiency of the evidence. Am appellate court's standard of review for claims that a conviction is against the overwhelming weight of the evidence is as follows:

[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.” A new trial will be not be ordered unless the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction “unconscionable injustice.”

Smith, 802 So.2d at 85-86(¶ 11) (citing Crawford v. State, 754 So.2d 1211, 1222(¶ 30) (Miss.2000)). Matters regarding the weight and credibility of the evidence are to be resolved by the jury. McRee, 732 So.2d at 249(¶ 9).

¶ 35. In other words, Watson’s insufficiency of the evidence argument is a question of pure law and is directed to the trial court’s denial of his post-trial motion for JNOV, while his argument that the verdict was against the overwhelming weight of the evidence is directed to the trial court’s denial of his motion for a new trial and addresses the sound discretion of the trial court. Collier v. State, 711 So.2d 458, 461-62 (¶ 13) (Miss.1998). As such, a greater quantum of evidence favoring the State is necessary for the State to withstand a challenge that the verdict is contrary to the overwhelming weight of the evidence, as distinguished from the legal sufficiency of the evidence argument. Id. Under our established case law, the trial judge should set aside a jury’s verdict only when, in the exercise of his sound discretion, he is convinced that the verdict is contrary to the substantial weight of the evidence. Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983).

¶ 36. Watson attacks the credibility of the evidence primarily through the victim’s testimony. Specifically, Watson explains that Moore’s testimony is ambiguous in regards to sexual penetration and the use of force or threats. Watson emphasizes that without his stipulation to the fact that he and Moore had sexual intercourse the record would be unclear if any intercourse occurred at all. Watson further attacks the evidence as being scant and questionable with his comments that the rape kit did little to corroborate that there was forcible sex. Watson repeatedly contends that there was insufficient physical evidence that Moore was forcibly raped or that she acted out of fear. On the element of force, he argues that the evidence is not sufficient, credible, or substantial. However, when the evidence is viewed in the fight of the appropriate standard, Watson’s argument is clearly without merit.

¶ 37. First, as to Watson’s assertion that Moore’s testimony was unsubstantiated and uncorroborated, our case law clearly holds that the “unsupported word of the victim of a sex crime is sufficient to support a guilty verdict where that testimony is not discredited or contradicted by other credible evidence, especially if the conduct of the victim is consistent with the conduct of one who has been victimized by a sex crime.” Collier, 711 So.2d at 462(¶ 15). “A person may be found guilty of rape on the uncorroborated testimony of the prosecuting -witness.” Otis v. State, 418 So.2d 65, 67 (Miss.1982). The supreme court has not only recognized as corroborating evidence the victim’s physical and mental condition after the incident, but the fact that she immediately reported the rape as well. Collier, 711 So.2d at 462(¶ 15).

¶ 38. Moore’s mental state following the rape was consistent with the conduct of someone who had been raped. Moore’s boss described Moore as looking “crazy” when she returned to the hair salon. Moore told her boss about the rape. Her boss took her to the hospital for a medical analysis. The police were called. This activity is indicative of a rape having occurred.

¶ 39. Watson categorically denies that he forced Moore to have intercourse with him and maintains that this is a case of his word against her word. Watson insists that Moore’s testimony stretches credulity. Moore fervently maintained in her testimony that she did not agree to have sex with Watson and that the intercourse was against her will. She testified that she struggled with Watson but that he pushed her to the floor and threatened her. Although there were few small signs of external injury and no sperm was found, the presence of either is not considered absolutely determinative of rape. “The rule is that physical force on the part of the assailant, or physical resistance on the part of the victim, is not necessary if the proof shows beyond a reasonable doubt that the female surrendered because of fear arising out of a reasonable apprehension of great bodily harm.” Davis v. State, 406 So.2d 795, 801 (Miss.1981) (citing Fields v. State, 293 So.2d 430, 432 (Miss.1974)). The testimony of Moore evidenced a reasonable apprehension of bodily harm.

¶ 40. It is the jury’s duty to weigh conflicting testimony and witness credibility. Gandy v. State, 373 So.2d 1042, 1045 (Miss.1979). Juries are empaneled to resolve questions of fact. We will not substitute our factual findings for that of the jury in a contest of credibility. The conflict between the testimony of Watson and Moore was properly resolved by the jury. Collier, 711 So.2d at 462 (¶ 18).

¶ 41. This contention of Watson is without merit.

¶ 42. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF RAPE AND SENTENCE OF TWELVE 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., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.

      . The victim's name has been changed to protect her identity.


author: LEE, J.,

text:
    Shirley Darlene NORMAN, Appellant, v. MAGNOLIA REGIONAL HEALTH CENTER, by and through its Chief Executive Officer, Diane BOATMAN, and its Board of Directors and the Mississippi Employment Security Commission, Appellees.
    No. 2002-CC-01223-COA.
    Court of Appeals of Mississippi.
    June 17, 2003.

      Gertrude A. Reid, Corinth, attorney for appellant.
    B. Ray Therrell, II, attorney for appel-lee.
    Before McMILLIN, C.J., LEE and IRVING, JJ.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. Shirley Darlene Norman began working in 1998 as a cook in the food services department at Magnolia Regional Health Center. On August 15, 2001, Norman was discharged for misconduct in using profane language towards her supervisor. The next day, Norman filed for unemployment benefits, from which she was disqualified. On August 31, 2001, Norman filed a notice of appeal.

¶ 2. On September 27, 2001, a hearing was held before the appeals referee, who found that Norman was discharged for misconduct connected with her work, and so disqualified for unemployment benefits under Miss.Code Ann. § 71-5-513 A(l)(b) (Supp.2002). The board of review affirmed the referee’s findings, as did the Alcorn County Circuit Court. Norman now appeals to this Court asserting that the lower court erred in denying her unemployment benefits under the circumstances surrounding her discharge. Finding no error, we affirm.

DISCUSSION

¶ 3. In reviewing an administrative agency’s findings and decisions, the standard of review by this Court is well settled:

An agency’s conclusions must remain undisturbed unless the agency’s order 1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates one’s constitutional rights. A rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise. Lastly, this Court must not reweigh the facts of the case or insert its judgment for that of the agency.

Lewis v. Mississippi Employment Sec. Comm’n, 767 So.2d 1029(¶ 9) (Miss.Ct.App.2000).

¶ 4. The referee found, and the board of review and the Alcorn County Circuit Court affirmed, that Norman was discharged due to misconduct connected with her work. The referee’s opinion cites to Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982), for a definition of the term “misconduct.”

[T]he meaning of the term “misconduct,” as used in the unemployment compensation statute, was conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer, came within the term. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertences [sic] and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion were not considered “misconduct” within the meaning of the statute.

¶ 5. The referee’s findings of fact refer to a final warning Norman received in October of 1999, after she used abusive, threatening language towards a co-worker. Norman admits that she was guilty of the violation for which she received the warning. On August 15, 2001, Norman referred to a supervisor in a derogatory manner, using profane language. Norman admits to making the derogatory statements about her supervisor, but only in response to a derogatory racial remark made towards her by her supervisor. However, Norman never mentioned the racial remark in subsequent meetings with her employer, only mentioning that her supervisor referred to her as “Ms. Thing.” Norman produced no evidence or witnesses to testify to the use of a derogatory racial remark made by her supervisor. Her employer did testify that there were witnesses who heard the supervisor call Norman “Ms. Thing” frequently and that she appeared to like the nickname.

¶ 6. As previously noted in our standard of review, a rebuttable presumption exists in favor of the administrative agency, and Norman, as the challenging party, has the burden of proving otherwise. We are not permitted to reweigh the facts of the case or insert our judgment for that of the agency and, having found substantial evidence to support the decision and having found no arbitrary or capricious action to exist on the part of the MESC, we affirm the lower court.

¶ 7. THE JUDGMENT OF THE AL-CORN COUNTY CIRCUIT COURT IS AFFIRMED.

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