author: KING, P.J.,

text:
    Robert M. COOLEY, Appellant, v. William BRAWNER, Appellee.
    No. 2002-CA-01549-COA.
    Court of Appeals of Mississippi.
    April 6, 2004.
    Rehearing Denied June 15, 2004.
    Certiorari Denied Sept. 2, 2004.

      Ron L. Woodruff, Jim Waide, Tupelo, attorneys for appellant.
    Clinton M. Guenther, Tommie G. Williams, Greenwood, attorneys for appel-lee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   KING, P.J.,

for the Court.

¶ 1. Robert Cooley brought a medical malpractice action against Dr. William Brawner. On August 27, 2002, the Circuit Court of Lee County dismissed the complaint. Aggrieved by the dismissal, Cooley has appealed and asserts the following issues:

1. Whether service of process on a party’s receptionist, who represents herself to be the party’s appointed agent is proper service pursuant to Rule 4 of the Mississippi Rules of Civil Procedure, especially when there is no doubt that the receptionist handed the papers to the party.
2. Whether fraudulent misrepresentation committed by a party’s employee as a receptionist, in the ordinary course and scope of her employment, represents good cause for serving process within 120 days, especially when the party showed due diligence by immediately reserving the papers when he had notice that service of process was contested.

STATEMENT OF FACTS

¶ 2. On October 25,1999, Cooley saw Dr. Brawner at the Tupelo Eye Clinic for problems associated with his left eye. Cooley asserts that Dr. Brawner negligently failed to diagnose a detached retina which resulted in a substantial loss of vision in his left eye.

¶ 3. On October 11, 2001, Cooley filed a complaint against Dr. Brawner for medical malpractice in the Circuit Court of Lee County. The process was also issued on October 11, 2001.

¶ 4. On February 1, 2001, Leanna Weathers, a process server, served the complaint and the summons on Shirlene Davis, the receptionist at Tupelo Eye Clinic where Dr. Brawner is employed. Dr. Brawner was not personally served.

¶ 5. On March 1, 2002, without answering the complaint, Dr. Brawner filed a motion to dismiss claiming that service was not made within 120 days of the complaint’s being filed. The 120 days was calculated by both parties to be February 8, 2002. Dr. Brawner claims that he was not personally served as required by Mississippi Rules of Civil Procedure Rule 4 because his receptionist was not his agent for'service by appointment or by law.

¶ 6. On August 19, 2002, the trial judge held a hearing on the motion. The trial judge found that service of the complaint upon Dr. Brawner’s receptionist was not effective service, and no good cause had been shown why service was not effectuated within 120 days. The trial judge entered an order dismissing the complaint on August 27, 2002.

ISSUES AND ANALYSIS

I.

Whether service of process on a party’s receptionist, who represents herself to be the party’s appointed agent is proper service pursuant to Rule 4 of the Mississippi Rules of Civil Procedure, especially when there is no doubt that the receptionist handed the papers to the party.

¶ 7. Cooley contends that Shirlene Davis, Dr. Brawner’s receptionist, satisfies the definition of an agent for the purposes of Rule 4 of the Mississippi Rules of Civil Procedure and thus, service was properly-effectuated on February 1, 2002, within the 120 day time period.

¶ 8. Our analysis begins with a review of the applicable provision of Mississippi Rule of Civil Procedure 4(d)(1)(A) which states:

The summons and complaint shall be served together. Service by sheriff or process server shall be made as follows: (1) Upon an individual other than an unmarried infant or a mentally incompetent person, (A) by delivering a copy of the summons and of the complaint to him personally or to an agent authorized by appointment or by law to receive service ofprocess[J

(emphasis added).

¶ 9. There is no argument by either party that the receptionist was a lawfully designated agent to receive service of process for Dr. Brawner. The issue is whether the receptionist through custom and practice had a de facto appointment to receive service of process. The resolution of this issue requires that principles of agency law be considered.

¶ 10. “An agent may have either express authority to receive process on behalf of the defendant, or may enjoy apparent authority.” Jeffrey Jackson, Mary Miller, Ronald C. Morton, & Justin Mathe-ny, Civil Procedure, 2 Ency. of Miss. Law § 13:33 (Jeffrey Jackson & Mary Miller eds.2001). Express agents are actual agents who have been in fact authorized by the principal to act on their behalf. 2A C.J.S. Agency § 20 (1972). An apparent or ostensible agent is one whom the principal has intentionally or by want of ordinary care induced third parties to believe is his agent, although no authority has been conferred on him either expressly or by implication. Id. An apparent agent is one who reasonably appears by third parties to be the authorized agent of the principal. Id.

¶ 11. The question of whether or not a person has apparent authority is a factual issue to be decided by the chancellor or by the jury, if in the circuit court. Clow Corp. v. J.D. Mullican, Inc. 356 So.2d 579, 583 (Miss.1978), citing McPherson v. McLendon, 221 So.2d 75 (Miss.1969).

¶ 12. No live testimony was offered on the motion. However, the affidavits of both Davis, Dr. Brawner’s receptionist, and Weathers, the process server, were made a part of the record on the motion.

¶ 13. Davis’ affidavit, presented by the defense, stated that her duties as receptionist “are simply to answer the phone and to check patients in and out.” Davis’ affidavit stated that an unidentified female came in the office on February 1, 2002, and delivered an envelope, and that at no time did the woman identify herself or the contents of the envelope. Davis stated that the unidentified woman said that the envelope contained “legal papers” for Dr. Brawner.

¶ 14. Weathers’ affidavit stated that she delivered a copy of a complaint and summons for Dr. Brawner to Tupelo Eye Clinic. Weathers stated that she spoke with a female behind the desk and told her that she had “legal papers to serve Dr. Brawn-er with” and that the female behind the desk told Weathers “to give them to her.” Weathers states that the woman never indicated that she was not the proper person to receive the legal papers.

¶ 15. Neither woman was questioned during the hearing. No effort was made to identify the patterns and practices of this office. No effort was made to clarify whether Dr. Brawner’s receptionist fully understood what was taking place, or the nature of the act. The evidence before this Court is insufficient to make a determination that Davis was a de facto agent for Dr. Brawner. In the absence of sufficient factual information, this Court, like the circuit court, must hold that Davis was not the agent of Dr. Brawner. This opinion is not intended to suggest that there can never be such a finding of agency, but merely that the facts before this Court do not justify such a finding.

II.

Whether fraudulent misrepresentation committed by a party’s employee as a receptionist, in the ordinary course and scope of her employment, represents good cause for serving process within 120 days, especially when the party showed due diligence by immediately reserving the papers when he had notice that service of process was contested

¶ 16. Having found in issue I, that Cooley failed to present sufficient evidence to support the contention that the receptionist was Dr. Brawner’s agent, we hold this issue to be moot.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

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


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Willie Daron TRIPLETT, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-01203-COA.
    Court of Appeals of Mississippi.
    May 25, 2004.
    Rehearing Denied Aug. 31, 2004.

      Edmund J. Phillips, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   IRVING, J.,

for the Court.

¶ 1. Willie Daron Triplett was convicted of business burglary by a jury of the Circuit Court of Neshoba County and sentenced, as a habitual offender, to seven years in the custody of the Mississippi Department of Corrections. Feeling aggrieved by this decision, Triplett files this appeal and brings forth the following issue: whether the circuit court erred in allowing the prosecution to introduce evidence of his prior convictions for the purpose of impeaching him on cross-examination.

¶ 2. Ascertaining no reversible error, we affirm.

FACTS

¶ 3. In the early morning hours of January 9, 2001, a motion sensor alarm sounded at Vowell’s Marketplace, a grocery store in Philadelphia, Mississippi. An assistant manager arrived at the store where police officers were waiting. Upon entering the store, the manager and police discovered that cigarettes were scattered about the store and that one of the back doors had been propped up with a pallet. This door was let back down and locked. Upon finding no explanation for why the alarm sounded, the manager and police left the store.

¶ 4. Soon thereafter, the alarm went off a second time. The police arrived at the store and surveyed the outside of the premises; however, they found nothing.

¶ 5. The alarm went off a third time. The police came back to the premises and again called the manager to meet them at the store. During their investigation of the premises, police found that the lock of a second back door was broken from the inside and that several sacks of groceries had been stacked by that door. More officers were summoned to do a thorough search of the premises. During this search of the store, Willie Triplett was found inside and apprehended.

¶ 6. Triplett was charged with business burglary and after a two-day trial, was found guilty as charged.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 7. Triplett argues that the circuit court erred in allowing the prosecution to introduce evidence of his prior convictions to impeach him on cross-examination. The State counters that the circuit court appropriately applied Rule 609 of the Mississippi Rules of Evidence to resolve the issue and correctly found that the probative value of the evidence outweighed any prejudicial effect. Moreover, the State argues that the evidence of Triplett’s guilt was overwhelming.

¶ 8. To resolve this issue, we look to Rule 609 of the Mississippi Rules of Evidence which states:

(a) General Rule. For the purpose of attacking the credibility of a witness,
(1) evidence that (A) a nonparty witness has been convicted of a crime shall be admitted subject to Rule - 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and (B) a party has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the party; and
(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of punishment.

M.R.E. 609(a).

¶ 9. While conceding that Rule 609(a) is applicable, Triplett argues that a witness’s prior convictions are probative, and thus admissible, only when those crimes relate to that witness’s credibility. He further asserts that the crime of burglary has no probative value on the issue of truthfulness, and therefore, those convictions involving the crime of burglary should not be admissible under Rule 609 to impeach him. He then cites McInnis v. State, 527 So.2d 84 (Miss.1988); Saucier v. State, 562 So.2d 1238 (Miss.1990); and Tillman v. State, 606 So.2d 1103 (Miss.1992) as support for his position.

¶ 10. We find no merit in Triplett’s arguments. We first note that Mclnnis, Saucier, and Tillman were all overruled by White v. State, 785 So.2d 1059 (Miss.2001) to the extent that the cases only allowed prior convictions relating to dishonesty or a false statement to be used for impeachment purposes. Id. at 1061. Secondly, according to White, “[ujnder M.R.E. 609(a)(1), the crime which is the basis for impeachment does not have to involve dishonesty or a false statement.” Id. Therefore, a crime which does not involve propensity of truthfulness may be admissible under 609(a)(1) so long as it meets the requirements which are set forth in that rule.

¶ 11. The next question becomes whether the convictions of Triplett were properly admitted under Rule 609(a)(1)(B). The plain language of Rule 609(a)(1)(B) requires that before admitting evidence of a party’s conviction of a crime, the trial judge must determine “that the probative value of admitting this evidence outweighs its prejudicial effect.” Peterson v. State, 518 So.2d 632, 636 (Miss.1987).

¶ 12. In Peterson, our supreme court held that a trial judge must make an on-the-record finding that the probative value of admitting a prior conviction outweighs its prejudicial effect before admitting a non-609(a)(2) prior conviction for impeachment purposes under Rule 609(a)(1). Id. An on-the-record finding that the probative value outweighs the prejudicial effect is not merely an idle gesture. Id. The purpose of this on-the-record balancing requirement is so that on appeal “[an appellate court] can more easily ascertain whether or not the trial judge has abused his discretion in granting or denying admissibility of prior convictions for impeachment purposes.” Jones v. State, 702 So.2d 419, 421 (¶ 14) (Miss.1997) (citing McGee v. State, 569 So.2d 1191, 1195 (Miss.1990)).

¶ 13. The following five factors should be used by the trial judge to determine whether the probative effect of admitting the evidence outweighs the prejudicial effect of its admission:

(1) The impeachment value of the prior crime.
(2) The point in time of the conviction and the witness’ subsequent history.
(3) The similarity between the past crime and the charged crime.
(4) The importance of the defendant’s testimony.
(5) The centrality of the credibility issue.

Peterson v. State, 518 So.2d at 636.

¶ 14. In the case sub judice, the prosecution offered to introduce into evidence four prior felony convictions of Triplett— three for burglary and one for receiving stolen property—in its effort to impeach him on cross-examination. After hearing Triplett’s objections, the trial judge commenced its consideration of the Peterson factors and made the following findings:

Okay. All right. The Court is cognizant, of course, of Rule 609. And the Court has attempted now to invoke the Peterson factors. And I have heard the District Attorney’s analogy on that. And I will go over them again as you have argued them as far as the impeachment value. Certainly, there is involved the intent. It appears to reflect a pattern of a lifestyle, which goes back to 1994 and coming to the present. House burglary, house burglary, receiving stolen property, and then now, of course, the crime here, which is business burglary. That is a definite pattern. Point in time, of course, we are governed by the ten year time period.1994 is getting near there, but it is not there. So, the Court looks at that and considers it, but not being decisive. The similarity-—I am overlapping as far as my comment on that, because I made a comment on that as far as issue number one. The house burglaries, those two, and then this being a commercial burglary. Certainly, there is the similarity. Maybe a business building versus a residence. Both cases the person—the defendant would—would be going into a place where the business occupants would not be there or the resident owners would not be there. Number four, I agree with the State that the importance of the defendant’s testimony, the centrality of it, that mitigates in favor of the defendant, because apparently he is the whole show. And that is just the way it is. Of course, the Court has the right to allow, even though discovery did not disclose other witnesses, the Court allow possibly other testimony [sic]. And then the centrality of the credibility this as far as the Court’s analogy on that, the testimony of the defendant is just the opposite of that of Officer Sistrunk [sic]. The defendant at the time was certainly not under the influence of crack cocaine. It was 24 hours later. And his statement bears out as far as what Officer Sistrunk has said. So I think the centrality aspect mitigates in favor of admission. So, as I look at all the factors together, I think— I so find that the probative value is greater than the prejudicial effect. So, I allow the State to impeach the defendant as far as his credibility on the prior convictions. Anything further?

¶ 15. While we acknowledge that the circuit judge engaged in the proper procedure of admitting the convictions, we do not agree with some of his findings concerning the Peterson factors and ultimately his decision to admit the three prior convictions of burglary and one prior conviction of receipt of stolen property. Unlike the circuit judge, we see little, if any, impeachment value in Triplett’s prior burglary convictions and his receiving stolen property conviction. Our supreme court has stated that burglary is not necessarily a crime affecting veracity. Townsend v. State, 605 So.2d 767, 769 (Miss.1992). Moreover, the receiving-stolen-property conviction occurred in 1994 and Triplett’s trial occurred in 2002. Rule 609(b) prohibits admission of evidence of a conviction if more than ten years have elapsed since the date of the conviction. While the receiving-stolen-property conviction was not ten years old, it was close. While evidence of this conviction is not prohibited from being admitted because of the time period, we see little probative value in the admission of an offense this old. Secondly, we find that Triplett’s prior crimes of burglary and receiving stolen property are so similar to the crime for which Triplett was being tried, business burglary, that the prejudicial effect of admitting the convictions is very high. In such a situation, the jury is very likely to infer present guilt from past convictions for a similar offense. Peterson, 518 So.2d at 637. Therefore, we find that the circuit court erred in admitting these prior convictions for impeachment purposes.

¶ 16. Although we find that the circuit judge erred in admitting Triplett’s past convictions for impeachment purposes, we hold that such error was harmless, as the weight of the evidence against Triplett, excluding his prior convictions, was substantial and proved beyond a reasonable doubt that Triplett committed the crime of business burglary.

¶ 17. Officers John Lilly and Fredesz Moore testified that they investigated disturbances at Vowell’s Marketplace between the late hours of January 8, 2001, and the early morning hours of January 9, 2001. Both officers affirmed that Triplett was arrested after being found inside of the store. Moreover, Chief Investigator Richard Sistrunk testified that Triplett gave a confession on the day after his arrest after being read his Miranda rights. Triplett’s confession stated the following:

Statement by Willie Triplett, 1-10-2001. Night before last around 11:00 p.m. I was around the trail smoking crack. I got to thinking about the County Market to be a good place to get money. I didn’t think they had an alarm. I went to the back of the store. I had a pole and used it to pry open the back door. I got a pallet and put under the door and put a couple of one by fours to put on the pallet. I went into the store and went straight to the safe. When I couldn’t get in the safe, I grabbed all the Newport cigarettes. I got ready to go out and seen lights shining under the door. I then went and hid. I seen the police in the store. They left. I came back out trying to figure out how to get out. I grabbed a case of beer and started drinking. I found some pliers in the meat department and took a screw out of the door. I went back to the window and seen the police and went to hide again. The police then came in about an hour later and that’s when I was caught.

¶ 18. We therefore affirm Triplett’s conviction and sentence.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF NESHOBA COUNTY OF CONVICTION OF BUSINESS BURGLARY AND SENTENCE OF SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NESHOBA COUNTY.

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


author: KING, C.J.,

text:
    Cedric T. CALHOUN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01679-COA.
    Court of Appeals of Mississippi.
    July 27, 2004.

      Sharon D. Henderson, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, C.J., BRIDGES, P.J., and CHANDLER, J.
   KING, C.J.,

for the Court.

¶ 1. Cedric Calhoun was convicted in the Circuit Court of Madison County of armed robbery. Aggrieved by his conviction and sentence, Calhoun appeals and states the following issues, which we quote verbatim:

I. Whether the indictment is sufficient to inform the defendant of the charges he must meet thus requiring granting of a directed verdict.
II. Whether the sentence of forty years constituted cruel and unusual punishment.

¶ 2. Finding no error, we affirm the conviction of armed robbery.

STATEMENT OF FACTS

¶ 3. On October 29, 2001, Cedric Calhoun and two companions were riding around in search of a Halloween party at the Van Mark Apartment complex in Ridgeland. The three men were in Calhoun’s vehicle, but he was not driving. Calhoun admitted there was a gun in the car, but claimed that it was not his, and that he put it in his pocket to ensure that his companions would not see it. At some point, Calhoun and one of the passengers in the vehicle got out of the car in search of a party.

¶ 4. Calhoun testified that about 10 p.m., he and his companion saw Sean Marie Parkman as she checked her mail at the mail kiosk and decided to scare her. Calhoun testified that he and his companion were both wearing Halloween masks, and when they jumped out of the bushes to scare Parkman the gun he was carrying fell out of his front pocket. Calhoun testified that the woman was obviously frightened, but he told her that they were not trying to take anything from her, and directed that she get into her car. Calhoun claims that Parkman did not comply, and he and his companion walked off behind the mailboxes.

¶ 5. Parkman testified that, on the night in question, she went to take her trash out, and then stopped to check her mail at the front of the apartment complex. She testified that she parked her car at the curb, left it running, about ten feet from the mailboxes, and jumped out to get her mail. Parkman testified that she heard something in the bushes, and as she walked away from the mailboxes, two men jumped out from behind them, and one of them pointed a gun directly at her head, and said, “[G]ive me your f- money b_” Parkman testified that both men were wearing masks, held her arms, and demanded her purse. Parkman told the men that she did not bring anything with her, and they demanded that she return to her apartment and retrieve her purse. Parkman testified that one of the men got in her car and began rummaging through it. Parkman testified that she began to argue with the men, and the perpetrator with the gun pointed it at her and accused her of lying. Parkman testified that the men finally gave up, made her turn around, and they ran off. Parkman notified the Ridgeland Police of the incident, and the three men were apprehended in the Van Mark Apartment complex and were identified by Parkman.

¶ 6. On August 27, 2002, a jury found Calhoun guilty of armed robbery, and he was sentenced to forty years in the custody of the Mississippi Department of Corrections, with ten years suspended, and five years of supervised probation.

ISSUES AND ANALYSIS

Whether the indictment is sufficient to inform the defendant of the charges he must meet thus requiring granting of a directed verdict.

¶ 7. Calhoun contends the trial court erred in denying his motion for a directed verdict because the indictment was insufficient to support a conviction for armed robbery. Calhoun asserts that the indictment was insufficient because it did not delineate the elements of armed robbery, or attempted armed robbery. Specifically, Calhoun argues that the indictment makes no mention of the intent required for the offense, as it fails to mention that robbery is a specific intent crime. Calhoun also asserts that the indictment was for attempted armed robbery, not armed robbery, and that the jury instructions were otherwise improper.

¶ 8. Once the jury has returned a guilty verdict this Court is not at liberty to direct that the defendant be found not guilty unless viewed in the light most favorable to the verdict no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was guilty. Conners v. State, 822 So.2d 290, 293(¶ 6) (Miss.Ct.App.2001) This Court must consider as true all evidence consistent with the defendant’s guilt and the State must be given the benefit of all favorable inferences. McClain v. State, 625 So.2d 774, 778 (Miss.1993) (citations omitted). When considering the denial of a motion for a directed verdict, the evidence is viewed in the light most favorable to the State, and all evidence supporting a guilty verdict is accepted as true, and the prosecution must be given the benefit of all favorable inferences that can be reasonably drawn from the evidence. Nelson v. State, 839 So.2d 584, 586(¶ 3) (Miss.Ct.App.2003).

¶ 9. The indictment under which Calhoun was charged reads as follows:

Cedric T. Calhoun late of the county aforesaid, on or about the 29th day of October, 1999, in the county aforesaid and within the jurisdiction of this court, did willfully, unlawfully and feloniously, attempt to take from the presence of Sean Marie Parkman, money, the personal property of Sean Marie Parkman, against her will by putting the said Sean Marie Parkman in fear of immediate injury to her person by the exhibition of a deadly weapon, a gun, in violation of Miss.Code Ann. § 97-3-79 (1972, as amended), and against the peace and dignity of the State of Mississippi.

¶ 10. Calhoun contends that the indictment is defective because it does not address the element of specific intent. While agreeing with Calhoun’s contention that robbery is a specific intent crime, we find that use of the word “feloniously” contained in the indictment under which Calhoun was charged was sufficient to allege the necessary element of intent. Thomas v. State, 278 So.2d 469, 471 (Miss.1973). “It is well-established in the aw that a charge of felonious taking carries with it an implied assertion of the requisite intent to permanently deprive the rightful owner of the taken property.” Johnson v. State, 744 So.2d 833, 837 (¶ 13) (Miss.Ct.App.1999) (internal citations omitted). Moreover, the indictment under which Calhoun was charged tracked the language of Mississippi Code Annotated Section 97-3-79 (Rev.2000). As a general rule, where an indictment tracks the language of a criminal statute it is sufficient to inform the accused of the charge against him. Stevens v. State, 808 So.2d 908 (¶ 31) (Miss.2002). Therefore, we find no merit to Calhoun’s contention that he was not appraised of the elements of the charge against him.

¶ 11. Calhoun also asserts that his motion for directed verdict should have been granted because he was convicted of armed robbery, but the indictment charged him with the lesser crime of attempted armed robbery. The language of the indictment states that Calhoun “attempted to take the property of Sean Marie Parkman.” The indictment leaves out the language, contained in Mississippi Code Annotated Section 97-3-79, “take or” which appears before the phrase “attempt to take.” Calhoun asserts that by leaving out the words “take or” that the State indicted him for attempted armed robbery, and not armed robbery.

¶ 12. Mississippi Code Annotated Section 97-3-79 punishes attempted armed robbery the same as armed robbery. See Miss.Code Ann. § 97-3-79. The language in the indictment tracks the statute, in that the crime of armed robbery is complete at the attempt. It is irrelevant that the indictment only stated that Calhoun “attempted to take” because according to the statute, a person can be convicted of armed robbery while attempting to complete the act. The language in the indictment is consistent with this notion that the act is complete upon the attempt.

¶ 13. Giving the State the benefit of all favorable inferences, and considering the evidence in the light most favorable to the verdict, we find that reasonable hypothetical jurors could have found Calhoun guilty of armed robbery because under the law the act is complete with the attempt. Accordingly, we find no merit in this issue.

II.

Whether the sentence of forty years constituted cruel and unusual punishment.

¶ 14. The record reflects that Calhoun failed to object to his sentence either at the time the sentence was imposed, or in a post-trial motion, and such a failure acts as a procedural bar to this Court’s ability to review the issue. Ivory v. State, 840 So.2d 755, 758-59 (¶ 9) (Miss.Ct.App.2003). However, procedural bar notwithstanding, we will address the merits of this issue for the purposes of judicial economy. Calhoun asserts that his sentence of forty years for a gainfully employed, first time offender with no aggravating factors, or egregious actors involved in the crime, constituted cruel and inhuman treatment under the Eighth Amendment.

¶ 15. Calhoun was sentenced pursuant to Mississippi Code Annotated Section 97-3-79 under which the trial judge had the authority to impose any sentence but life imprisonment. We find that Calhoun’s sentence of forty years did not constitute cruel and inhuman treatment, and was within the purview of the trial judge to impose, since he had adjudged Calhoun’s remaining life expectancy to be forty-two years. “[I]t is well settled that the imposition of a sentence is within the discretion of the trial court and this Court will not review the sentence, if it is within the limits prescribed by statute.” Ivory, 840 So.2d at 759 (¶ 10). We find that the trial judge did not abuse his discretion, and accordingly, there is no merit to this issue.

¶ 16. Having found no merit in Calhoun’s assignments of error, we affirm the decision of the trial court.

¶ 17. THE JUDGMENT OP THE CIRCUIT COURT OF MADISON COUNTY OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF FORTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH TEN YEARS SUSPENDED AND FIVE YEARS’ PROBATION IS HEREBY AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

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

      . Miss.Code Ann. § 97-3-79: Robbery; use of a deadly weapon. Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.


author: MYERS, J.,

text:
    James Earl McCOY, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-00404-COA.
    Court of Appeals of Mississippi.
    Aug. 24, 2004.
    Gary Goodwin, Columbus, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
   MYERS, J.,

for the Court.

¶ 1. James Earl McCoy was found guilty of armed robbery in the Circuit Court of Lowndes County, Mississippi. McCoy was sentenced to serve a term of thirty-five years in the custody of the Mississippi Department of Corrections. McCoy’s motion for JNOV or, in the alternative, a new trial was denied by the circuit court. McCoy appeals to this Court and raises the following issue: was the jury verdict against the overwhelming weight of the evidence?

STATEMENT OF FACTS

¶ 2. On December 29, 1999, at approximately 11:26 p.m., three men entered the Jr. Food Mart in Columbus, Mississippi. Brandi Dennison was working the 11 p.m. to 7 a.m. shift as cashier. Dennison was alone in the store and talking to her husband on a cordless phone when the men approached her at the check-out counter and demanded money. Dennison testified that one man held a gun to her head while another man went to the store’s unlocked safe to get the money. A third man stood at the end of the counter pointing a gun at her. The man at the safe took a Trust-mark bank bag which contained $173. The man holding the gun to Dennison’s head threw her on the floor and the three men left the store in what Dennison described as a dark-colored older model Oldsmobile or Chevrolet Caprice. Dennison stated that the robbery lasted less than five minutes.

¶ 3. After crawling into the store’s office and watching the men leave on the security cameras, Dennison dialed 911 and police responded within five minutes. Upon the police arriving at the Jr. Food Mart, Den-nison gave a description of the men and the getaway car. The police showed Den-nison a photo album hoping that she could identify the men. Dennison did not make a positive identification at that time. Shortly thereafter, deputy sheriffs pulled behind a dark blue vehicle at an Exxon station in Columbus. Three men exited the car and went inside the Exxon store to purchase cigars. When the deputies approached the car, a man was sitting on the back seat. Deputy Eddie Coleman saw a silver colored gun on the front seat. The man in the back seat had a black semiautomatic handgun hidden behind him.

¶ 4. The four men were apprehended and handcuffed at the Exxon station. Dennison was taken to the Exxon by police and immediately identified McCoy as the man who held the gun to her head during the robbery. Dennison also identified one of the men, Anthony Durrah, as the man who got the money out of the safe. Denni-son was unsure about the third man standing by the counter, John Bonner.

¶ 5. McCoy was indicted on February 9, 2000, for armed robbery in violation of Mississippi Code Annotated Section 97-3-79 (Rev.2000). McCoy’s trial occurred on December 3, 2001. On the day of his trial, McCoy appeared with counsel ready for trial. After the jury voir dire, the jury was selected and impaneled. McCoy failed to appear in court after a noon recess when opening statements were scheduled to begin. Upon motion by the State, a bench warrant was issued for McCoy’s immediate arrest. The trial proceeded in McCoy’s absence and the jury found McCoy guilty of armed robbery. McCoy’s sentencing was postponed until his whereabouts were determined and he was in custody of the MDOC. McCoy was sentenced to serve thirty-five years in the custody of the MDOC. McCoy filed a post-trial motion for JNOV or, in the alternative, a new trial which was denied by the circuit court. It is from this denial that McCoy now appeals to this Court.

LEGAL ANALYSIS

I. WAS THE JURY VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 6. McCoy argues that the jury verdict was against the overwhelming weight of the evidence. He contends that the State failed to prove beyond a reasonable doubt an element of his crime, identity, because Brandi Dennison did not personally identify him in court as one of the men who participated in the armed robbery. McCoy did not return to his trial after the jury was selected. He argues that because he was not present during the trial and Dennison was not asked to identify him in court, his conviction and sentence cannot stand. The State argues that based on the evidence the jury heard, specifically the testimony of Dennison and Sergeant Larry Swearingen, there was sufficient evidence to support the verdict.

¶ 7. The standard of review for determining whether a jury verdict is against the overwhelming weight of the evidence is well settled. The appellate court must accept as true all 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. Swann v. State, 806 So.2d 1111, 1117 (¶ 25) (Miss.2002). On review, the State is given “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Griffin v. State, 607 So.2d 1197, 1201 (Miss.1992). The appellate court should not reverse a guilty verdict unless failure to do so would sanction an unconscionable injustice. Hilliard v. State, 749 So.2d 1015, 1016-17 (¶ 10) (Miss.1999). “This Court does not have the task of reweighing the facts in each case to, in effect, go behind the jury to detect whether the testimony and evidence they chose to believe was or was not the most credible.” Langston v. State, 791 So.2d 273, 280 (¶ 14) (Miss.Ct.App.2001).

¶ 8. A review of the record indicates that Dennison testified that on December 29, 1999, shortly after her 11 p.m. shift began, three men entered the Jr. Food Mart and demanded money. According to Dennison, one man stayed at the end of the check-out counter, one man went to the store’s safe which was unlocked per company policy to get the money and the other man grabbed her arm and held a gun to her head. Dennison stated that the light in the store was very bright. Dennison described the men as being black males. All three men were carrying guns. The man holding the gun to her head was carrying a silver medium-sized automatic handgun, which Dennison described as not being a revolver. Dennison described that man as a black male, approximately six feet tall, medium frame, wearing dark blue baggy pants and a jacket. The man was wearing pantyhose over his face, but Dennison testified that she could see right through to the man’s face.

¶ 9. Dennison described the man at the safe as having a darker complexion, heavy set, shorter than the other two men and having thick hair. That man was carrying a black automatic handgun somewhat larger than the silver gun. Dennison described the man at the end of the counter as having a lighter complexion, 5'6' to 5'7' tall and skinny. She stated that he looked very young and nervous and she did not recall what he was wearing. Dennison remembered that this man also had a gun which he was pointing at her but she could not give a description of the gun.

¶ 10. Dennison testified that the man at the safe took a Trustmark bank bag which contained $173. The man holding a gun to Dennison’s head threw her on the floor and the men left in a dark-colored older model Oldsmobile or Chevrolet Caprice. After the men left, Dennison called 911 and the police arrived at the store about five minutes later. Dennison gave descriptions of the three men and the car to police. The police showed Dennison a photo album but she did not make any positive identifications at that time. Den-nison was taken by police to an Exxon station where four men were apprehended. As Dennison and police approached the Exxon, Dennison saw McCoy standing outside the store and immediately identified him as the man who held the gun to her head. Dennison testified that she had no doubt McCoy robbed her. At the Exxon, Dennison also identified Anthony Durrah as the man who went to the safe and took the bank bag. Dennison was not sure about the third man at the end of the counter, John Bonner. At McCoy’s trial, Dennison identified five photos of a blue vehicle which she stated looked like the getaway car.

¶ 11. Deputy Larry Swearingen testified for the State that on the night of the robbery he was working as a road deputy for Lowndes County, and his job was to answer 911 calls. At approximately 11:26 p.m., he received a call that the Jr. Food Mart had been robbed. He arrived on the scene at 11:30 p.m. and obtained descriptions of the three men and the vehicle from Dennison. Swearingen immediately relayed information to 911 that Dennison had been robbed by three black males traveling in a dark-colored older model Chevrolet or Oldsmobile. Swearingen testified that he showed a photo album to Dennison hoping that she could identify the men. Dennison did not make an identification at that time. Swearingen took Dennison to the Exxon station where she identified McCoy and Durrah.

¶ 12. Deputy Richard Speed testified that after he received a 911 call that the Jr. Food Mart had been robbed by three black males driving an older model car, he saw four black males inside a large dark blue vehicle traveling north on Highway 45. Speed turned off his blue lights and followed the car to the Exxon station. Speed stated that three black males, McCoy, Durrah and Rico Bailey, got out of the car and went inside the Exxon. Deputy Speed pulled behind the car so the men could not leave. Upon approaching the car, Speed was informed that another man was sitting on the back seat. Speed asked McCoy, Bailey and Durrah to step outside where they, along with the fourth man were handcuffed. Speed identified five pictures of a blue vehicle in court which was the vehicle the men were driving when they arrived at the Exxon.

¶ 13. Deputy Eddie Coleman testified that upon arriving at the Exxon station, he pulled in front of the vehicle so the men could not leave. He noticed a silver gun on the front seat and a man, later determined to be John Bonner, sitting in the back seat. Bonner was concealing a .380 semiautomatic black handgun. During a search of the car, Coleman found two revolvers under the driver’s seat. The silver gun and the black gun were loaded. Coleman identified the silver gun in court.

¶ 14. Deputy Kenneth Johnson conducted a search of Bonner and he found bullets in a plastic bag and over $100 in Bonner’s front pants pocket. Johnson did not count the money at that time but a stipulation was made that $170 was removed from Bonner’s pocket.

¶ 15. Charles Wilson, a part-time cashier at Exxon, testified that three men entered his store on the night of December 29, 1999, and bought cigars. The men were apprehended by police after spending less than $5 in the Exxon.

¶ 16. McCoy’s argument on appeal is that there was no personal in-court identification of him as one of the men who participated in the robbery of the Jr. Food Mart. McCoy appeared in court with his attorney ready for trial and was present during the jury voir dire and when the jury was impaneled. The judge recessed court for lunch and McCoy failed to return to court on his bond. Upon a motion by the State, McCoy’s trial proceeded in his absence. The trial judge acted in accordance with the law by granting the State’s motion. See Miss.Code Ann. § 99-17-9 (Rev.2000); Griffin v. State, 811 So.2d 291, 293-94(¶ 8) (Miss.Ct.App.2001) (citing McMillian v. State, 361 So.2d 495, 496-97 (Miss.1978) in which the supreme court held that a defendant who was present during jury voir dire and who failed to return for his trial voluntarily waived his right to be present at trial). McCoy chose not to return for his trial and now complains that he was not personally identified in court. McCoy alone is responsible and cannot now complain about the consequences of his own voluntary act.

¶ 17. While the identity of the accused is always an element of the crime charged, we find that reviewing the facts in a light most favorable to the State, a reasonable juror could infer that McCoy was guilty of armed robbery beyond a reasonable doubt. Dennison testified in court that she was certain McCoy robbed her. If McCoy had been present at his own trial, Dennison could have made an in-court identification. The weight of the evidence against McCoy demonstrates that sufficient proof was offered by the State for the jury to find McCoy guilty of armed robbery in violation of Mississippi Code Annotated Section 97-3-79 (Rev.2000).

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF THIRTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

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


text:
    John L. WARD, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-00286-COA.
    Court of Appeals of Mississippi.
    Aug. 24, 2004.

      Gary Goodwin, Columbus, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
   MYERS, J.,

for the Court.

¶ 1. This case comes from the Circuit Court of Oktibbeha County, Mississippi, Honorable Lee J. Howard presiding. John L. Ward was tried and convicted of felony driving under the influence and was sentenced to five years in the custody of the Mississippi Department of Corrections as a habitual offender. After denial of his post-trial motions, Ward appeals raising the following issues:

I. WHETHER THE TRIAL JUDGE COMMITTED PLAIN ERROR BY INFORMING THE JURY DURING VOIR DIRE OF WARD’S PRIOR DUI OFFENSES, BY ALLOWING THE PRIOR OFFENSES TO BE A PART OF THE CASE-IN-CHIEF, AND BY FINDING THAT THEY CONSTITUTED MATERIAL ELEMENTS OF THE INDICTMENT, NOTWITHSTANDING RIGBY V. STATE
II. WHETHER THE TRIAL JUDGE COMMITTED ERROR BY OVERRULING WARD’S MOTION IN LI-MINE
III. WHETHER THE TRIAL JUDGE COMMITTED PLAIN ERROR BY ALLOWING THE ARRESTING OFFICER TO TESTIFY AS TO THE RESULTS OF THE HORIZONTAL GAZE-NYSTAGMUS FIELD SOBRIETY TEST AND THE RESULTS OF THE PORTABLE INTOXILIZER BREATH TEST AS EVIDENCE OF WARD’S INTOXICATION
IV. WHETHER THE JURY VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE OR WHETHER THE CUMULATIVE ERRORS SHOULD HAVE RESULTED IN A NEW TRIAL

STATEMENT OF FACTS

¶ 2. Late at night on November 5, 2001, the Starkville Police Department and the Oktibbeha County Sheriffs Department joined forces to conduct a roadblock at the intersection of Highway 82 and Highway 12 in Starkville, Mississippi. Officer Shawn Word and Deputy Archer Sallis stood behind the vehicles as they went through the checkpoint in order to check tags.

¶ 3. Officer Word noticed that a vehicle stopped abruptly in the middle of the highway about twenty-five yards before the roadblock. The vehicle was a dark-colored Jeep Cherokee Laredo. Once the Jeep stopped, Officer Word saw the driver’s door open and a man with a pressed shirt and khakis run towards the back of the vehicle. Officer Word then saw the right rear passenger door open and a man with a purple hat run towards the front of the Jeep, enter the driver’s seat, and shut the door. Officer Word was using his flashlight and testified that the area was fairly well lit.

¶ 4. Officer Word ordered the Jeep to pull over onto the shoulder of the road. As he did, a man driving a truck told Officer Word that he witnessed two males in the Jeep switch drivers. Apparently, the driver of the truck was traveling in the same direction as Ward and had to stop his vehicle since the Jeep was sitting in the middle of the highway.

¶ 5. By that time, Deputy Sallis had arrived and approached the driver’s side of the Jeep. Officer Word approached the right rear passenger door where he asked John Ward to step out of the vehicle. Officer Word asked Ward why they had switched drivers. Ward stated that he did not need to get a ticket for driving with a suspended license.

¶ 6. Officer Word testified that Ward’s eyes were bloodshot and that he could smell alcohol on Ward’s breath. Officer Word administered a horizontal gaze-nys-tagmus test and testified that Ward showed signs of intoxication. Officer Word also gave Ward a portable breath intoxilizer test and Ward registered above the legal limit.

¶ 7. Deputy Sallis administered a portable breath intoxilizer test on Ward’s brother, James, because he was in the driver’s seat and had pulled the Jeep onto the shoulder of the highway. The test revealed that James had also been drinking but he was under the legal limit.

¶ 8. Officer Word handcuffed Ward and placed him in the rear seat of the police car. Ward was then taken to the Oktib-beha County Sheriffs Department for an Intoxilizer test.

¶ 9. After arriving at the Sheriffs Department, Officer Word administered the “one leg stand” test and the “walk and turn” test and testified that Ward failed them both. Officer Word then administered the Intoxilizer test and Ward registered .12, which is over the legal limit.

¶ 10. Since this was Ward’s third DUI offense within five years, he was indicted pursuant to Mississippi Code Annotated Section 63 — 11—30(2)(c) (Rev.1996). A trial was held in the Circuit Court of Oktibbeha County and the State offered Officer Word and Deputy Sallis as witnesses. After the State rested, Ward moved for a directed verdict but the trial judge denied this motion.

¶ 11. Ward then offered Mary Cook as his first witness. Cook testified that the Jeep in question belonged to her. Cook testified that Ward called her on the day in question and asked if he could borrow the Jeep. Ward indicated that his brother would be driving so she agreed. Later that evening, Ward and his brother came by and picked up the Jeep, and Cook testified that she saw Ward’s brother drive it away. Cook testified that she did not know what happened after that.

¶ 12. The next witness called by the defense was Lewis Taylor. Taylor testified that he was sitting in the front passenger seat of the Jeep when Ward was arrested.

¶ 13. Ward then took the stand on his own behalf. Ward testified that his brother James was driving the Jeep on the night in question. Ward testified that he and his brother picked up the Jeep from Cook and drove to a bar. Ward testified that they stayed at the bar for about four hours where he consumed liquor and beer. Ward denied driving the vehicle. Ward stated that he was in the back seat, his brother was driving, and Taylor was sitting in the front passenger seat as they left the bar. Ward denied having any drinking problem. He stated that his two prior convictions were close together in time.

¶ 14. Finally, Ward’s brother, James, was called to testify. He testified that he was driving the Jeep on the night in question. He testified that he had two beers that night at the bar. James stated that when they left the bar Taylor was in the front passenger seat and his brother was in the back seat. On cross-examination, James was asked about switching drivers and stated that he tried to drive home but his brother would not let him. On redirect, however, James restated that he was driving when they left the bar and that the vehicle never stopped so that the drivers could be changed. When asked for a reason why he stopped in the middle of the highway, James stated that he was trying to avoid a DUI so he was looking for gum or candy to put in his mouth. James also stated that he was trying to light a cigarette, but it fell between his legs and he was trying to look for it.

¶ 15. After being instructed, the jury deliberated and ultimately returned a verdict of guilty. The State then moved to amend the indictment to show habitual offender status. The trial court granted the State’s motion and two prior felony convictions were offered into evidence.

¶ 16. The trial court sentenced Ward to a term of five years in the custody of the Mississippi Department of Corrections as a habitual offender pursuant to Mississippi Code Annotated Section 99-19-81 (Rev. 2000), without any possibility of an early release. Ward also received a fíne of $5,000. After denial of his post-trial motion, Ward perfected this appeal.

LEGAL ANALYSIS

I. WHETHER THE TRIAL JUDGE COMMITTED PLAIN ERROR BY INFORMING THE JURY DURING VOIR DIRE OF WARD’S PRIOR DUI OFFENSES, BY ALLOWING THE PRIOR OFFENSES TO BE A PART OF THE CASE-IN-CHIEF, AND BY FINDING THAT THEY CONSTITUTED MATERIAL ELEMENTS OF THE INDICTMENT, NOTWITHSTANDING RIGBY V. STATE

¶ 17. Ward argues that evidence of his prior DUI convictions should have been precluded at his trial for felony DUI. In support of this argument, Ward relies on Strickland v. State, 784 So.2d 957, 961 (¶ 17) (Miss.2001), where the supreme court stated,

We note that there is no need for the State to introduce evidence of prior DUI convictions during the guilt phase of a trial. A better approach would be to introduce the prior convictions at the sentencing phase of the trial in order to prevent unfair prejudice to the defendant.

¶ 18. However, in Rigby v. State, 826 So.2d 694, 700 (¶ 10) (Miss.2002), the supreme court held that a defendant is not entitled to bifurcate the guilt phase of his trial in order to prevent the jury from learning of his prior DUI convictions until after they had deliberated on the most recent DUI charge. The court held that since prior DUI convictions are necessary elements of felony DUI, any other holding would preclude the State from proving an essential element of the crime and the circuit court would breach its duty to instruct the jury on all the essential elements of the crime charged. Rigby, 826 So.2d at 701 (¶ 13). In addition, the court held that bifurcation of the guilt phase of a felony DUI charge would be a direct violation of Rule 3.10 of the Uniform Rules of Circuit and County Court Practice which states that “[ajfter the jurors have retired to consider their verdict the court shall not recall the jurors to hear additional evidence.” Rigby, 826 So.2d. at 700 (¶ 10).

¶ 19. Ward argues that Rigby never mentions Strickland, much less overrules it. As true as that may be, this Court has held that “[bjecause the Strickland decision is a plurality decision on the point of whether a bifurcated trial is required, it has no precedential value.” Watson v. State, 835 So.2d 112, 117 (¶ 14) (Miss.Ct.App.2003) (citing Moore v. State, 806 So.2d 308, 311(¶ 5) (Miss.Ct.App.2001)). Therefore, we find no plain error.

¶20. Moreover, like Watson and Moore, Ward has waived his right to raise this issue on appeal. In the instant case, the trial judge informed the jurors of the felony indictment against Ward and noted that he had two prior DUI convictions within the last five years. The judge also told the jury the date and place of the two prior convictions. The trial transcript reveals that Ward made no objection to the introduction of this evidence. “Consequently, in addition to lacking merit, this issue is also procedurally barred from review by this Court.” Watson, 885 So.2d at 117 (¶ 14) (citing Harris v. Lewis, 755 So.2d 1199, 1204 (¶ 15) (Miss.Ct.App.1999)).

II. WHETHER THE TRIAL JUDGE COMMITTED ERROR BY OVERRULING WARD’S MOTION IN LI-MINE

¶21. Ward asked the trial court to prevent the State from questioning its witnesses about a statement an eyewitness made about Ward and his brother switching drivers. The trial judge denied Ward’s motion in limine ruling that the eyewitness statement was both a present sense impression and an excited utterance, and therefore, was an exception to the hearsay rule under Mississippi Rules of Evidence 803(1) and 803(2).

¶ 22. On appeal, Ward argues that the eyewitness statement was inadmissible as a present sense impression because there was a lack of spontaneity and time for reflection. Ward also argues that the statement was inadmissible as an excited utterance because one driving through a roadblock and seeing two men switching drivers could not be so excited for such a statement to fit within the exception.

¶ 23. “[WJhen the trial judge’s determination is largely based upon a finding of fact, and he applied the correct legal standards, his determination should not be overturned unless his findings of fact were clearly erroneous, as not being supported by substantial evidence.” Morris v. State, 777 So.2d 16, 24 (¶ 29) (Miss.2000).

¶ 24. “A present sense impression is a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.” Evans v. Clemons, 872 So.2d 23, 32 (¶ 39) (Miss.Ct.App.2003). It is based on the absence of opportunity for deliberation. Id. “An excited utterance is defined as a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Id. “The rationale for this exception is that one caught in a sudden, startling event lacks the capacity for calm reflection, tending to make such statements reliable.” Id.

¶ 25. In denying Ward’s motion, the trial judge ruled that the statement was a present sense impression of the person observing the event at the time that it was occurring and the statement was made at the time of observation. The record indicates the Jeep that Ward was in came to an abrupt stop in the middle of Highway 82. The eyewitness was driving a truck on Highway 82 directly behind Ward and was forced to stop his vehicle once Ward stopped the Jeep. Officer Word testified that he was twenty-five yards away when he noticed the Jeep stopping and stated that he was near the hood of the Jeep by the time that the switch was complete. Officer Word immediately ordered the Jeep to pull over on the shoulder of the road. At that same time, the eyewitness told Officer Word that the drivers had switched places. At most, it was a matter of seconds between the time the eyewitness observed Ward’s actions until he relayed what he saw to Officer Word. As a result, we find that the trial judge’s finding was supported by substantial evidence.

¶ 26. Likewise, we cannot say that the trial judge was clearly erroneous in labeling the eyewitness statement as an excited utterance. Ward argues that a person going through a roadblock cannot be said to possess the requisite excitement. We disagree. As noted above, the eyewitness was forced to come to an abrupt stop in the middle of the highway at night and then saw two men exit the Jeep in front of him and switch places while a police officer ran towards the Jeep with his flashlight on. As noted above, the out of court statement was spontaneous and made only seconds after the events happened. Therefore, we find no merit to this issue.

III. WHETHER THE TRIAL JUDGE COMMITTED PLAIN ERROR BY ALLOWING THE ARRESTING OFFICER TO TESTIFY AS TO THE RESULTS OF THE HORIZONTAL GAZE-NYSTAGMUS FIELD SOBRIETY TEST AND THE RESULTS OF THE PORTABLE INTOXILIZER BREATH TEST AS EVIDENCE OF WARD’S INTOXICATION

¶ 27. Ward argues that the horizontal gaze-nystagmus test and the portable breath test are admissible only for purposes of establishing probable cause. Since Ward failed to make a contemporaneous objection, he relies on the plain error doctrine to raise the issue on appeal.

¶28. “The relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused.” Palmer v. City of Oxford, 860 So.2d 1203, 1207 (¶ 10) (Miss.2003). In the instant case, Officer Word testified that he used the test only as indicators of Ward’s impairment. Officer Word testified that Ward failed the portable Intoxilizer breath test but did not state the result in numerical terms. Officer Word even admitted that those tests were used to show probable cause for arrest until an Intoxilizer test could be administered at the Sheriffs Department. We find no plain error. Therefore, this issue is proeedurally barred.

IV. WHETHER THE JURY VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE OR WHETHER THE CUMULATIVE ERRORS SHOULD HAVE RESULTED IN A NEW TRIAL

¶ 29. Ward argues that he is entitled to a new trial because the jury’s verdict was against the overwhelming weight of evidence. “[I]n determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence presented as supportive of the verdict, and we will disturb a jury verdict only when convinced that the circuit court has abused its discretion in failing to grant a new trial or if the final result will result in an unconscionable injustice.” Doolie v. State, 856 So.2d 669, 671 (¶ 7) (Miss.Ct.App.2003).

¶ 30. The State’s evidence consisted of testimony from Officer Word and Deputy Sallis. Officer Word is a trained DUI officer who was certified to administer all of the tests that Ward received. Officer Word testified that Ward’s eyes were bloodshot and his breath smelled like alcohol. Ward admitted to drinking liquor and beer on the night in question. He failed the horizontal gaze-nystagmus field test and the portable breath Intoxilizer test. Ward also failed the two field tests and the Intoxilizer test that were conducted at the Sheriffs Department. As a result, it seems clear that Ward was under the influence of alcohol.

¶ 31. The critical issue is whether Ward was driving the Jeep as it approached the roadblock. Ward argues that he was not driving the Jeep that night and all of his witnesses attempt to corroborate this point. However, “the jury is the judge of the weight and credibility of testimony and is free to accept or reject all or some of the testimony given by each witness.” Id. Officer Word testified that Ward and his brother switched places. In addition, his testimony was corroborated by Deputy Sallas and an unnamed eyewitness. This act of switching drivers was an indication to the jury that Ward was aware of his condition and sought to conceal it from the police. Any claim that Ward’s brother was driving the Jeep at all pertinent times that night was properly considered and resolved by the jury. Therefore,- this Court cannot hold that an unconscionable injustice would occur by allowing the verdict to stand.

¶ 32. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY OF CONVICTION OF FELONY DUI AS AN HABITUAL OFFENDER AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: CHANDLER, J.,

text:
    Willie Earl CLAY a/k/a Willie E. Clay, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-00235-COA.
    Court of Appeals of Mississippi.
    Aug. 24, 2004.
    Rehearing Denied Nov. 2, 2004.

      James A. Williams, Brookhaven, attorney for appellant.
    Office of the Attorney General by Charles W. Maris, Billy L. Gore, attorneys for appellee.
   CHANDLER, J.,

for the Court.

¶ 1. This appeal arises from a November 25, 2002 order of the Lauderdale County Circuit Court sentencing Willie E. Clay as an habitual offender after a jury found him guilty of burglary of a dwelling, pursuant to Mississippi Code Annotated section 97-17-23 (Rev.2000). Clay raises five issues on appeal challenging the manner in which identification testimony was introduced, the circuit court’s handling of the jury’s apparent confusion over a lesser-included offense instruction, the effectiveness of trial counsel and the sufficiency of the evidence supporting the jury’s verdict. He further asserts that the cumulative effect of the errors complained of denied his right to a fair and impartial trial. Finding no merit to these assignments of error, we affirm Clay’s sentence and conviction.

FACTS

¶2. In mid-afternoon, on July 6, 2001, seventy-year-old Mary Katherine Duke heard a noise at her front door which sounded “like someone was tearing it up.” She found the solid wood door kicked in and a man standing in her living room. She screamed at him; he looked at her without speaking and started toward her. As she started to run through the kitchen, he grabbed her blouse and pulled her back. She threw one chair in front of him and pushed another in his way before falling out the back door and down the steps. The man ran back out the front door and backed his car down the road.

¶ 3. Mrs. Duke’s nephew, Langdon Duke, who lived in a trailer behind her house, heard his aunt’s screams. He ran to her assistance and together they went around to the front yard where Langdon threw a rock at the intruder’s car. Before calling the sheriffs department, they tried unsuccessfully to get a license tag number as the white, four-door car backed away.

¶ 4. Mrs. Duke testified at trial that the same man had come to her house the previous Sunday. He had inquired about a man named “Tuttle,” claiming that he was responding to an ad in the newspaper. He also had asked to use her telephone and she brought a portable phone outside for him.

¶ 5. Ricky Presson, an investigator with the Lauderdale County Sheriffs Department, responded to Mrs. Duke’s call and was assigned to investigate the case. The State Crime Laboratory was not able to make an identification of any fingerprints taken at the scene. Based on the Dukes’ description of the intruder and his car, however, the sheriffs deputies thought Clay might, be a suspect. Investigator Presson prepared a line-up of some photographs, including Clay’s. He testified that when he first showed the line-up to Mrs. Duke, she became very frightened and said she would have to see the individual in person to make a positive identification. She later identified a more recent picture of Clay in another photo line-up Presson prepared.

¶ 6. Investigators then questioned Clay’s girlfriend, Betty Doss, about Clay’s whereabouts at the time of the crime, and the vehicle he was driving. Her description of a white 1985 Suburu with a dented right side matched the description given to Presson by Mrs. Duke and her nephew. It subsequently was found in the possession of a local mechanic, Jimmy Hopson, to whom Clay had given the car as security for money he borrowed from Hopson to buy back the car title from a local “Title for Cash” store.

¶ 7. Clay’s girlfriend brought him into the sheriffs office on July 10, 2001. He gave a statement to Investigator Presson, admitting that he had been at Mrs. Duke’s home. Clay, however, told authorities that he had knocked on Mrs. Duke’s door to ask if she had seen the man he had been looking for previously and if she needed any yard work done. Clay stated that he asked her if he could have some water and when she turned to go inside, he thought she wanted him to come inside, too. He stated that “when I stuck my leg inside the door she panic [sic] and started hollering and pushing the door.” He further claimed to have panicked, too, and started walking “real fast” to his car, while Mrs. Duke “was screaming and hollering stuff.”

¶ 8. On August 1, 2002, Clay was indicted by the grand jury of the Lauderdale County Circuit Court for burglary of a dwelling. His trial was held on November 25, 2002. Clay elected not to testify. The jury returned two separate verdicts, finding him guilty of burglary of a dwelling as well as of the lesser included offense, illegal trespass. After the circuit judge re-instructed the jury that it could return only one verdict, the jury deliberated further and found Clay guilty of burglary of a dwelling. Clay’s motions for a mistrial, a new trial and a motion for a JNOV were denied by the circuit court. Clay was sentenced as an habitual offender to serve twenty-five years in the custody of the Mississippi Department of Corrections.

LAW AND ANALYSIS

I. WHETHER CLAY WAS DENIED A FAIR TRIAL BY THE IDENTIFICATION TESTIMONY GIVEN BY INVESTIGATOR RICKY PRESSON

¶ 9. Clay first asserts that he was prejudiced by the State’s questioning of Investigator Ricky Presson, which, he contends, impermissibly revealed to the jury that he previously had been in trouble with the law and was “known to law enforcement.” However, as distinguished from Robinson v. State, 735 So.2d 208 (Miss.1999) and Edlin v. State, 533 So.2d 403 (Miss.1988), on which Clay relies, no evidence of prior crimes, convictions or bad acts was introduced at trial. Rather, he now objects only to Presson’s testimony regarding Mrs. Duke’s identification of Clay from a photo line-up as well as his discussion with other investigators which led to the development of Clay as a suspect. While Clay’s attorney made several timely objections during Presson’s testimony, he did not object at trial to the lines of questioning to which he now objects. His right to raise these issues for appellate review, therefore, is forfeited. Walker v. State, 671 So.2d 581, 587 (Miss.1995); Kelly v. State, 463 So.2d 1070, 1073 (Miss.1985).

¶ 10. Clay, however, contends that the State’s line of questioning was so egregious as to amount to plain error. As the State points out, “[t]he plain error doctrine permits this court to review errors committed during trial, even if they are not properly preserved on appeal, where those errors impact fundamental rights.” Jackson v. State, 815 So.2d 1196, 1199(¶ 5) (Miss.2002). Clay does not articulate what fundamental rights were affected or how his rights may have been impacted by the testimony. Furthermore, no evidence of Clay’s prior crimes or convictions, subject to limitation by Rule 404(b) of the Mississippi Rules of Evidence as discussed in Robinson, was even presented at trial. Accordingly, we find no merit to this assignment of error.

II. WHETHER THE CIRCUIT COURT ERRED IN FAILING TO GRANT A MISTRIAL AFTER THE JURY RETURNED TWO SEPARATE VERDICTS

¶ 11. The jury received separate instructions on the elements of the crimes of burglary of a dwelling and illegal trespass. Clay requested and received a lesser-in-eluded offense instruction, which allowed the jury to find him guilty of burglary, guilty of illegal trespass or not guilty. Instruction C-ll, drafted by the defense, was worded as follows:

¶ 12. The Court instructs the jury that your verdict shall be returned to the Court in one of the following forms:

1. Should you find the defendant guilty of burglary of a dwelling, then your verdict shall be:
“We, the jury, find the defendant guilty of burglary of a dwelling.”
2. Should you find the defendant not guilty of burglary of a dwelling, but guilty of wilfull [sic] trespass, then your verdict shall be:
‘We, the jury, find the defendant guilty of wilfull [sic] trespass.”
3. Should you find the defendant not guilty of burglary of a dwelling and not guilty of wilfull [sic] trespass, then your verdict shall be:
“We, the jury, find the defendant not guilty.”

The jury returned two verdicts: one finding Clay guilty of burglary of a dwelling; the other, guilty of illegal trespass. The circuit judge re-directed the jury’s attention to Instruction C-ll, emphasizing that there could be only one verdict in the case. He instructed the jury to return to the jury room and resume deliberations until a unanimous decision as to one form of the verdict was reached. After five minutes, the jury returned a verdict finding Clay guilty of burglary of a dwelling. Clay moved for a mistrial.

¶ 13. While Clay sets forth the general proposition that the circuit court erred in failing to grant his motion for a mistrial, he specifically faults the judge for finding that the jury was “confused,” rather than “in conflict.” Thus, because the judge did not instruct the jury pursuant to Sharplin v. State, 330 So.2d 591, 596 (Miss.1976), Clay asserts that his case should be reversed and remanded. A Sharplin instruction, however, is appropriate only when the jury is unable to agree on a verdict. The jury was polled and there is no evidence in the record to suggest that it was deadlocked. To the contrary, it shows only that instead of following the court’s instruction to reach one verdict, the jury entered tivo separate but consistent verdicts: one finding Clay guilty of the crime for which he was indicted and the other convicting him of the lesser-included offense. Sharplin, therefore, is inapplicable.

¶ 14. Mississippi Code Annotated section 99-19-11 (Rev.2002) provides that “[i]f the verdict is informal or defective the court may direct it to be reformed at the bar.” Further, Rule 3.10 of the Uniform Rules of Circuit and County Court Practice provides that “[i]f a verdict is so defective that the court cannot determine from it the intent of the jury, the court shall, with proper instructions, direct the jurors to reconsider the verdict.” Accordingly, “[t]he general rule is that the court may require the jury to clear up an indefinite or ambiguous verdict and, ‘[i]n-deed, it is the duty of the court to direct the jury to reconsider their verdict when satisfied that there has been a palpable mistake.’ ” Anderson v. State, 231 Miss. 352, 360, 95 So.2d 465, 467 (Miss.1957) (quoting 23 C.J.S. Criminal Law §§ 1412, 1413). The trial judge correctly followed the law by re-instructing the jurors as to the proper form of the verdict as expressed in Instruction C-ll and sending them back to the jury room for further deliberations. Accordingly, there is no merit to Clay’s assertion that the circuit court erred in not granting his motion for a mistrial.

III. WHETHER CLAY WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL BY HIS APPOINTED ATTORNEY

¶ 15. In his third assignment of error, Clay contends that his attorney failed to adequately pursue at trial his defense that he did not have the requisite intent to commit burglary. Notwithstanding his on-the-record decision not to testify, Clay now mentions, albeit only in passing, that given the evidence presented at trial, it was “imperative” for him to testify. His actual argument on appeal, however, focuses on objections his attorney should have made and questions he should have asked on cross-examination.

¶ 16. “The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Simon v. State, 857 So.2d 668, 682 (¶ 22) (Miss.2003). To establish a claim of ineffective assistance of counsel, Clay must prove that under the totality of the circumstances (1) counsel’s performance was deficient and (2) that the deficiency deprived him of a fair trial. Howard v. State, 853 So.2d 781, 796 (¶ 47) (Miss.2003). On matters of trial strategy, which form the basis of Clay’s assignment of error, this Court generally defers to the judgment of counsel. Woods v. State, 806 So.2d 1165, 1169 (¶ 13) (Miss.Ct.App.2002). It is well-established that “ ‘counsel’s choice of whether to file certain motions, call witnesses, ask certain questions, or make certain objections falls within the ambit of trial strategy’ and cannot give rise to an ineffective assistance of counsel claim.” Howard, 853 So.2d at 796 (¶ 47) (quoting Jackson v. State, 815 So.2d 1196, 1201 (Miss.2002)). Accordingly, because Clay’s claims fall wholly within the realm of trial strategy, there is no merit to the assignment of error.

TV. WHETHER THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE VERDICT OF THE JURY

¶ 17. The circuit court denied Clay’s motions for a JNOV and for a new trial. Clay now asserts that the evidence presented at trial does not support the jury’s finding that he was guilty of burglary. He contends that his statement explained his presence in the house and suggests that the situation was simply a misunderstanding.

¶ 18. The jury is charged with weighing and considering conflicting evidence and the credibility of the witnesses. McClain v. State, 625 So.2d 774, 778 (Miss.1993). In questioning the sufficiency of the evidence, we are required to review that evidence in a light most favorable to the State, giving it the benefit of all reasonable inferences which may be drawn from it and accepting as true that evidence which supports guilt. Id. This court is authorized to reverse only where, with respect to one or more elements of the offense charged, the evidence is such that reasonable and fair-minded jurors could only find the accused not guilty. Id.

¶ 19. Similarly, a motion for a new trial asks the Court to hold that the verdict was contrary to the overwhelming weight of the evidence. Crowley v. State, 791 So.2d 249, 253 (¶ 15) (Miss.Ct.App.2000). When a motion for a new trial is made, this Court must accept as true all evidence that favors the jury’s verdict. Youngblood v. State, 759 So.2d 479, 483 (¶ 17) (Miss.Ct.App.2000). “Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Dudley v. State, 719 So.2d 180, 182(¶ 8) (Miss.1998).

¶ 20. Our standard of review requires that we look not only at the evidence presented, but also at the reasonable inferences which may be drawn from it. McClain, 625 So.2d at 778. The jury, too, as the finder of fact, is entitled to consider not only the testimony of the witnesses, but all inferences that may be reasonably and logically deduced therefrom. Pryor v. State, 349 So.2d 1063, 1064 (Miss.1977). Although nothing was actually stolen from the house and Clay asserts that the incident was simply a misunderstanding, or at best, trespass, the jury could have inferred from the testimony at trial that he broke into Mrs. Duke’s house with the intent to steal.

¶ 21. Evidence was presented to show that Clay had approached Mrs. Duke at her house only a week before the break-in. On the afternoon of July 6, 2001, Mrs. Duke’s car was not parked in front of her house and it was not apparent that she was at home. Her locked front door was kicked open and Clay entered the house. He fled when Mrs. Duke screamed for help. “Intent is an emotional operation of the mind, and it is usually shown by acts and declarations of the defendant coupled with facts and circumstances surrounding him at the time.” Dixon v. State, 240 So.2d 289, 290 (Miss.1970). Considering the facts of the crime, along with the evidence that Clay had just borrowed money from James Hopson to retrieve the title of his car from a “Cash for Title” business and within days after the incident gave Hopson the car as security for his debt, it reasonably máy be inferred that Clay needed money and had the requisite intent to steal when he broke into Mrs. Duke’s house. It was well within the jury’s province to weigh these facts, and the inferences which could be drawn from them, against Clay’s statement that he had asked for a drink of water and that the door broke when he stuck his foot across the threshold, thinking Mrs. Duke had invited him inside.

¶ 22. Looking at the evidence in a light most favorable to the State, we find that there is sufficient evidence to support the jury’s verdict. Further we find that the evidence is not contrary to the verdict entered by the jury. The assignment of error is without merit.

Y. WHETHER THE CUMULATIVE ERRORS AT TRIAL NECESSITATE REVERSAL OF CLAY’S SENTENCE AND CONVICTION

¶23. In his final assignment of error, Clay suggests that the cumulative effect of the errors at trial denied his right to a fair and impartial trial. Although Clay lists several cases, including King v. State, 857 So.2d 702 (Miss.2003), he neither sets forth any argument nor provides us with any clues as to the relevance of the cited cases. Where the appellant has provided no meaningful argument in support of an assignment of error he has raised, the issue is waived. King, 857 So.2d at 716 n. 3 (¶ 23); Jones v. State, 841 So.2d 115, 138 (¶ 70) (Miss.2003); Pate v. State, 419 So.2d 1324, 1325-26 (Miss.1982).

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY OF CONVICTION OF BURGLARY OF A DWELLING HOUSE AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO LAUDERDALE COUNTY.

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


text:
    Michael D. RICHARDS, Appellant, v. HARRAH’S ENTERTAINMENT, INC., Appellee.
    No. 2003-WC-00204-COA.
    Court of Appeals of Mississippi.
    Aug. 24, 2004.

      Ellis Turnage, Cleveland, attorney for appellant.

      Jeffrey Dean Leathers, Valarie Blythe Hancock, Michael D. Greer, Tupelo, attorneys for appellee.
   MYERS, J.,

for the Court.

¶ 1. Michael D. Richards appeals to this Court from an order of the Circuit Court of Tunica County, Mississippi in which the circuit court reversed an award of fourteen percent loss of wage earning capacity by the Workers’ Compensation Commission. The circuit court ordered that Richards be awarded a thirty percent loss of wage earning capacity. On appeal, Richards raises the following issue for our consideration: whether the Commission’s order awarding him a fourteen percent loss of wage earning capacity is without substantial evidence, is clearly erroneous or is premised on incorrect legal standards?

STATEMENT OF FACTS

¶ 2. The record reflects that Richards was employed by Harrah’s Casino located in Tunica, Mississippi as a bar back. On April 13, 1995, Richards injured his back while bending over to lift a beer keg off the floor. At the time of his injury, Richards made $8.84 per hour and his average weekly wage was $412.05. As a result of his back injury, Richards sought medical treatment from several physicians who diagnosed him as having lower back strain. Richards reached maximum medical improvement on August 1,1995.

¶ 8. Richards returned to work at Har-rah’s as a restaurant host earning the same pay he received prior to his injury. Richards worked less than one week 'as a host before quitting on November 18,1995, because the host job required him to stand for long periods of time which caused pain in his back. During the period after his leaving Harrah’s, Richards worked at several other jobs. Those jobs included Man-tec in Memphis, Tennessee where Richards made between $7 and $10 per hour; Memphis Public Schools at $6.02 per hour and Glenborough Realty at $7 per hour.

¶ 4. On October 11, 1996, Richards filed a petition to controvert. Harrah’s answered admitting the work-related injury but denying any loss of wage earning capacity. A hearing on the merits was held on April 15, 1998, and the administrative judge for the Commission issued an order finding that Richards sustained a permanent disability resulting in a loss of wage earning capacity of seven percent. After Richards appealed the order from the administrative judge, the Commission remanded the claim back to the administrative judge for further review on Richards’ loss of wage earning capacity. Upon remand, another hearing was held and the administrative judge found that considering his age, education, work history and medical impairment, Richards suffered a fourteen percent loss of wage earning capacity. Richards appealed again to the Commission and the Commission affirmed the findings of the administrative judge based on “the evidence as a whole.”

¶ 5. Pursuant to Mississippi Code Annotated Section 71-3-51 (Rev.2000), Richards appealed the order of the Commission to the Tunica County Circuit Court which reversed the prior ruling of a fourteen percent loss of wage earning capacity and found that Richards suffered a thirty percent loss of wage earning capacity. Richards now appeals to this Court based on the order of the circuit court. The finding of the Commission that Richards suffered a fourteen percent loss of wage earning capacity was supported by substantial evidence and the circuit court improperly reweighed the evidence. Therefore, we reverse the decision of the circuit court and reinstate the fourteen percent loss of wage earning capacity awarded by the Commission.

LEGAL ANALYSIS

I. WAS THE ORDER OF THE WORKERS’ COMPENSATION COMMISSION AWARDING RICHARDS A FOURTEEN PERCENT LOSS OF WAGE EARNING CAPACITY SUPPORTED BY SUBSTANTIAL EVIDENCE?

¶ 6. Richards contends that the order of the Commission was not supported by substantial evidence. Our standard of review in workers’ compensation cases is well-settled. The Commission is the ultimate finder of fact and this Court defers to the findings of the Commission when they are supported by substantial evidence. Tyson Foods, Inc. v. Thompson, 765 So.2d 589, 591 (¶ 10) (Miss.Ct.App.2000). The circuit court acts as an intermediate court and must also defer to the findings of the Commission when supported by substantial evidence. Id. at 592 (¶ 13). This Court will not overturn a Commission decision unless it is premised on an error of law or an unsupported finding of fact. J.R. Logging v. Halford, 765 So.2d 580, 584 (¶ 15) (Miss.Ct.App.2000).

¶ 7. When determining loss of wage earning capacity, several factors must be considered by the reviewing court. Those factors are: (1) an increase in general wage levels, (2) increased maturity or training, (3) longer hours worked, (4) sympathy wages, (5) temporary and unpredictable character of post-injury earnings, (6) employee’s inability to work, (7) employee’s failure to be hired elsewhere and (8) the continuance of pain and other related circumstances. Guardian Fiberglass, Inc. v. LeSueur, 751 So.2d 1201, 1204-05 (¶ 10) (Miss.Ct.App.1999). The determination must be made by evaluating the evidence as a whole. Id. at 1205 (¶ 10). Disability is the “incapacity, because of injury to earn wages which the employee was receiving at the time of the injury in the same or other employment.” Jordan v. Hercules, Inc., 600 So.2d 179, 183 (Miss.1992). The burden is on the claimant to prove an industrial injury by showing medical impairment and that the medical impairment resulted in a loss of wage earning capacity. Guardian, 751 So.2d at 1205 (¶ 10) (citing Miss.Code Ann. §§ 71-3-3(1), 71-3-17(c)(25) (Rev.2000)).

¶ 8. Richards began working at Harrah’s in 1993 as a bar back. His injury occurred in April of 1995. Richards was treated by several doctors who all diagnosed him with low back strain and pain. He received impairment ratings ranging from 2% to 7% to his body as a whole. He was advised not to lift objects greater than twenty to twenty-five pounds. After the injury, Richards returned to work at Harrah’s as a host at the same rate of pay. He was terminated from this job when he contended that he could not perform the job because of constant standing which caused muscle spasms.

¶ 9. Since his injury at Harrah’s, Richards has consistently been employed. He obtained employment in 1996 with Mantee cleaning service with a $7 per hour rate of pay. When Richards was promoted to manager, his pay increased to $10 per hour. Richards was terminated from Mantee in 1997. He then was employed by the Memphis Public Schools as a substitute helper, working two to three days per week at $6.02 per hour. Richards returned to work at Mantee with a pay of $7 per hour and no overtime. He was then hired by another cleaning company at $6.25 per hour. After working there for two or three months, Richards was employed as a custodian for Glenborough Realty at $7 per hour with no overtime. He left this job after five months when he claimed to have hurt his back while raking leaves. Richards returned to work for the Memphis Public Schools as a custodian, working forty hours per week at $6.02 per hour. Richards was employed here at the time of his second hearing before the administrative law judge. Richards claims that he still suffers from back pain which requires him to wear a back brace and take over-the-counter medications for relief.

¶ 10. The decision on loss of wage earning capacity is “largely factual and is to be left largely to the discretion and estimate of the Commission.” Dunn, Var-daman S. Mississippi Workmen’s Compensation § 68 (3d ed.1982). Richards’s argument that the fourteen percent figure was reached by totaling his medical impairment ratings is purely speculative and unsupported by the record. The administrative law judge based his finding of a fourteen percent loss of wage earning capacity on a consideration of “Mr. Richards’ age, education, work history, and medical impairment.” The Commission considered the facts presented and affirmed the decision of the administrative law judge based on “the evidence as a whole, and not on any particular job or wage earned by Mr. Richards since reaching maximum medical improvement.”

¶ 11. The circuit court in this case applied an incorrect standard of review by re-weighing the evidence presented and reversing the order of the Commission as to loss of wage earning capacity. The circuit court is an intermediate court and must defer to the findings of the Commission when supported by substantial evidence. Tyson Foods, Inc., 765 So.2d at 592 (¶ 13). The record reflects that the Commission’s order of fourteen percent loss of wage earning capacity is supported by substantial evidence and must be affirmed. We, therefore, reverse the order of the circuit court and reinstate the order of the Commission.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY IS REVERSED AND THE ORDER OF THE WORKERS’ COMPENSATION COMMISSION IS REINSTATED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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