author: MCMILLIN, C.J.,

text:
    Steven R. NICHOLS, Appellant/Cross-Appellee, v. Michael E. MOSES, M.D., Appellee/Cross-Appellant.
    No. 2002-CA-00710-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2003.

      Jim Davis, Fort Lauderdale, attorney for appellant.
    Margaret Franklin Puckett McArthur, Harry R. Allen, Sarasota, Ross Douglas Vaughn, attorneys for appellee.
    Before MCMILLIN, C.J., MYERS and GRIFFIS, JJ.
   MCMILLIN, C.J.,

for the court.

¶ 1. This is an appeal from a defendant’s verdict returned by a Harrison County, First Judicial District, Circuit Court jury in a medical malpractice action. Steven Nichols sought recovery for damages against Dr. Michael Moses, a surgeon who performed an operation intended to correct problems related to a Koch Pouch previously implanted in Nichols. Nichols advanced several alternate theories of liability on the part of Dr. Moses that generally dealt with claims that the surgery was unnecessary and unhelpful in relieving the problem or that the surgery was negligently performed. The issue presented on appeal involves Nichols’s contention that the jury was not properly instructed on the applicable law. We do not find the matters raised in regard to the instructions to rise to the level of reversible error and, for that reason, we affirm the judgment of the circuit court.

I.

Facts

¶ 2. A detailed recitation of the underlying facts does not appear necessary to an understanding of the issues presented in this appeal. In summary, the evidence showed that Nichols had previously undergone a surgical procedure for removal of his large intestine. In 1982, an additional surgery was performed to implant a Koch Pouch — a device that permits the collection of intestinal discharge from the small intestine for periodic removal. In 1997, Nichols began to experience difficulties, including vomiting, nausea, and an inability to eat solid food. Ultimately, Dr. Moses, the treating physician, determined that Nichols had scar tissue or adhesions causing a blockage of the intestinal tract. The suggested remedy was a surgical procedure called an enteroenterostomy, which involves making a new or additional entry from the intestinal tract into the pouch.

¶ 3. After some initial improvement, Nichols began to experience distress once again and he was transferred to the care of Dr. Pollack, a Florida physician with substantial experience with the Koch Pouch. Dr. Pollack determined that another surgical procedure was indicated, but was unable to perform the surgery because of inflammation and swelling in the intestines. After a difficult period of confined bed rest, Nichols improved enough for surgery and Dr. Pollack discovered an adhesion in the small intestines that was causing an obstruction. After Dr. Pollack’s surgery, Nichols recovered.

¶ 4. In his suit against Dr. Moses, Nichols alleged the following actions or omissions constituted a deviation from the standard of care required of a physician in Dr. Moses’s circumstance: (a) that the initial surgery was not indicated because there was no intestinal blockage at the time; (b) that Dr. Moses should have done a retrograde dye flush prior to surgery, which would have plainly shown the existence of any blockages or obstructions that did, in fact, exist; and (c) that the surgery itself was negligently performed, causing a twist or kink in the intestinal tract that led to the post-operation problems corrected by Dr. Pollack.

¶ 5. In attempting to fashion jury instructions that would properly and fairly instruct the jury as to the law applicable to Nichols’s various alternate theories of liability, the attorneys and the trial court engaged in extended discussion and the pivotal instruction ultimately given as Instruction D-5C was substantially redrafted at the direction of the trial court. The full text of the instruction is quoted in Addendum A to this opinion; however, only certain excerpts from the language of the instruction are essential to an understanding of the central issue argued by Nichols to constitute reversible error. At the insistence of defense counsel, the instruction was modified to instruct the jury that Nichols was required to establish the elements of his negligence claim by a “preponderance of the evidence through medical expert testimony.” (emphasis added). Additionally, at its conclusion, the instruction contained the following sentence: “However, if you believe from the evidence in this case that the Plaintiff Nichols has failed to prove any one of the foregoing elements by a preponderance of the evidence through medical expert testimony in this case, then your verdict shall be for the Defendant Moses.” (emphasis added).

¶ 6. Nichols maintains that the phrase “through medical expert testimony” was an improper addition to the instruction that had the effect of unduly limiting the jury in its consideration of all the evidence and, instead, singling out medical expert testimony as the only evidence to be considered by the jury.

¶ 7. We conclude that this additional phrase inserted into the instruction was not advisable and unhelpful to the jury in its deliberations. However, as Nichols himself concedes in his brief, the phrase does represent an accurate statement of the law regarding proof of negligence in a medical malpractice case. The problem with the addition of the phrase to a jury instruction is that, in our view, it does nothing to aid the jury in its deliberations and is, thus, mere surplusage. Because of the complexity that often arises in attempting to properly instruct a jury in a complicated medical malpractice case or other litigation involving intricate and difficult issues, it is important, in an effort to avoid potential confusion, to winnow out uninstructive passages such as this rather than to add to them phrase upon modifying phrase until even the most conscientious juror’s ability to be enlightened and assisted is strained to the breaking point.

¶ 8. There is no doubt, as Nichols concedes, that the circumstances of this case bring it under the general proposition that negligence in the provision of medical treatment must be proven through expert medical testimony. Walker By and Through Walker v. Skiwski, 529 So.2d 184, 187 (Miss.1988) (citing Cole v. Wiggins, 487 So.2d 203, 206 (Miss.1986)). However, this long-standing rule of law in this state concerns itself more with such issues as witness competency, admissibility of evidence, and the legal sufficiency of the plaintiffs case than it does with the proper instruction of the jury. The proper considerations are all matters that fall within the province of the trial court to control and, to the extent they are properly handled by the trial court, they have already been satisfactorily resolved according to the law before the jury is instructed and the controversy is submitted for decision.

¶ 9. If, for example, the plaintiff is unable to satisfy the trial court that he will be able to present competent expert medical testimony to support his malpractice claim, he may find himself out of court on a summary judgment motion before a jury is assembled. See, e.g., Mallet v. Carter, 803 So.2d 504 (Miss.Ct.App.2002). Also, it is singularly within the province of the trial court, as a part of its duty to control the flow of evidence admitted at trial, to make a determination as to whether a proffered witness possesses the necessary expertise to offer expert opinion evidence on the critical disputed issues of a malpractice case. M.R.E. 702; See, e.g., Pharr v. Anderson, 436 So.2d 1357 (Miss.1983). If, during the course of the trial, some attempt is made to present such opinion evidence from a witness not qualified to do so, it is the trial court’s responsibility to prevent that evidence from reaching the jury upon timely objection. See, e.g., Roberts v. Grafe Auto Co., Inc., 701 So.2d 1093 (Miss.1997). And, ultimately, as the last stop before submission of a malpractice case to the jury, it is within the trial court’s realm of responsibility to review the evidence and, upon reaching the conclusion that the plaintiff has failed to present competent expert testimony relating to the applicable standard of care and the manner in which it was breached, to direct a verdict for the defendant.

¶ 10. Thus, if the trial has been properly conducted, the plaintiff will have presented the necessary expert opinion evidence from one or more witnesses determined in advance by the trial court to be qualified to express such opinions, and the jury will have been properly instructed as to what particular findings of fact are necessary, under the law, to establish a legitimate claim of negligence. In that situation, there is no necessity for inserting the phrase “through medical expert testimony” as a limiting condition on the jury’s deliberations since such evidence would necessarily be the only evidence presented to them at trial on those particular issues. Only if the trial court had previously erred in admitting incompetent evidence as to the plaintiffs theory regarding the defendant’s deviation from the applicable standard of care would there be any evidence in the record other than “medical expert testimony” for the jury to consider. Such a situation presents an evidentiary problem to be resolved by the trial court or an appellate court and is not something that the jury can resolve in its deliberations by disregarding certain aspects of the proof. If no such inadmissible evidence found its way into the record, then the only other factor possibly affecting the jury’s deliberations would be that it might give way in its deliberative process to conjecture or speculation. Certainly, for the jury to permit such extraneous matters to enter into its deliberative process is contrary to the law, but it is highly doubtful that a jury so inclined would be restrained by the addition of the disputed phrase to the instructions given it by the trial court.

¶ 11. In summary, though we find the additional language unhelpful and having the result of making the jury instructions cumbersome and thus potentially more confusing than they necessarily have to be, we note that the phrase does accurately reflect the law relating to malpractice cases. We also observe that Nichols has been unable to present this Court with a convincing argument as to exactly how this legally correct but unhelpful surplusage actually prejudiced him on the facts of this case. In particular, he points to no competent evidence in the record that is favorable to his theory of the case that the additional phrase in the instructions might have caused the jury to ignore.

¶ 12. The case was vigorously tried and both sides were able to present evidence tending to show that party’s right to prevail. The jury was fairly instructed as to those necessary facts that it must have found to return a verdict for Nichols and the jury returned a verdict in favor the defendant, Dr. Moses. While we do not approve of the insertion of the phrase “through medical expert testimony” as a standard practice in drafting jury instructions in medical malpractice cases, we do not think that, in this case, its inclusion so improperly affected the jury in its deliberations that the verdict ought to be reversed.

¶ 13. Dr. Moses filed a cross-appeal raising several issues. Our decision to affirm the jury’s verdict in his favor on the direct appeal renders the cross-appeal moot.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS AFFIRMED AS TO THE DIRECT APPEAL. THE CROSS-APPEAL IS RENDERED MOOT. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

Addendum A

JURY INSTRUCTION D-5C

The Court instructs the jury that if the Plaintiff establishes by a preponderance of the evidence through medical expert testimony in this case that:

1. the Plaintiff did not have a small bowel obstruction at the time Dr. Moses performed surgery on April 11, 1997, and
2. the decision of Dr. Moses to perform an enteroenterostomy during the surgery of April 11, 1997, constituted a failure by Dr. Moses to exercise that degree of care and skill which a minimally competent general surgeon practicing in the United States would have exercised in the same or similar circumstances and
3. the enteroenterostomy performed by Dr. Moses was a proximate contributing cause of injury and/or damage to the Plaintiff, Steven R. Nichols then your verdict shall be for the Plaintiff.

However, if you believe from the evidence in this case that the Plaintiff Nichols has failed to prove any one of the foregoing elements by a preponderance of the evidence through medical expert testimony in this case, then your verdict shall be for the Defendant Moses.


source: Caselaw Access Project

author: KING, P.J.,

license: Public Domain

text:
    Edward Lee WILLIAMS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00752-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2003.

      Pamela A. Ferrington, Natchez, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   KING, P.J.,

for the court.

¶ 1. Edward Lee Williams was found guilty of sexual battery by a jury in the Circuit Court of Adams County and sentenced to serve thirty years in the custody of the Mississippi Department of Corrections. On appeal, he argues that the evidence presented was insufficient to convict him of sexual battery and that the trial court erred in allowing the child witness to testify.

¶ 2. Finding no error, we affirm the conviction and sentence.

FACTS

¶ 3. Williams came home to Natchez, Mississippi from Chicago, Illinois on March 5, 2000, to visit his sister. Williams suffers from manic depression and schizophrenia and is taking several medications, including Thorazin, Haldol and Lithium.

¶ 4. On March 12, 2000, Williams and his eight-year-old female relative, W. E., walked to the store. He bought beer for himself and also candy for W.E. On the way back, they stopped at a fence beside the Cathedral School football field. What happened there is a matter of dispute.

¶ 5. Edna Williams Young, Williams’ niece, testified at trial that the young girl rubbed Williams’ penis and performed oral sex. Edna Williams Young testified that she saw the sexual acts while going for a walk near Cathedral School and that she cursed Williams and took the girl home in her ear. Williams denied that the incident occurred as Young testified. According to Williams, he only hugged the child. Williams told the jury that he and Young had a history of conflict.

¶ 6. At the time of the incident the alleged victim attended special education classes in school. The trial court allowed her to testify after questioning her. Her testimony contained many contradictions. She said twice that “he made me suck his thing.” When asked directly, she denied performing oral sex on Williams and said that she did “Nothing.” Tanya Butler, an investigator with the Natchez Police Department, testified that a sexual assault kit was collected from the victim, but that the oral swab used on the inside of the victim’s mouth was negative for seminal fluid. She testified that this was not uncommon.

DISCUSSION

I. WHETHER THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO SUPPORT THE VERDICT RENDERED BY THE JURY.

¶ 7. Williams argues that the evidence presented by the State was legally insufficient to support the conviction. Under Mississippi Code Annotated Section 97-3-95, the State was required to prove that the perpetrator engaged in sexual penetration of a child under the age of fourteen and that the perpetrator was twenty-four months or more older than the child.

¶ 8. In reviewing the legal sufficiency of the evidence, our authority to disturb the jury’s verdict is quite limited. Clayton v. State, 652 So.2d 720, 724 (Miss.1995). We consider the evidence in the light most consistent with the verdict. Id. The prosecution must be given the benefit of “all favorable inferences that may reasonably be drawn from the evidence.” Id. We may not reverse unless one or more of the elements of the offense charged is such that reasonable and fairminded jurors could only find the accused not guilty. McClain v. State, 625 So.2d 774, 778 (Miss.1993). The credible evidence consistent with the verdict must be accepted as true and the prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Id.

¶ 9. Williams concedes that the State put on sufficient proof of the ages of the victim and the perpetrator. Williams was “forty something” and obviously more than twenty-four months older than W. E.

¶ 10. The State also put on proof of sexual penetration of the child. W.E. testified that she performed oral sex on Williams after Williams bought her some candy. Edna Williams Young also testified that she saw the girl put Williams’ penis in her mouth. In Hennington v. State, 702 So.2d 403, 408 (Miss.1997), the court stated that “proof of skin to skin contact between a person’s mouth, lips or tongue and the genitalia of a person’s body, whether by kissing, licking or sucking, is sufficient proof of ‘sexual penetration.’ ”

¶ 11. We find that the State put on sufficient proof of the elements of the crime of sexual battery.

II. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE CHILD WITNESS TO TESTIFY.

¶ 12. Prior to the child, W. E., being allowed to testify, the court asked her several questions to determine whether she would be allowed to testify. The court found that she was competent to testify. Defense counsel objected and the court overruled the objection.

¶ 13. Under Mississippi Rule of Evidence 601, all witnesses are competent to testify unless they are incompetent or otherwise disqualified to testify. A child is competent to testify if the court ascertains that the child possesses “the ability to perceive and remember events, to understand and answer questions intelligently and to comprehend and accept the importance of truthfulness.” Mohr v. State, 584 So.2d 426, 431 (Miss.1991) (citing House v. State, 445 So.2d 815, 827 (Miss.1984)).

¶ 14. The trial court is afforded great deference in its determination that a child witness is competent to testify. In order to prevail in its effort to exclude the testimony of a child witness, the party opposing the testimony must show that at the time the court made its initial decision that it was apparent that the witness did not meet the criteria for testifying, not that the subsequent testimony was flawed or that the initial determination was possibly erroneous. Here, Williams points out inconsistencies in the testimony of W.E. and contends that her testimony seemed to be coached. Questions of credibility and inconsistencies in testimony are matters which are for the jury to resolve. Robert v. State, 821 So.2d 812(¶20) (Miss.2002).

¶ 15. We find that the trial court did not abuse its discretion in finding that the child was competent to testify.

¶ 16. Having found no error, we affirm the judgment and sentence.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF ADAMS COUNTY OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THE APPEAL ARE ASSESSED TO ADAMS COUNTY.

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

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


author: SOUTHWICK, P. J.,

text:
    Geneva KELLEY and Barry Kelley, Appellants, v. GRENADA COUNTY, Mississippi, Appellee.
    No. 2002-CA-01265-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2003.

      John R. Reeves, Christopher Paul Palmer, attorneys for appellant.
    John S. Hill, Tupelo, Holly Stubblefield Mathews, attorneys for Appellee.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   SOUTHWICK, P. J.,

for the Court.

¶ 1. Barry and Geneva Kelley filed suit against Grenada County for injuries arising from a collision with a vehicle operated by a sheriffs deputy. The circuit court found that the county was entitled to an immunity for what was only negligent conduct by the deputy. Summary judgment was granted. On appeal, the Kelleys argue that a fact question existed that the officer may have acted in reckless disregard of their safety and was not merely negligent. We find no error and affirm.

STATEMENT OF FACTS

¶ 2. In February 2000, at approximately 7:00 P.M., Grenada County Sheriffs Deputy Jimmy Miller was stationed in a parking lot on Highway 7. He received a call from a fellow officer requesting assistance because four people had just stolen a vehicle. Deputy Miller left the parking lot and began driving south on Highway 7. He did not use his siren because of a concern that other vehicles would stop abruptly and cause an accident. Miller recalls reaching to turn on his flashing lights just before the collision occurred. He was not speeding as he responded to this call.

¶ 3. Mrs. Kelley was in her van in a nearby Texaco gas station parking lot also on Highway 7. The lanes of the highway were divided by double solid yellow lines. She was exiting the station, preparing to cross over the highway in order to make a left turn and proceed north on the highway. There was no traffic approaching from Mrs. Kelley’s right side. Coming from her left was a pickup that was turning into the station. Mrs. Kelley pulled in front of the truck to cross the highway.

¶ 4. Deputy Miller was close behind the truck that was turning into the station. In order to avoid the truck as it was turning, Deputy Miller crossed over the center double solid lines to steer around it. At the same time, Mrs. Kelley was turning onto the highway. Her van and Deputy Miller’s vehicle collided. Mr. Kelley arrived at the scene of the accident within minutes of the collision.

¶ 5. Mrs. Kelley filed suit under the Mississippi Tort Claims Act against the county for her injuries. Mr. Kelley joined in the suit, claiming loss of consortium. The circuit court granted the county’s motion for summary judgment based on immunity. From this decision, the Kelleys appeal.

DISCUSSION

1. Reckless disregard

¶ 6. A summary judgment is a useful mechanism to determine if there are any fact issues for which a trial is needed or only legal issues for which a trial would be needless. The trial court in granting a summary judgment makes a decision based completely on legal considerations, including that there are no disputes of material fact. On appeal, we review the same materials as did the trial judge and apply the same standard. Aetna Cas. and Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996). We decide whether there is a genuine issue of a material fact, and if not, whether the legal conclusions drawn from the undisputed facts are correct. Townsend v. Estate of Gilbert, 616 So.2d 333, 335 (Miss.1993). In order to be material, a factual issue must be “outcome determinative .... ” Simmons v. Thompson Mach. of Miss., 631 So.2d 798, 801 (Miss.1994).

¶ 7. The Mississippi Tort Claims Act provides the exclusive civil remedy against a governmental entity or its employees for torts. Miss.Code Ann. § 11-46-7(1) (Rev.2002). There are immunities that apply, including the following relevant for today’s appeal:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury;

Miss.Code Ann. § 11-46-9(1)(c) (Rev.2002). The governmental actor here was a law enforcement officer. In order for liability to exist, there must be reckless and not merely negligent conduct.

¶ 8. There was discovery in the case on the question. Officer Miller and Mrs. Kelley each gave a deposition. Mr. and Mrs. Kelley executed affidavits regarding the characteristics of the highway at that location. Also submitted were a photograph of Mrs. Kelley’s van and the police officer’s report of the collision.

¶ 9. The Kelleys argue that there was a genuine dispute as to whether Deputy Miller acted with reckless disregard for the safety of Mrs. Kelley. They claim that he was reckless when he did not sound his siren or flash his lights to alert her of his presence. They also claim he was reckless since he steered around the truck turning into the Texaco station rather than coming to a stop. The county argues that the deputy was merely negligent.

¶ 10. Competing arguments regarding what legal standard better categorizes certain conduct do not create a dispute of fact. There is no evidence disputing Deputy Miller’s statement that he was responding to a call for assistance from a fellow officer. He was acting in the scope of his duties as a deputy when the collision with Mrs. Kelley occurred. There is no evidence that Deputy Miller was speeding when the collision occurred. He testified under oath that he was not exceeding the speed limit of 55 miles per hour. Mrs. Kelley never claimed Deputy Miller was speeding. She testified that she never even saw him. Her view was obscured by the truck turning into the station.

¶ 11. Based on these undisputed facts, first the trial court and now this appellate one is to determine whether there is an issue to be tried on whether reckless disregard could be attached as a label to Miller’s actions.

¶ 12. Reckless disregard is a high standard. While reckless disregard includes gross negligence, it is a higher standard than gross negligence by which to judge the conduct of officers. City of Jackson v. Lipsey, 834 So.2d 687, 691-92 (Miss.2003). The court’s reasoning was that “disregard” of the safety of others is at least negligence if not gross negligence. By placing the word “reckless” before “disregard,” the legislature was elevating the standard from simply a disregarding of the safety of others. Id. at 692. Law enforcement officers are immune from negligence claims. For an officer to be found reckless, the actions must be “wanton or willful.” Id. This kind of conduct is only one step removed from specific intent. Turner v. City of Ruleville, 735 So.2d 226, 229-30 (Miss.1999). “Our case law indicates ‘reckless disregard’ embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act.” Id. at 230.

¶ 13. We review precedents in which the immunity did not apply in order to understand the nature of the required conduct. In one appeal, the Supreme Court considered a police officer who was speeding without using his siren or flashing his lights when he collided with another vehicle. City of Jackson v. Perry, 764 So.2d 373, 375 (Miss.2000). This officer was not responding to an emergency call but rather going to meet others for dinner. Id. The Supreme Court held the officer’s conduct “showed a reckless disregard of the safety and well-being of others.” Id. at 378.

¶ 14. In another suit, a deputy sheriff backed his car up an incline to the entrance of the county jail in a non-emergency situation. Maye v. Pearl River County, 758 So.2d 391, 392 (Miss.1999). At the same time, another car was turning into the parking lot and the two cars collided. Id. Although he checked his mirrors before backing up his car, the deputy sheriff testified he could not see the road from the parking lot because his view was obstructed. Id. This was found to be a conscious indifference to the consequences of his actions, and those actions rose above “simple negligence to the level of reckless disregard of the safety and well-being of others.” Id. at 395.

¶ 15. We review one final precedent in which immunity was not obtained. A police officer responded to an auto burglary although he was not the primary nor secondary unit. Lipsey, 834 So.2d at 692. The judge found that the officer had not turned on his flashing lights or sounded his siren; the officer admitted to speeding. Id. The Court found that the officer was acting in reckless disregard for the safety of others. Id. at 693.

¶ 16. Of the precedents in which immunity was found, the one that is most analogous here is Maldonado v. Kelly, 768 So.2d 906 (Miss.2000). A deputy was driving a police vehicle when he collided with a citizen. At the time of the accident, a water tower partially blocked the deputy’s view at an intersection, but the officer crossed into the intersection anyway and hit another vehicle. The Supreme Court held that the county and officer were entitled to immunity. The needed recklessness was described this way:

These terms apply to conduct which is still merely negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is treated in many respects as if harm was intended. The usual meaning assigned to [the] terms is that the actor has intentionally done an act of unreasonable character in reckless disregard of the risk known to him, or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow.

Maldonado, 768 So.2d at 910 (quoting Orthopedic & Sports Injury Clinic v. Wang Labs., Inc., 922 F.2d 220, 224 n. 3 (5th Cir.1991)).

¶ 17. The court characterized suits in which no immunity was found as having demonstrated an appreciation by the law enforcement official of the risk of injury and also an intentional disregard of this risk. Maldonado, 768 So.2d at 910-11. The officer in Maldonado did not have this same appreciation of and indifference to the risk. Id. That applies to Miller’s actions as well.

¶ 18. Deputy Miller was not speeding and was responding to a call from a fellow officer. He did not sound his siren because he did not want there to be any accidents resulting from motorists coming to an abrupt stop. Though failing to anticipate that another vehicle might be pulling out from the blind spot in front of the truck in front of him, Miller’s decision to steer around that turning truck did not exhibit a wilful or wanton disregard for the safety of others. It showed negligence but not virtually a “willingness that harm should follow.”

¶ 19. The grant of summary judgment is affirmed.

¶ 20. THE JUDGMENT OF THE GRENADA COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS ARE ASSESSED TO THE APPELLANTS.

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


author: SOUTHWICK, P.J.,

text:
    Zachary L. HARRINGTON a/k/a Zackary Lashawn Harrington, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01095-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2003.

      William F. Travis, Southaven, attorney for appellant.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
    Before SOUTHWICK, P.J., MYERS, and CHANDLER, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. Zachary Harrington was found guilty by a circuit court jury of conspiracy to commit robbery with a deadly weapon, robbery with a deadly weapon, and manslaughter. He appeals arguing that the evidence at trial was insufficient to prove guilt beyond a reasonable doubt, and the court erred when it refused to grant a jury instruction for a lesser-included offense of robbery. We affirm.

STATEMENT OF FACTS

¶2. Harrington was friends with Eric Brandon Drake and Manrese Long. Drake was acquainted with the deceased, Jackie Harwell. Long rented a room from Drake’s family. Drake lived with him, and Harrington lived nearby. On February 5, 1999, several calls were made from the Drake residence to Harwell’s pager. Har-well also made several calls to the Drake residence that day.

¶ 3. On this night, Harrington and Long were together in a gazebo near their residences in Memphis, Tennessee. Harrington was carrying his stepfather’s loaded pistol. A Lexus automobile arrived nearby and the car’s lights were then turned off. Harrington and Long approached the car. Drake was in the passenger’s seat and Harwell was in the driver’s seat. Long and Harrington got into the car and Long began driving. He drove into Mississippi and stopped along the road for a restroom break. All of the occupants exited the vehicle. Long pointed a gun at Harwell, then reached into Harwell’s pockets and took approximately $340. Drake then shot Harwell in the head. Harrington, Long, and Drake left Harwell in the middle of the road. They returned to Memphis in Harwell’s Lexus. The three men split the money, taken from Harwell.

¶ 4. Harwell’s lifeless body was discovered lying in the road the next morning by law enforcement officers. An autopsy was performed and it was determined that he died from a single gunshot wound to the side of his head. Officers retrieved the gun from Harrington’s stepfather. A crime lab expert testified that the gun matched the easing found at the scene and also the projectile removed from Harwell’s body.

¶ 5. Harrington gave a statement admitting that he was with Long that night. He acknowledged that he was carrying his stepfather’s gun, but said it was for his own protection. When the Lexus arrived, Harrington stated that both he and Long recognized Drake and “hopped in the car.” He stated that Harwell saw the gun he was carrying when he got into the car. Then, they drove to Mississippi, stopped the car and everyone got out. He alleged that Drake shot Harwell and Long took money from him. He admitted that the three then split the money. He, Drake and Long allegedly decided to rob Harwell “before the man was shot after he got out of the cai’.” At trial, he testified that he pleaded with Drake not to kill Harwell and only took the money under duress. He testified that he was not part of the conspiracy.

¶ 6. At trial, Long testified for the State. His story was that he and Harrington walked to the Lexus. Harrington ordered the occupants to “stick them up.” He testified that they were just staging a robbery without Harwell’s knowledge. They pretended to rob Drake, who was in the car with Harwell. Then, they all got into the car. Harrington’s gun was displayed at some point prior to their reaching Mississippi. Long testified that they “were supposed to rob [Harwell] and take his car.” Once they returned to Memphis, they tried to remove fingerprints from the car. There were two sets of car keys and Long took one set and Harrington took the other.

¶ 7. Harrington was tried and convicted of conspiracy to commit robbery with a deadly weapon, robbery with a deadly weapon, and manslaughter. This is his appeal.

DISCUSSION

1. Sufficiency of Evidence

¶ 8. Harrington claims that there was not sufficient evidence presented at trial to convict him. When the sufficiency of the evidence is challenged, all of the evidence is considered in the light most consistent with the verdict. The prosecution is given the benefit of all inferences that may be drawn from the evidence presented. McFee v. State, 511 So.2d 130, 133-34 (Miss.1987). The verdict will not be reversed unless the evidence with respect to one or more of the elements of the offense charged reveals that no reasonable juror could have determine the defendant was guilty. Alexander v. State, 759 So.2d 411, 421(¶ 36) (Miss.2000).

¶ 9. Harrington asserts that the prosecution failed to prove that he was involved in a conspiracy with Long and Drake. He claims that the verdict finding him guilty of robbery with a deadly weapon and manslaughter depended on the existence of a conspiracy. Conspiracy requires that two or more persons agree to commit a crime. Miss.Code Ann. § 97-1-1 (Rev.2000). Each person involved in the conspiracy must know that “they are entering into a common plan and knowingly intend to further its common purpose.” Mitchell v. State, 572 So.2d 865, 867 (Miss.1990). Circumstantial evidence may prove the existence of and membership in a conspiracy. Harris v. State, 731 So.2d 1125, 1132(¶ 42) (Miss.1999).

¶ 10. In evaluating the evidence, we find that Harrington was a friend both of Long and Drake. He lived near them. Drake knew Harwell. Harrington was with Long on the night of the crime and was carrying a loaded gun. Drake and Harwell later arrived at this same location and Harrington and Long entered the car. Long took Harwell’s money at gunpoint and it was divided equally. Drake shot and killed Harwell with the gun Harrington brought with him that night. Long testified that they had planned to stage a robbery of Drake, rob Harwell, and then take his car. In Harrington’s own statement, he admits that they decided to rob Harwell.

¶ 11. Based on all the evidence presented at trial and the reasonable inferences arising from it, the jury could determine that there had been a conspiracy between these three men.

2. Jury Instructions

¶ 12. Harrington claims that the circuit court erred when it failed to include jury Instruction D-ll on the lesser-included offense of robbery. This was an instruction to allow a guilty verdict for simple robbery, an offense that does not require the exhibition of a deadly weapon. Miss.Code Ann. § 97-3-73 (Rev.2000). The jury was only given an instruction for robbery with a deadly weapon.

¶ 13. Harrington claims that the prosecution failed to show that he exhibited the gun to Harwell and it was therefore unfair to instruct the jury only on armed robbery rather than also on simple robbery. Harrington relies on a case that found that the defendant should have been convicted for simple robbery rather than robbery with a deadly weapon. Gibby v. State, 744 So.2d 244 (Miss.1999). In Gibby, no one involved was ever shown to have possessed a gun. The evidence was that a “hard object” had been pressed into the robbery victim’s ribs. Id. at 245. That is not our case.

¶ 14. Participation in an armed robbery is sufficient to make one a principal in the crime regardless of whether that participant was the person holding the weapon. Moore v. State, 493 So.2d 1295, 1298-99 (Miss.1986). A gun was used in the robbery, and it was even Harrington’s gun. There is no factual basis to support an instruction that a robbery without a deadly weapon occurred. Even if Harrington was not the person who actually was holding the weapon, he participated in the robbery.

¶ 15. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I CONSPIRACY TO COMMIT ROBBERY WITH A DEADLY WEAPON AND SENTENCE OF FIVE YEARS TO RUN CONCURRENTLY TO COUNT III; COUNT III ROBBERY WITH A DEADLY WEAPON AND SENTENCE OF FIFTEEN YEARS TO RUN CONSECUTIVELY TO COUNT IV; AND COUNT IV MANSLAUGHTER AND SENTENCE OF TWENTY YEARS, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND FINE OF $1,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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


author: BRIDGES, J.,

text:
    MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Troy S. PICKENS, Appellee.
    No. 2002-WC-00754-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2003.

      Robert P. Thompson, Ridgeland, Lyn Butler Dodson, attorneys for appellant.
    William 0. Rutledge, New Albany, attorney for appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   BRIDGES, J.,

for the Court.

¶ 1. On October 26, 2000, an administrative judge, held that Troy Pickens proved that he sustained a work related injury. The administrative judge relied on the medical expert testimony of Dr. Thomas Shands and Dr. Kenneth Bennett as well as the lay testimony of Pickens and Pick-ens’s supervisor, Lt. Col. Jim Boxx. Further, the administrative judge decided that Pickens’s benefits for permanent disability should be apportioned by 50% in accordance with Mississippi Code Annotated section 71-3-7 (Rev.2000), as at least 50% of his injury was concluded to be due to non-work related factors. The Mississippi Department of Public Safety, Pickens’s employer, petitioned the Full Commission of the Workers’ Compensation Commission for review of the decision made by the administrative judge. After a hearing, the Full Commission affirmed the administrative judge’s decision. The Mississippi Department of Public Safety appealed to the Circuit Court of Union County and after oral arguments, the circuit court affirmed the order of the Full Commission, holding that its decision was based on substantial evidence. While the appellant does not separate the issues in his brief, the appel-lee does so. We find that it is easier to understand the issues by separating them, therefore, we follow the appellee’s form in his brief.

STATEMENT OF THE ISSUES

I. WHETHER THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION HAD A SUBSTANTIAL BASIS FOR ITS FINDING THAT TROY PICKENS IS ENTITLED TO WORKERS’ COMPENSATION BENEFITS IN THE AMOUNT CALCULATED BY THE FULL COMMISSION.

A. WHETHER THE COMMISSION ERRED IN APPORTIONING PICK-ENS’S BENEFITS BY FIFTY PERCENT.

B. WHETHER THE COMMISSION ERRED IN REFUSING TO COUNT PICKENS’S RETIREMENT INCOME IN THE WAGE-EARNING CAPACITY ANALYSIS.

FACTS

¶ 2. Troy Pickens began work with the Mississippi Highway Patrol in 1973 as a trooper. In 1987, Pickens accepted a position as an investigator in the Criminal Bureau which he held until 1993 when he accepted a promotion to Lieutenant Senior Investigator, with supervisory responsibilities over four men.

¶ 3. In additional to general supervisory tasks, Pickens, as Lieutenant Senior Investigator, was responsible for a variety of investigative tasks such as the collection of his men’s hours, reviewing case reports, organizing salvage vehicle inspection, answering complaints, organizing court appearances for those in his charge, coordinating with prosecuting attorneys, and initiating his own cases. Additionally, Pickens was responsible for nine Northeastern Mississippi counties. Pickens testified, without contradiction, that he worked on average, 12-14 hours a day, leading up to 90-100 hours per week. Pickens also wore a pager, was continually on call 24 hours a day, and was in fact frequently paged during all hours of the day and night. Pickens’s supervisor admitted that Pickens’s job often subjected him to high level of stress. In an attempt to reduce his stress levels, Pickens often requested more manpower, but every time, these requests were denied.

¶ 4. In or around January or February of 1995, Pickens began and ultimately completed a rigorous training program at the United States Marine Base in Quantico, Virginia. During this time, Pickens was often subjected to physical tests as well as blood tests, none of which revealed high blood pressure, diabetes, or cholesterol problems.

¶ 5. On March 30,1996, Pickens suffered a myocardial infarction episode. After medical examinations, he was diagnosed with a 90% blockage to a heart artery, and his under went a bypass operation on April 3, 1996. After his surgery, Pickens tried to return to work, however, later that same year, in November, he suffered a heart attack. Based on conversations with Pickens, his physicians advised him to either change to a less stressful job or die. Taking the advise of his physicians, Pick-ens retired from the Mississippi Highway Patrol on April 30, 1997. At the time of his retirement, Pickens earned an annual salary of $42,000, or approximately $800 per week. After his retirement, Pickens accepted a low stress position as an investigator with the Union County Sheriffs Department and earns an annual salary of approximately $24,000, or $460 per week.

ANALYSIS

I. WHETHER THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION HAD A SUBSTANTIAL BASIS FOR ITS FINDING THAT TROY PICKENS IS ENTITLED TO WORKERS’ COMPENSATION BENEFITS IN THE AMOUNT CALCULATED BY THE FULL COMMISSION.

¶ 6. In this appeal by the employer, the sole issue is whether there was substantial credible evidence to support the Workers’ Compensation Commission’s decision. “The Commission is the trier and finder of facts in a compensation claim. Judicial review is to focus on whether the findings of fact are supported by substantial evidence and whether the proper legal standard was applied. Regardless of what the circuit court concluded, if the case is further appealed here, our task is again to review the Commission’s decision for its validity.” Redman Homes, Inc. v. Bennington, 749 So.2d 1201, 1202-03(¶ 6) (Miss.1999).

¶ 7. With our standard of review settled, we examine the record. Pickens testified that he had many responsibilities relative to his former job and that he worked twenty-four hours a day, seven days a week. He testified to the Commission that Dr. Thomas Andrew Shands was his primary treating physician for the resolution of his heart related injuries and/or disease. He admitted that he never complained to his superior, Lt. Colonel Boxx, regarding the stress that he felt he was suffering on the job. Pickens testified that he smoked a pack to one and a half packs of cigarettes per day in the past. Pickens is currently a diabetic and suffers from high blood pressure and has a family history of heart disease. As to case reports, confidential in nature but relative to the March 1996 activities of Pickens, it is noted that in the five months preceding his onset of heart disease, Pickens was a case agent and worked on approximately four cases. Pickens also offered the testimony of his wife, Linda Pickens, and it was stipulated that this would be cumulative and corpora-tive in nature to Pickens testimony in all regards.

¶ 8. Lt. Col. Jim Boxx, the Director of Criminal Investigations for the Mississippi Highway Patrol, also testified before the administrative judge. He testified that in the six months prior to Pickens alleged initial injury, which was reported to have occurred on March 31, 1996, there were approximately sixty-one active files, five of which Pickens either had supervision and/or assistance in, and of the remaining fifty-six there were only six cases where Pickens’s name was even mentioned.

¶ 9. The deposition of Dr. Thomas Andrew Shands, a board certified internal and geriatric medicine specialist located in New Albany, Mississippi, was entered into evidence at the hearing. He noted that he reviewed all records of Pickens, beginning with his onset of heart-related problems and/or disease which occurred on March 31, 1996. He also reviewed the records of the Baptist Hospital in New Albany, the hospital in Tupelo and the medical records of Drs. Boland, Woody and Creekmore. Drs. Boland and Woody were Pickens treating cardiologists prior to his presentation to Dr. Shands. Dr. Shands stated that Pickens “has been under a significant amount of stress with this job for a long period of time in his capacity, and that was probably the thing that was maybe different from his history than maybe some of the other patients I see with similar risk factors. He had an unusual amount of history of stress in his job.” Dr. Shands opined that stress was a major risk factor for this individual because of the unusual degree of stress lasting over a long period of time. Dr. Shands also opined that to a reasonable degree of medical certainty, there was a causal connection between Pickens work, his heart-related problems and his job as an investigator with the Mississippi Highway Patrol that put him at an increased risk for such aliments. Also, to a reasonable degree of certainty and compatible with the latest scientific material available on the subject, Dr. Shands opined that stress could be and often is a major factor in heart disease and/or heart attacks.

¶ 10. Dr. Shands went on to explain that his first presentation with Pickens was on April 18, 1998, approximately two years after the March 1996 episode. A second and third visit occurred on May 15, 1998 and June 23, 1998, respectively, and Dr. Shands reported that Pickens was stable and his medications were monitored. However, on August 28, 1998, Pickens complained about chest pains and reported difficulty at work. Stress was discussed at that time. Pickens was then working for the Union County Sheriffs Department and retirement from that position was discussed.

¶ 11. Dr. Shands also admitted that obesity on the part of Pickens was an additional detrimental factor. In 1996, Dr. Shands noted that Pickens did not have a heart attack prior to the procedure but came close to a myocardial infarction. As regards to stress as a factor, he stated, “I think, the thing that really is bad for him, in regards to the stress, was not only the stress itself as an independent risk factor, but the fact ... and as you mentioned, he has the other risk factors, but the effect that his stressful lifestyle had on his other risk factors.” He concluded by relating that the risk factors other than the stress were indeed significant to one degree or another, but that he could not opine as to the percentage attached to the stress factor alone when juxtaposed with the other factors present.

¶ 12. Along with Dr. Shands, the deposition of Dr. Kenneth Bennett, a board certified cardiologist, was introduced at the hearing. Dr. Bennett stated that he had never personally met Pickens nor interviewed and/or examined him. He reviewed Pickens’s deposition and the records relative to Dr. Shands treatment of Pickens. He felt that Dr. Shands was generally accurate in what he said and his narrative given. Dr. Bennett testified that “Pickens has all of the major risk factors associated with and known for contributing to the development of atherosclerotic heart disease.”

¶ 13. He also agreed that he was not Pickens’s treating physician in any manner but felt that stress as a factor here would be a minimal contributor only, and he could not opine as to the percentage that would entail. However, he concluded that stress can be a major contributing factor in coronary disease in some cases and as to Pickens, he can’t eliminate stress as a factor but in his opinion stress was a minor one.

¶ 14. Also introduced into evidence was the magazine The Mississippi Trooper Magazine, issue of Spring 1999. This issue had the Mississippi Highway Patrol’s SWAT team on its’ cover, and contained the article “Mental Stress, Is It a Significant Coronary Risk Factor?” The article noted that in situations where individuals had significantly lessened their everyday mental stress levels, researchers found a thirty-nine percent to fifty percent reduction in second heart attacks and death. It also noted that the reasons for stress being a factor in coronary disease and the-neurochemical changes associated with stress and depression accelerate the formation of the plaque that narrows coronary arteries. These same chemical abnormalities cause more blood vessel spasm on top of that plaque, and then accelerate clotting to finish closure of the heart arteries., The same stress chemicals also increase likelihood of normal heart rhythms.

¶ 15. In reference to the article, Dr. Shands noted that Pickens was not on the SWAT team as depicted on the front photo. However, he thought that stress maybe more about how a person reacts to the situation than actually the job itself. Basically, he was describing Pickens’s situation as an overall global type stress. Dr. Bennett indicated that he had reviewed the article in question and felt it was a fairly accurate general article and agreed that the statement “stress reduction is often the most neglective of preventative cardiology programs both by the patient and by the physician” is probably true. He also testified that stress is extremely difficult to quantify.

¶ 16. In her opinion and order, the administrative judge considered the above facts, including all testimony, lay and medical, and based upon a preponderance of the evidence found that Pickens sustained a work-related injury.

¶ 17. In accordance with the aforementioned standard of review, this Court finds that there was substantial credible evidence to support the decision of the circuit court in affirming the Commission, which adopted the findings of the administrative judge. Although this Court, as well as the trial judge, feels that if we were the administrative judge, we might have found this case differently, the Mississippi Workers’ Compensation Commission is the finder of facts in this matter, not this Court. Therefore, we find this issue without merit.

A. WHETHER THE COMMISSION ERRED IN APPORTIONING PICK-ENS’S BENEFITS BY FIFTY PERCENT.

B. WHETHER THE COMMISSION ERRED IN REFUSING TO COUNT PICKENS’S RETIREMENT INCOME IN THE WAGE-EARNING CAPACITY ANALYSIS.

¶ 18. The Mississippi Department of Public Safety asserts that if this Court should find on the job stress was a factor in Pickens’s heart attack, stress certainly cannot be held to be 50% responsible for Pickens’ heart attack in the face of the major risk factors Pickens was not addressing. They also claim that if this Court should affirm the finding that Pick-ens is entitled to benefits, then this Court should direct the employee’s retirement benefits be included in the computation of Pickens’s average weekly wage. However, in their arguments, they failed to cite any authority in support of their contention. An assignment of error that is unsupported by any legal authority need not be considered by the Court. Jones v. State, 481 So.2d 798, 804 (Miss.1985). Therefore, this issues are procedurally barred.

¶ 19. THE JUDGMENT OF THE UNION COUNTY CIRCUIT COURT AFFIRMING THE DECISION OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . .According to medical literature, the five risk factors are as follows: smoking, family history, high blood pressure, diabetes, and High or abnormal cholesterol or lipids. After undergoing coronary artery bypass surgery at the time of his first onset, Pickens was presented with the multiple risk factors and was found to have the following: he was a heavy smoker in the past, a diabetic, hypertensive, and had a family history of heart disease.


author: MYERS, J.,

text:
    Mickeal SWINDOLL a/k/a Michael Swindoll, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-01897-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2003.

      Mickeal Swindoll, appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorneys for appellee.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   MYERS, J.,

for the Court.

¶ 1. Mickeal Swindoll pled guilty to the charges of sale, transfer, distribution or delivery of methamphetamine and commercial burglary in the Circuit Court of Webster County, Mississippi. His subsequent petition for post-conviction relief was denied. Aggrieved by that result, Swindoll filed this timely pro se appeal raising the following issues:

I. WHETHER HIS CONFESSION WAS VOLUNTARY.
II. WHETHER HIS GUILTY PLEA WAS MADE KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY.
III. WHETHER HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

STATEMENT OF FACTS

¶ 2. On January 16, 2001, Mickeal Swin-doll pled guilty to the sale, transfer, distribution or delivery of methamphetamine and to commercial burglary. On the first offense, Swindoll was sentenced to a term of eighteen years with nine of those being suspended. He was also required to pay $5,000 in court costs. The payment of those costs were suspended for five years. On the second offense, Swindoll was sentenced to a term of seven years and ordered to pay $802.66 in restitution.

¶ 3. On November 4, 2002, Swindoll filed a motion to vacate and set aside his conviction and sentence along with a writ of error coram nobis in the Circuit Court of Webster County pursuant to the Mississippi Uniform Post-Conviction Relief Act. Miss.Code Ann. § 99-39-1 (Rev.2000). On October 15, 2002, the lower court entered an order denying Swindoll’s request for post-conviction relief holding the motion to be without merit. Finding no error, we affirm.

LEGAL ANALYSIS

I. WHETHER HIS CONFESSION WAS VOLUNTARY.

¶ 4. Swindoll argues that his confession was coerced. In support of this argument, Swindoll claims that he was not advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In addition, he claims that the police acted illegally in obtaining his statements by using psychological plays, threats, promises and physical violence. More specifically, Swindoll claims that the police told him “that if he didn’t write a statement at that moment they would make sure he got thirty years for the [mjethamphetamine charge.” Swindoll claims that these tactics, combined with many hours of questioning, enabled the police to overcome his will rendering any admissions he made involuntary. Therefore, Swindoll argues that his confession should be inadmissible.

¶ 5. The State argues that Swindoll’s plea of guilty waived any trial rights, such as the right to exclude a coerced confession. Furthermore, the State argues that the appropriate remedy for a coerced confession is its exclusion from the evidence. Since the admission was never admitted into evidence, the State argues that no error has been committed.

¶ 6. In Mississippi, we have consistently “recognized that a valid guilty plea operates as a waiver of all non-jurisdietional rights or defects which are incident to trial.” Anderson v. State, 577 So.2d 390, 391 (Miss.1991). Included in these rights are “those secured by the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States, as well as those comparable rights secured by Sections 14 and 26, Article 3, of the Mississippi Constitution of 1890.” Sanders v. State, 440 So.2d 278, 283 (Miss.1983).

¶ 7. If Swindoll entered a valid guilty plea, then he explicitly waived any right to suppress the alleged coerced confession. Since Swindoll has also raised the issue as to whether his guilty plea was indeed valid, we find that any ruling as to the voluntariness of Swindoll’s confession, or the waiver thereof, necessarily depends on our holding as to the validity of the guilty plea. Therefore, we now turn our attention to a discussion of Swindoll’s guilty plea.

II. WHETHER HIS GUILTY PLEA WAS MADE KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY.

¶ 8. Swindoll argues that his plea was not entered knowingly, intelligently and voluntarily. He claims that his attorney misled him as to his sentence and as to any possible defenses. Swindoll claims that he pled guilty under the mistaken belief that he could be subject to a sentence of thirty years. Swindoll further argues that he did not understand the law at that time and had no knowledge whatsoever that the action of the police could have changed the proceedings in the case. In other words, Swindoll argues that he would have not pled guilty if Ball would have advised him that his confession would be inadmissible against him if, in fact, it was coerced.

¶ 9. Our standard of review for reviewing the voluntariness of a guilty plea is well settled. “This [c]ourt will not set aside findings of a trial court unless such findings are clearly erroneous.” Weatherspoon v. State, 736 So.2d 419, 421(¶ 2) (Miss.Ct.App.1999) (quoting Schmitt v. State, 560 So.2d 148, 151 (Miss.1990)).

¶ 10. A plea of guilty is not binding upon a criminal defendant unless it is entered voluntarily and intelligently. Myers v. State, 583 So.2d 174, 177 (Miss.1991). A plea is deemed “voluntary and intelligent” only where the defendant is advised concerning the nature of the charge against him and the consequences of the plea. Wilson v. State, 577 So.2d 394, 396-97 (Miss.1991). In addition, the court must examine the entire record in determining whether the plea is made knowingly, intelligently and voluntarily. Weatherspoon, 736 So.2d at 421(¶ 5). However, the burden of establishing a claim for an involuntary guilty plea is on the inmate. Green v. State, 802 So.2d 181, 184 (¶ 19) (Miss.Ct.App.2001).

¶ 11. The record does not support Swindoll’s claim that his guilty plea was involuntary. As noted above, Swindoll argues that his attorney misadvised him by stating that he could receive a maximum of thirty years on the methamphetamine charge. In the seventh paragraph of Swindoll’s petition to enter a guilty plea, Swindoll confirms that the maximum sentence for the methamphetamine charge is thirty years. SwindolPs attorney did not misadvise him. That is the maximum sentence for the charge. In fact, SwindolPs attorney was obligated to disclose the maximum sentence to him.

¶ 12. Swindoll also alleges that his attorney failed to notify him of all possible defenses. Namely, the right to have an involuntary confession suppressed. In the fourth paragraph of his petition to enter a guilty plea, Swindoll concedes that his attorney “has counseled and advised [him] on the nature of each charge, on any and all lesser-included charges, and on all possible defenses that [he] might have in the case.”

¶ 13. Moreover, at the guilty plea hearing, the trial judge completed a very detailed inquiry as to the voluntariness of SwindolPs plea by asking Swindoll personally whether he understood that certain rights under the constitution would be waived by entering a plea of guilty. Swin-doll then verbally answered in the affirmative. Swindoll points to a portion of the hearing in his brief arguing that he did not agree with everything the trial judge asked him. The relevant portions are as follows:

By the Court: Are the things contained in the petition true?
By Mr. Swindoll: Well, actually no, sir. But I can’t beat it. They have evidence against me so.

¶ 14. Swindoll fails to mention, however, that the trial court immediately went on to state, “Okay. Have a seat over there Mr. Swindoll. The [c]ourt refuses to take his plea.” Thereafter, Swindoll and his attorney left the courtroom, but upon there return, proceedings continued as follows:

By Mr. Ball: Your Honor, I think there may have been some confusion. Mr. Swindoll had indicated to me at one point that as far as the definition of sale, he had some dispute about whether he could actually, whether he actually sold the crystal methamphetamine. He does, however, admit that he distributed it. He said when you were first reading the charge, you had indicated that it was the sale of methamphetamine. He admits that he was involved in the transfer or the distribution of the crystal methamphetamine. And based on the fact that the court had just said sale, he indicated that no, he did not think he was guilty of that.
By the Court: Is that correct, Mr. Swin-doll?
By Mr. Swindoll: Yes, sir.
By the Court: Okay. And the charge is sale, transfer, distribution or delivery of methamphetamine, not just the sale.
By Mr. Ball: Correct. Yes, sir. So we would—
By the Court: —I inadvertently shortened it. Okay, based on that statement then, are the statements in your petition to enter a plea of guilty true?
By Mr. Swindoll: Yes, sir.
By the Court: Did you sign the petition?
By Mr. Swindoll: Yes, sir.

¶ 15. The trial judge took every precaution in assuring that SwindolPs plea was indeed voluntarily. There is ample support in the petition and in the hearing transcript. It can hardly be said that the trial judge’s entry of SwindolPs guilty plea was clearly erroneous. Therefore, we hold that SwindolPs guilty plea was made knowingly, intelligently and voluntarily. As a result, Swindoll waived any rights regarding the alleged coerced confession.

III. WHETHER HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 16. Swindoll finally argues that he was denied effective assistance of counsel. Specifically, Swindoll alleges that his attorney failed to investigate his claims of police misconduct. Swindoll argues that his attorney refused to file a motion to suppress his confession. In addition, Swindoll argues that his attorney told him not to mention anything about the alleged police misconduct at the guilty plea hearing.

¶ 17. The standard in determining ineffective counsel is well settled law. “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result -would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Gilliard v. State, 462 So.2d 710, 714 (Miss.1985) (quoting Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Furthermore, trial counsel is presumed to be competent. Brooks v. State, 573 So.2d 1350, 1353 (Miss.1990).

¶ 18. In paragraph twelve of the petition to enter a plea of guilty, Swindoll confirmed “that [his] lawyer has done all that anyone could do to counsel and assist [him].” In that same paragraph, Swindoll also confirmed that he was “satisfied with the advice and help he has given me.” Swindoll’s attorney also signed an affidavit stating that Swindoll knew the legal consequences of his plea and that Swindoll agreed that the plea was his best course of action. Moreover, at the plea hearing, the following dialogue took place between Swindoll and the trial court.

By the Court: Have you discussed both of the charges with Mr. Ball?
By Mr. Swindoll: Yes, sir.
By the Court: Did he tell you what the State would have to prove in order to convict you of either charge?
By Mr. Swindoll: Yes, sir.
By the Court: Did he discuss with you possible defenses you might have?
By Mr. Swindoll: Yes, sir.
By the Court: Are you satisfied with his representation of you?
By Mr. Swindoll: Yes, sir.
By the Court: After your discussions with him, is it your own decision to enter pleas of guilty to each charge?
By Mr. Swindoll: Yes, sir.
By the Court: Has anybody threatened you, coerced you or used any physical violence against you to get you to enter a plea of guilty to either charge?
By Mr. Swindoll: No, sir.

¶ 19. The petition and the hearing transcript are abundantly clear. The trial judge asked Swindoll very particular questions regarding Ball’s representation. Swindoll presented no testimony that Ball had misadvised him as to the maximum sentence on the methamphetamine charge or as to the possibility that the confession was coerced. The trial court judge specifically asked Swindoll if he was satisfied with Ball’s representation and Swindoll answered his question in the affirmative. He mentioned nothing about Ball’s alleged failure to investigate the validity of his confession. In addition, he mentioned nothing about .his claim that Ball had asked him to not mention the alleged police misconduct during the plea hearing. Therefore, in light of the facts and record of this case, we hold that Swindoll did not receive ineffective assistance of counsel.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF WEBSTER COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO WEBSTER COUNTY.

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


text:
    Timothy A. CHRISTIAN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KM-01592-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2003.

      A.E. (Gene) Harlow, Grenada, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   MYERS, J.,

for the Court.

¶ 1. Timothy A. Christian was convicted of driving under the influence (DUI)-first offense in the Justice Court of Grenada County, Mississippi. He appealed this conviction to the Grenada County Circuit Court which likewise found him guilty of the DUI charge in a bench trial. Christian was ordered to pay fines in the amount of $614.50 and court costs of $205.50. Aggrieved by his conviction, Christian has appealed and raised the following issues.

ISSUES PRESENTED

I. Did the trial court commit reversible error by allowing two law enforcement officers to give opinion testimony without first being qualified as experts?

II. Did the trial court commit reversible error by denying the Appellant’s motion for directed verdict at the close of the State’s case-in-chief?

III. Given the lack of evidence as to impairment of driving ability, did the trial court commit reversible error in finding the Appellant guilty of DUI-first offense?

STATEMENT OF FACTS

¶ 2. On September 1, 2001, Timothy Christian was driving near Mississippi Highway 35 in Grenada County. A Mississippi Highway Patrol officer who passed Christian’s vehicle obseryed that Christian failed to stop at a stop sign and did not dim his bright headlights. The officer proceeded to stop Christian’s vehicle and ask for his driver’s license. The time was approximately 8:50 p.m. Upon approaching the vehicle, the officer smelled the odor of alcohol coming from the vehicle. The officer proceeded to request that Christian get out of the vehicle. It was at that time the officer noticed two six-packs of beer inside the vehicle. The officer also observed that a small child in the vehicle was not wearing a safety belt.

¶ 3. After Christian exited the vehicle, the officer asked him how much he had to drink. Christian responded that he had not been drinking. Christian’s behavior towards the officer was belligerent and hostile with frequent episodes of cursing and threats to the officer. An attempt by the officer to administer a portable intoxi-lyzer was unsuccessful. Christian and his young son were transported to the Grenada County Jail. During the ride to the jail, the officer stopped the police car to place Christian in handcuffs due to further cursing and threats to the officer.

¶ 4. The testimony of what occurred at the jail is contested. Two officers testified for the State that Christian refused to take the intoxilyzer test. Christian testified that he blew into the intoxilyzer several times but something was wrong with the machine each time. Christian stated that the officers told him that he was not blowing hard enough. Christian was charged with refusing to take the intoxilyzer test. Hearing all of the evidence presented, the circuit judge found Christian guilty of DUI-first offense and ordered him to pay fines and costs totaling $820. From this misdemeanor conviction, Christian appeals. Finding no reversible error, we affirm.

LEGAL ANALYSIS

I. THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR BY ALLOWING TWO LAW ENFORCEMENT OFFICERS TO GIVE OPINION TESTIMONY WITHOUT FIRST BEING QUALIFIED AS EXPERTS

¶ 5. Christian asserts as his first issue that the trial court committed reversible error by admitting opinion testimony of two officers without the officers being tendered as experts. The admission of testimony is within the sound discretion of the trial court. Earnest v. State, 805 So.2d 599, 606 (¶ 23) (Miss.Ct.App.2002). Unless the discretion was exercised in a manner that was arbitrary and clearly erroneous, the decision on the admissibility of the evidence will stand. Id. Over defense counsel’s objection, Officer Adams and Deputy Sheriff Harper both were permitted to give testimony as to whether, in their opinion, Christian was “under the influence” on the night in question.

¶ 6. Christian argues that for the officers to give an opinion on an ultimate issue, the two officers must be tendered as experts. Testimony on an ultimate issue is discussed in Mississippi Rule of Evidence 7.04. The rule states that “testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” M.R.E. 704 (emphasis added). In his argument, Christian presumes that the officers were required to be tendered as experts to give an opinion on an ultimate issue. Such is not the case.

¶ 7. According to Mississippi Rule of Evidence 701, a lay witness may testify in the form of opinions or inferences which are “(a) rationally based on the perception of the witness, (b) helpful to the clear understanding of testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Officers Adams and Harper were not tendered as experts, but accordT ing to Rule 701, they could give certain opinion testimony.

¶ 8. Officer Adams testified that he observed Christian for about forty-five minutes prior to Christian’s refusal to take the intoxilyzer test at the jail. He testified to smelling the odor of alcohol coming from the vehicle Christian was driving as well as observing the two six-packs of beer in the vehicle. Officer Adams also testified to Christian’s belligerent and threatening behavior towards himself and other officers at the jail. It was after all this testimony that Adams was permitted to testify as to his opinion. Adams testified that based on his observations of Christian that evening, his opinion was that Christian was “under the influence”, on the night in question.

¶ 9. Deputy Harper testified that he was on duty on the night of September 1, 2001. He stated that Christian was brought to the Grenada County Jail and refused to take the breath intoxilyzer test. Harper also testified to Christian’s hostile, vulgar demeanor. Harper testified that he had sufficient opportunity to observe Christian and to form an opinion that he was under the influence. Harper stated, “In my opinion there was sufficient evidence that he [Christian] was drunk.”

¶ 10. According to Rule 701, both officers could give testimony as to their personal observations of Christian. The officers did not have to be tendered as experts to testify to those details. Rules 701 and 704 also give the officers the ability to testify to opinions and inferences, even on ultimate issues, as long as the opinions are otherwise admissible. Because the opinions were rationally based on the perceptions of the officers, helpful to the trier of fact, and not based on scientific knowledge, they are admissible. M.R.E. 701 and 704. The trial court did not commit reversible error by admitting the officers’ opinions.

II. THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR BY DENYING THE APPELLANT’S MOTION FOR DIRECTED VERDICT

¶ 11. Christian asserts as his second issue that the trial court committed error by denying his motion for directed verdict due to the lack of sufficiency of the evidence. In his appellate brief, Christian refers to the motion as a “motion to dismiss;” however, since the motion was made at the conclusion of the State’s case-in-chief, the proper term is motion for directed verdict. The standard of review for denial of a judgment notwithstanding the verdict (JNOV) and directed verdict are the same. Grihim v. State, 760 So.2d 865, 866 (¶ 6) (Miss.Ct.App.2000) (citing Am. Fire Prot., Inc. v. Lewis, 653 So.2d 1387, 1390 (Miss.1995)). An appellant challenges the sufficiency of the evidence when he appeals from a denied motion for JNOV or directed verdict. Noe v. State, 616 So.2d 298, 302 (Miss.1993).

¶ 12. Our state’s supreme court offered guidance on this issue in McClain v. State, 625 So.2d 774 (Miss.1993). In McClain, the court stated that in appeals from a denied JNOV: “the sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State.” Id. at 778 (citing Esparaza v. State, 595 So.2d 418, 426 (Miss.1992)). The credible evidence consistent with [the defendant’s] guilt must be accepted as true. Spikes v. State, 302 So.2d 250, 251 (Miss.1974). The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Wetz v. State, 503 So.2d 803, 808 (Miss.1987). Matters regarding the weight and credibility of the evidence are to be resolved by the jury. Neal v. State, 451 So.2d 743, 758 (Miss.1984). We are authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty. Wetz, 503 So.2d at 808; McClain, 625 So.2d at 778.

¶ 13. The trial court heard the testimony of Officers Adams and Harper and concluded that the State introduced sufficient evidence to raise a question as to whether Christian was driving while under the influence of alcohol in violation of Mississippi Code Annotated Section 63-11-30(1). As the State contends in its appellate brief, the State offered proof that Christian ran a stop sign and did not dim his headlights when Officer Adams passed his car. Clearly this was reckless driving and the officers were justified in stopping Christian’s vehicle based on the traffic violations. The State also offered proof that Officer Adams smelled the odor of alcohol coming from Christian’s vehicle and saw two six-packs of beer inside Christian’s car. Officer Adams testified to Christian’s belligerent behavior, vulgar language and threats to Officer Adams.

¶ 14. The State also introduced evidence that Christian refused to take the intoxilyzer test at the jail. This evidence was admissible against Christian. Price v. State, 752 So.2d 1070, 1074 (¶ 16) (Miss.Ct. App.2000). The trial judge denied Christian’s motion for directed verdict ruling that the State had offered sufficient proof that Christian was driving his vehicle while under the influence of alcohol. Viewing the evidence in the light most favorable to the State and accepting all evidence as true, the trial judge properly denied Christian’s motion for directed verdict.

III. THE TRIAL JUDGE DID NOT COMMIT REVERSIBLE ERROR IN FINDING THE DEFENDANT GUILTY OF DUI-FIRST OFFENSE

¶ 15. Christian asserts that the trial judge committed reversible error in finding him guilty of DUI-first offense given the lack of evidence on impairment of driving ability. Upon being found guilty by the circuit court, Christian did not make a motion for a new trial. Instead, he now appeals the trial court’s finding of guilt.

¶ 16. Our courts have held that the finding of the trial court is to be given the same deference as a jury verdict and will not be reversed upon appeal unless manifestly wrong. Jones v. Jones, 760 So.2d 828, 829 (¶ 10) (Miss.Ct.App.2000) (citing R.C. Constr. Co., Inc. v. Nat’l Office Sys., Inc., 622 So.2d 1253, 1255 (Miss.1993)). In Jones, this Court stated, “[a] circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor,” and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence. Id. (citing Par Indus., Inc. v. Target Container Co., 708 So.2d 44, 47 (Miss.1998) (quoting Puckett v. Stuckey, 633 So.2d 978, 982 (Miss.1993))).

¶ 17. This Court set forth the standard of review for findings of a circuit court judge in the case of Bray v. City of Meridian, 723 So.2d 1200, 1202 (¶ 16) (Miss.Ct.App.1998) when it stated that factual findings made by a trial judge sitting without a jury will be upheld when they are supported by reasonable evidence found in the record and are not manifestly wrong or clearly erroneous. In Jones, this Court stated that an appellate court must look to the entire record and “must accept that evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable infer-enees which may be drawn therefrom and which favor the lower court’s findings of fact.” Jones, 760 So.2d at 829 (¶ 10) (citing Cotton v. McConnell, 435 So.2d 683, 685 (Miss.1983) (quoting Culbreath v. Johnson, 427 So.2d 705, 707-708 (Miss.1983))).

¶ 18. Christian relies on Section 63 — 11— 30(1) of the Mississippi Code Annotated as his basis for the assertion that the State did not meet its burden of proof when it failed to offer any evidence on driving impairment. Section 63-11-30(1) has three separate and distinct subsections. The statute reads: “It is unlawful for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor; (b) is under the influence of any other substance which has impaired such person’s ability to operate a motor vehicle; (c) has an alcohol concentration of eight one-hundredths percent (.08 %) or more for persons who are above the legal age to purchase alcoholic beverages under state law....” Miss.Code Ann. § 63-11-30(1) (Supp.2003). The Circuit Court of Grenada County found Christian guilty of the crime of DUI-first offense. According to Section 63-11-30(1), Christian could be found guilty of DUI by either (a) driving under the influence of intoxicating liquor, (b) driving under the influence of any other substance impairing his driving ability, or (c) driving with eight one-hundredths percent (.08 %) blood alcohol content.

¶ 19. Christian was charged with driving while under the influence of intoxicating liquor. The applicable statute distinguishes this charge from driving while under the influence of another substance that impairs driving ability. Given the distinction in statutory language, we hold that the State was not obligated to offer proof on impairment of Christian’s driving ability only proof of his driving under the influence of intoxicating liquor. Despite the fact that the State was not required to offer proof of Christian’s impaired driving ability, the State offered this proof anyway. Officer Adams testified that Christian ran a stop sign and failed to turn off his high beams as he passed the officer. Clearly Christian’s actions were evidence of his driving impairment. Keeping in mind our standard of review, the trial court’s decision was in no way clearly erroneous and was supported by evidence contained in the record. Finding no error, the decision of the lower court is affirmed.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF GRENADA COUNTY OF CONVICTION OF DUI-FIRST OFFENSE AND FINES OF $614.50 IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    James Troy WOLVERTON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01279-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2003.

      Deborah J. Gambrell, Hattiesburg, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   MYERS, J.,

for the Court.

¶ 1. On July 12, 2002, a trial was held in the Circuit Court of Jones County. The jury found Troy Wolverton guilty of the sale of a controlled substance. He was sentenced to a term of twenty-five years in the custody of the Mississippi Department of Corrections pursuant to Section 41-29-39(b)(1) of the Mississippi Code Annotated with ten years suspended. On August 2, 2002, Wolverton filed this appeal raising the following issues:

I. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF EVIDENCE?
II. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN ALLOWING THE SUBMISSION OF THE STATE’S JURY INSTRUCTION?
III. DID THE APPELLANT RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL?

STATEMENT OF FACTS

¶ 2. On March 6, 2001, Bounds, an officer with the Laurel Police Department, met with Williams, a confidential informant working with the police department, for the purpose of making a “controlled buy” from Wolverton. Williams contacted Wol-verton and the two men arranged to meet at a gas station.

¶ 3. Before this took place, Williams met with Bounds and other officers. Williams and his automobile were thoroughly searched for money and contraband. He was provided a coat by the police that was fitted with a video camera disguised as a button. Williams was also fitted with an audio device disguised as a beeper. Officer Bounds gave Williams money to purchase the drugs from Wolverton. Then, Bounds, along with other officers from the Laurel Police Department, followed Williams to the designated site.

¶ 4. Williams met Wolverton at the gas station and gave him money. No drugs were transferred at this time. However, Wolverton asked Williams to meet him later at Legion Field, a municipal ballpark located in Laurel. At this second meeting, Wolverton allegedly gave Williams a bag containing a small amount of crack cocaine. Upon receiving the cocaine, Williams drove directly to the location where he had met Bounds and the other officers beforehand. Williams gave Bounds the bag he received from Wolver-ton. Williams and his automobile were again searched thoroughly for money and contraband. He returned the equipment to Officer Bounds and was paid for his services.

¶ 5. On September 13, 2001, Wolverton was indicted for the sale of a controlled substance within 1500 feet of a ball park in violation of Sections 41-29-139(a)(l) and 41-29-142(1) of the Mississippi Code Annotated. On December 21, 2001, Wolver-ton was arraigned and a trial was held on June 12 of the following year. The State called Bounds and Williams to testify. It also called Downey, a forensic scientist with the Mississippi Crime Lab, who testified that the substance was crack cocaine. The trial court denied Wolverton’s motion for a directed verdict. Wolverton did not testify on his own behalf or offer any witnesses. The trial court also denied Wolverton’s requests for a mistrial and the jury returned a verdict of guilty. Feeling aggrieved by this result, Wolverton filed a notice of appeal and a motion for an appeal bond. On August 5, 2002, the trial court issued an order granting Wolverton’s motion and he was released on bond pending this appeal. Finding no error, we affirm.

LEGAL ANALYSIS

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

¶ 6. Wolverton contends that the verdict was against the overwhelming weight of evidence. He also claims that the evidence presented was insufficient to allow a guilty verdict. Wolverton maintains that' the trial court should have granted his motion for a directed verdict.

¶ 7. The standard of review concerning the sufficiency of evidence is quite limited. Brown v. State, 796 So.2d 223, 225(¶ 6) (Miss.2001) (citing Clayton v. State, 652 So.2d 720, 724 (Miss.1995)). All of the evidence must be considered in the light most consistent with the verdict. Id. In addition, the prosecution is given the benefit of “all favorable inferences that may reasonably be drawn from the evidence.” Clayton, 652 So.2d at 724. This Court “will not reverse unless the evidence with respect to one or more of the elements of the offense charged is such that reasonable and fairminded jurors could only find the accused not guilty.” Brown, 796 So.2d at 225(¶ 6) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)).

¶ 8. Wolverton argues the State did not prove that he sold the cocaine to Williams, the confidential informant. Specifically, Wolverton contends the State failed to prove that Wolverton had knowledge of the transaction and that Wolverton had actual or constructive possession of the cocaine. Wolverton emphasizes the fact that the audiotape never mentions the word “drugs” and the videotape does not show the cocaine ever exchanging hands. In other words, Wolverton argues that it is essentially Williams’s word against his own.

¶ 9. The State argues that it did, in fact, meet the necessary burden of proof. In support of this, the State contends that it presented the unequivocal testimony of Williams which was corroborated by Officer Bounds. The State further argues that Wolverton presented no evidence to the contrary.

¶ 10. It is the duty of the jury to listen to all of the testimony and determine who is a credible witness and whether the evidence supports the crime charged. Bridges v. State, 716 So.2d 614, 617 (¶ 15) (Miss.1998). In addition, it appears from the record that the State presented each element of the crime.

¶ 11. Officer Bounds testified as to the scenario and the use of the confidential informant. He testified as to the procedures followed, establishing location and the chain of custody of the cocaine purchased on the day in question. Williams identified Wolverton in the courtroom and gave a detailed narrative of the transaction. The State also called a scientist from the crime lab who was qualified as an expert in his field. He testified that the substance presented for testing was, in fact, cocaine.

¶ 12. Accordingly, there was legally sufficient evidence to support each and every element of the crime for which Wolverton was charged. As a result, the trial court was correct in denying Wolverton’s motion for a directed verdict. Furthermore, when viewing all evidence in the light consistent with the verdict and giving the State all favorable inferences which may be drawn from the evidence, this Court holds that the verdict was not against the overwhelming weight of evidence.

II. DID THE COURT COMMIT REVERSIBLE ERROR IN ALLOWING THE SUBMISSION OF THE STATE’S JURY INSTRUCTION?

¶ 13. Wolverton argues that the trial court committed reversible error in allowing the State’s submission of jury instruction “S-l,” which was a request for the jury to consider finding Wolverton guilty of the sale of a controlled substance as opposed to the charge of “sale of a controlled substance within 1500 feet of a ball field,” which was the charge on which he was indicted. Wolverton claims that the trial court acted improperly in allowing the return of a guilty verdict for a charge other than that of the indictment.

¶ 14. In determining whether error lies in the granting or refusal of a particular jury instruction, “the instructions given must be read as a whole.” Fultz v. State, 822 So.2d 994 (¶ 11) (Miss.Ct.App.2002). If the instruction “fairly announces the law of the case and creates no injustice, [then] no reversible error will be found.” Id.

¶ 15. The trial transcript reveals that Wolverton’s attorney did not object to the State’s jury instruction. Accordingly, this issue is not eligible for our review. Johnson v. State, 768 So.2d 934, 938 (¶ 16) (Miss.Ct.App.2000). In addition, the language “within 1500 feet of a ballpark” is not a substantive element to this offense. Swington v. State, 742 So.2d 1106, 1118 (¶ 45) (Miss.1999). Instead, it relates only to the imposition of an enhanced penalty upon conviction.

¶ 16. In the case, sub judice, Wolverton was sentenced to a twenty-five year term with ten years suspended. The maximum penalty for the sale of the particular amount of cocaine at issue is thirty years. Miss.Code Ann. § 41-29-139(b)(1) (Rev.2001). If the sale takes place within 1500 feet of a ball park, then the court, in its discretion, has the authority to double the sentence allowed under § 41-29-139(b). Miss.Code Ann. § 41-29-142(1) (Rev.2001).

¶17. Since Wolverton received five years less than the maximum allowed for the simple sale of a controlled substance, he was not prejudiced by the omission of the language “within 1500 feet of a ballpark.” In fact, inclusion of that particular language - would only serve to increase Wolverton’s sentence due to the fact that the sale took place at a ball park. Therefore, the trial court did not commit reversible error in allowing the jury instruction.

III. DID THE APPELLANT RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL?

¶ 18. Wolverton raises two arguments concerning the adequacy of his legal representation. First, he contends that he was denied effective assistance because an agreed order substituting counsel was entered only five days before trial. Second, Wolverton contends that he was denied effective assistance of counsel because his attorney failed to object to the State’s jury instruction, S-l.

¶ 19. The standard for review concerning a claim for ineffective assistance of counsel is well settled. The standard was first announced in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). Mississippi adopted the Strickland standard in Stringer v. State, 454 So.2d 468 (Miss.1984). Under this test, two factors must be shown before counsel can be determined to have been ineffective. Rankin v. State, 636 So.2d 652, 656 (Miss.1994). First, that counsel’s performance was deficient. Id. Second, that the defendant was prejudiced by his counsel’s mistakes. Id. The defendant has the burden of proof on both of these prongs. Id. In addition, there is a strong but rebuttable presumption that counsel’s performance falls within the wide range of reasonable professional assistance. Colenburg v. State, 735 So.2d 1099, 1102-03(¶ 9) (Miss.Ct.App.1999). To overcome this presumption, the defendant must show that but for his attorney’s errors, there is a reasonable probability that he would have received a different result in the trial court. Colenburg, 735 So.2d at 1103(¶ 9).

¶ 20. Wolverton alleges that his attorney, J. Ronald Parish, did not have sufficient time to prepare an adequate defense for trial because he was designated as counsel only five days before the trial began. In his brief, Wolverton alleges that he maintained representation through the public defender’s office almost up until the day of trial. The record, however, does not support this.

¶ 21. On December 21, 2001, at Wolver-ton’s arraignment, he was represented by private counsel. The attorney’s name was Anthony J. Buckley. On June 7, 2002, an agreed order substituting counsel from Buckley to Parish was entered. The stated reason for the substitution was a conflict of interest. On June 12, 2002, a trial was held in which Parish represented Wol-verton.

¶ 22. Wolverton produced no evidence of why his attorney’s representation was deficient. Furthermore, Wolverton produced no evidence why the substitution of counsel prejudiced him. As a result, the substitution of attorneys five days before trial does not result in a denial of effective assistance of counsel.

¶ 23. Wolverton further alleges that he was prejudiced by his attorney’s failure to object to the State’s jury instruction, S-l. Wolverton, however, cannot show that he was prejudiced by his attorney’s failure to object. To the contrary, although the State proved that the sale was completed at a ball park, the result is that Wolverton was convicted of the simple sale of cocaine and received an unenhanced sentence. If Wolverton’s attorney objected to the entry of the instruction, he would have been placing Wolverton in jeopardy of receiving an enhanced sentence which could have resulted in the doubling of the original sentence.

¶ 24. We hold that Wolverton has failed to meet either requirement under Strickland. As a result, Wolverton has failed to rebut the presumption that Parish acted within the wide range of reasonable professional assistance. Wolverton was not denied effective assistance of counsel.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY OF CONVICTION OF SALE OF A CONTROLLED SUBSTANCE WITHIN 1500 FEET OF A BALL PARK AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH TEN YEARS SUSPENDED IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Frank RAMSEY, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-01276-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2003.
    Frank Ramsey, Jr., appellant, pro se.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
    Before McMILLIN, C.J., MYERS and GRIFFIS, JJ.
   MCMILLIN, C.J.,

for the Court.

¶ 1. In 1986, Frank Ramsey, Jr. was convicted of manslaughter and sentenced as a habitual offender based on the fact that he had two prior felony convictions. He appealed that conviction to the Mississippi Supreme Court, and that court affirmed the conviction. Ramsey v. State, 554 So.2d 300 (Miss.1989). He has, since that time, repeatedly flooded the Bolivar County, Second Judicial District, Circuit Court with voluminous pleadings seeking various forms of relief. The pleadings in large part remain indecipherable despite the best efforts of this Court to interpret them.

¶ 2. The matter now before this 'Court is Ramsey’s pro se appeal from an order of the circuit court denying him any relief under our post-conviction relief statutes oh his most recent pleading. The actual order appealed from denied Ramsey’s request for rehearing of an earlier order that also denied any relief.

¶ 3. In the latest order, the court noted that, because Ramsey’s manslaughter conviction had been appealed and affirmed, he was required to obtain leave of the Mississippi Supreme Court to file a post-conviction relief motion. Miss.Code Ann. § 99-39-7 (Supp.2003). The court observed that the supreme court had refused Ramsey such permission by order entered in March 2002. In that order, the supreme court denied authority to file a post-conviction relief motion in the circuit court upon reaching the conclusion that Ramsey’s claims were time-barred under Mississippi Code Annotated Section 99-39-5(2) (Supp. 2003). That order has not been the subject of a motion to reconsider and the order plainly barred the circuit court from considering Ramsey’s attack on his manslaughter conviction.

¶ 4. A part of Ramsey’s theory of relief appears to have been to question the validity of one or both of the earlier felony convictions that subjected him to enhanced punishment as a habitual offender. Insofar as Ramsey’s pleadings could be interpreted as seeking post-convietion relief from either of these two earlier felony-convictions, the circuit court observed that both convictions pre-dated the 1986 manslaughter conviction and that any such claims were necessarily time-barred under the same three-year statute of limitations applied by the supreme court to deny Ramsey leave to attack the manslaughter conviction.

¶ 5. Ramsey does not affirmatively contend that any of the limited exceptions to the three-year limitation period set out in Section 99-39-5 have application to the matters raised in his pleadings. Because of Ramsey’s status as a pro se litigant, we have undertaken our own independent research of the question out of an abundance of caution and are satisfied that no such authority, undiscovered by Ramsey, exists.

¶ 6. For that reason, we conclude that the circuit court’s determination to deny relief was correct, and we summarily affirm.

¶ 7. THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY DENYING REHEARING OF POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

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