text:
    STATE of Louisiana v. Roland A. AUTHEMENT, Jr.
    No. 2006-1182.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.

      Roland A. Authement, Jr., In Proper Person, Bander, Louisiana, W. Jarred Franklin, Louisiana Appellate Project, Bossier City, Louisiana, for Defendant/Appellant, Roland A. Authement, Jr.
    David W. Burton — District Attorney, ADA Richard F. Blankenship, DeRidder, Louisiana, for Appellee, State of Louisiana.
    Court composed of MARC T. AMY, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

1On February 17, 2006, the Defendant, Roland A. Authement, Jr., was charged by an amended bill of information with one count of possession of a controlled dangerous substance (methamphetamine), in violation of La.R.S. 40:967(C), and one count of possession of a controlled dangerous substance (cocaine), in violation of La.R.S. 40:967(C) On February 24, 2006, pursuant to trial by jury, the Defendant was found guilty of both counts.

On June 28, 2006, the Defendant was sentenced to nine years at hard labor on each count, with credit for time served, and with the sentences to run concurrently. In addition, the Defendant was ordered to pay a fine in the amount of $2,500, plus costs of court, on each count. The Defendant orally motioned for an appeal, and the Defendant is now before this court alleging the following assignments of error:

1) insufficient evidence to prove his guilt beyond a reasonable doubt; and
2) excessive sentences imposed for this offender and these offenses.

The Defendant also asserts the following pro se supplemental assignments of error:

1) that he is constitutionally entitled to a trial before a twelve-member jury;
2) that he has a constitutional right to testify on his own behalf before a jury; and
8) that he is constitutionally entitled to a fair and impartial trial.

For the following reasons, the Defendant’s convictions and sentences are affirmed.

FACTS

The following facts were adduced at trial. Just before midnight on March 17, | ¡>2005, Deputy Clyde Kellogg (“Deputy Kellogg”) of the Beauregard Parish Sheriffs Office (“BPSO”) responded to a call from the dispatcher to assist a stalled motorist on Highway 112. Upon his arrival, Deputy Kellogg observed the Defendant attempting to move a dark-colored, small pick-up truck off the road. Deputy Kellogg asked the Defendant for a driver’s license, which he was unable to produce; consequently, Deputy Kellogg radioed the dispatcher with the Defendant’s name and date of birth to determine the status of the Defendant’s driver’s license. In response, the dispatcher informed Deputy Kellogg that the Defendant’s driver’s license was suspended. Upon inquiry, the Defendant informed Deputy Kellogg that the truck had run out of gas and that his friend would be back shortly. While waiting for the friend to return with gas, Deputy Daniel Tew (“Deputy Tew”) with the BPSO arrived on the scene. Shortly thereafter, the Defendant’s friend returned with gas for the truck.

According to Deputy Kellogg’s testimony, which was subsequently corroborated by Deputy Tow’s testimony, after the Defendant’s friend returned with the gas, both he and the Defendant behaved in a nervous and anxious manner and encouraged the officers to leave, thus causing the officers to become suspicious. Thereafter, Deputy Kellogg asked the Defendant if there was anything illegal in the truck. The Defendant replied that he was a former drug user, but had been “clean” since 2003, and that the deputy was free to search his truck. Initially, Deputy Kellogg discovered a butane lighter and steel wool on the floorboard of the truck. Upon further investigation, Deputy Kellogg retrieved a green jacket in the cab of the truck that contained a metal tube with burnt steel wool in one end, indicative in his experience and training as a law enforcement officer as drug paraphernalia used to smoke crack cocaine or methamphetamine. Thereafter, the Defendant was arrested for possession of drag paraphernalia; he was patted down, handcuffed, and placed in ^Deputy Tew’s cruiser. Deputy Kellogg subsequently requested that a canine unit be dispatched for further investigation of the pick-up truck, which lead to the discovery of additional drug paraphernalia. After completing the search of his pick-up truck, the Defendant was transported to the Beauregard Parish Jail for booking and, thereafter, turned over to the custody of Deputy Derek Smith (“Deputy Smith”), the booking officer on duty. Deputy Kellogg then placed the evidence recovered from the Defendant’s pick-up track in the evidence locker at the Beauregard Parish Jail.

After being turned over to Deputy Smith, the Defendant was processed and then issued among other items: a jail uniform, sheets, a blanket, shower shoes, various personal toiletries, and a roll of toilet paper. After being issued the aforementioned items, the Defendant was ordered to change into his jail uniform. After changing, the Defendant was given a paper bag in which he placed his clothes and the other items that he had been issued by Deputy Smith. At this point, Deputy Smith was notified by his supervisor of other duties that need to be tended to; consequently, Deputy Smith decided to place the Defendant in a holding cell. Deputy Smith testified that prior to placing the Defendant in the holding cell, he visually checked the cell to make sure it was free from any contraband. Upon his return to the holding cell, Deputy Smith informed the Defendant that he needed to be stripped searched. Upon opening the cell, Deputy Smith became suspicious when he observed the Defendant stuff something into the core of the roll of toilet paper and then stuff the roll of toilet paper in the bag that contained his personal belongings. Deputy Smith then took the Defendant to a nearby bathroom where he conducted a strip search in which no contraband was discovered. After the strip search, Deputy Smith returned to the book-in desk and placed the bag with the Defendant’s personal belongings on the desk. He retrieved the roll of toilet paper and looked in its core |4where he discovered something stuffed inside. Deputy Smith pushed the contents of the core out. Said contents appeared to be a rolled up brown paper towel which contained three small clear Zip-lock bags. One bag contained a clear substance, and the other two bags contained some type of yellowish substance. Thereafter, Deputies Kellogg and Tew were notified of Deputy Smith’s findings and subsequently returned to the book-in area. They retrieved the three Zip-lock bags, labeled them, and placed them in the evidence locker. The Defendant was subsequently charged with one count of possession with intent to distribute a controlled dangerous substance (methamphetamine), in violation of La.R.S. 40:967(A), and one count of possession with intent to distribute a controlled dangerous substance (cocaine), in violation of La.R.S. 40:967(A). Subsequent tests of the contents of the three Zip-lock bags revealed that the clear substance was cocaine base, and the yellowish substance in the two other bags was methamphetamine.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, the Defendant asserts that there was insufficient evidence presented at his trial to convict him of possession of either methamphetamine or cocaine. The thrust of the Defendant’s argument is that the State failed to prove that the Defendant knowingly or intentionally possessed the narcotics discovered by Deputy Smith.

In State v. Touehet, 04-1027, pp. 1-2 (La.App. 3 Cir. 3/9/05), 897 So.2d 900, 902, this court opined:

With regard to sufficiency of the evidence, this court set forth as follows in State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27:
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could | shave found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witness. Therefore, the appellate court should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See King, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).
In order for the State to obtain a conviction, it must prove the elements of the crime beyond a reasonable doubt. In order for this court to affirm a conviction, the record must reflect that the State has satisfied this burden of proving the elements of the crime beyond a reasonable doubt. State v. Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367.

The Defendant in this case was convicted of two counts of possession of a controlled dangerous substance, in violation of La.R.S. 40:967(C), which states in pertinent part: “[i]t is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance as classified in Schedule II.... ” Thus, the State had to prove two elements: 1) the Defendant knowingly or intentionally; 2) possessed a controlled dangerous substance. We find that there was sufficient evidence presented at trial for a jury to conclude that the State proved beyond a reasonable doubt the essential elements of the offense of possession of methamphetamine and cocaine.

In the present case, the evidence at trial established that Deputy Smith retrieved three small Zip-lock bags containing narcotics from a roll of toilet paper that had been issued to the Defendant, wherein the roll was retrieved from a bag that contained the Defendant’s personal effects over which he had exclusive control. The Defendant asserts that no evidence was adduced at trial to prove that the roll of toilet paper retrieved by Deputy Smith, which contained narcotics, was the same roll that he had | ¿issued to the Defendant earlier.

At trial, Deputy Smith testified that a roll of toilet paper, among other items, was issued to the Defendant after he had been booked into the jail. Deputy Smith further testified that prior to placing the Defendant in the holding cell, he had the Defendant change into a prison uniform and gave him a paper bag in which to place his personal belongings. Prior to placing the Defendant in the holding cell, Deputy Smith stated that he visually checked the cell to make sure that it was free from any contraband. His check of the cell led him to believe that there was no contraband in the cell and, consequently, he placed the Defendant in the cell. Thereafter, Deputy Smith returned to the cell to conduct a strip search of the Defendant as part of the booking process. Upon his return, he noticed that the Defendant shoved something into the roll of toilet paper that he had been issued and then put the roll of toilet paper in the paper bag that he was using to hold his personal items. After conducting a strip search of the Defendant, where no contraband was found on his immediate person, Deputy Smith proceeded to retrieve the roll of toilet paper that the Defendant had placed in the paper bag with the rest of his belongings. Upon inspection of the roll of toilet paper, Deputy Smith discovered a brown paper towel stuffed in the core. Covered by the paper towel were three small Zip-lock bags containing substances he believed to be drugs. Deputy Smith notified his supervisor who, in turn, requested that Deputies Kellogg and Tew return to the jail’s book-in area where they received the evidence, labeled it, and placed it in the evidence locker.

In State v. Carmack, 39,823 (La.App. 2 Cir. 6/29/05), 907 So.2d 868, the appellate court held that a person does not have to be in actual possession of a controlled substance. One may be in constructive possession if the controlled substance is subject to his control and dominion, and if he has knowledge of the |7controlled substance. In Carmack, the defendant was convicted of possession of a controlled dangerous substance where, upon command from a law enforcement officer, the defendant removed his hands from his pockets at which time he flipped a small bag out of his hand onto the ground next to him. The bag was later determined to have contained cocaine. Likewise, in State v. Walker, 99-1957 (La.App. 4 Cir. 5/17/00), 764 So.2d 1130, the appellate court affirmed a conviction for possession of a controlled dangerous substance where the defendant, who had been urinating on the side of a house when the police approached, placed a match box on the porch of the house; said box later was determined to have contained crack cocaine. Finally, in State v. Guillará, 98-504, p. 4 (La.App. 4 Cir. 4/7/99), 736 So.2d 273, 276, the appellate court stated, “[t]he elements of knowledge and intent are states of mind and need not be proven as facts, but rather may be inferred from the circumstances. The factfinder may draw reasonable inferences to support these contentions based upon the evidence presented at trial.”

Based on the testimony presented at trial, it is plausible that the jury reasonably inferred from the facts of this case, that the Defendant did knowingly and intentionally possess methamphetamine and cocaine; therefore, he was properly convicted. The Defendant’s assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, the Defendant alleges that his sentence is excessive for this offender in this case. The Defendant further alleges that the trial court failed to list the factors considered under La.Code Crim.P. art. 894.1 and failed to consider the Defendant’s family history or work history.

At his sentencing hearing, counsel for the Defendant objected to the sentence as being excessive. Furthermore, while a motion to reconsider sentence was not | sexplicitly made, defense counsel’s objection to the sentence could be construed as an oral motion to reconsider sentence which is permissible under La.Code Crim.P. art. 881.1(B). However, defense counsel never articulated any basis or specifics as to why the sentence was excessive. Therefore, we are evaluating this claim as a bare claim of excessiveness. State v. Mims, 619 So.2d 1059 (La.1993).

This court has set forth the following standard to be used in reviewing excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042^13, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

In order to determine whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:

[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “[i]t is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1[, 3] (La.App. 1 Cir. 1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each 19case.” State v. Cook, 95-2784[, 2] (La.5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

In the instant case, the Defendant was convicted of two counts of possession of a controlled dangerous substance, in violation of La.R.S. 40:967(C). The sentence for possession of these controlled dangerous substances is not less than two years and not more than five years and a fine of up to $5,000 on each count. Additionally, because the Defendant had been previously convicted of other drug offenses, his sentences were enhanced in accordance with La.R.S. 40:982(A), which allowed the trial court to sentence the Defendant up to twice the maximum term of the instant offense, i.e., up to ten years for each count and a fine of up to $10,000.

In this case, the Defendant was sentenced to nine years on each count, with the sentences to run concurrently, and ordered to pay a fine of $2,500. This is less than the maximum of ten years and a $10,000 fine that could have been imposed for each count. At the sentencing hearing, the trial court stated: “there are no mitigating factors the Court should consider in arriving at the proper sentence for you. I have taken into account all of the provisions of Code of Criminal Procedure Article 894.1 in determining your sentence.” Furthermore, the trial court noted in reviewing the Defendant’s PSI that:

[Y]ou have a very extensive criminal history, dating back to an arrest in 1976 ... you have been arrested at least 25 times. You presently have felony drug charges against you in Acadia Parish and Evangeline Parish.
You are now 46 years of age, and there has been no extended period during your adult life in which you were not involved in some criminal activity.

The trial court also noted that the Defendant had been convicted of attempted simple 110burglary in 1984.

When imposing a sentence, the trial court is not required to list each aggravating and mitigating factor articulated under La.Code Crim.P. art. 894.1; however, the record should reflect that the sentence has been particularized to the party being sentenced. State v. Smith, 433 So.2d 688 (La.1983). We find that the trial court’s thorough reasoning reflects that the sentence was particularized to this Defendant. Accordingly, we find that the trial court did not abuse its discretion when it sentenced the Defendant.

PRO SE ASSIGNMENT OF ERROR NO. 1

The Defendant asserts that the trial court erred when it submitted his case to a six-member jury for deliberations. The Defendant bases his assertion on La. Const, art. I, § 17, which states, in pertinent part, “[a] case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict.” While this statement is true, the Defendant was convicted of two counts of possession of a controlled dangerous substance in violation of La.R.S. 40:967(C), which is punishable with or without hard labor; hence, the Defendant’s sentencing exposure did not constitute a case where punishment was necessarily confinement at hard labor which would have required a twelve-member jury. A six-member jury in this case is correct.

In State v. Marcantel, 388 So.2d 383 (La.1980), the supreme court held that defendants, who were charged with crimes punishable with or without hard labor, could not be tried before a jury of twelve persons, but had to be tried before a six-person jury. Because the punishment for a violation of La.R.S. 40:967(C) is with or without hard labor, the trial court did not error when it submitted the Defendant’s case to a six-member jury for deliberation. This pro se assignment of error is without Inmerit.

PRO SE ASSIGNMENT OF ERROR NO. 2

The Defendant asserts that his constitutional rights were violated because he was not allowed to testify on his own behalf. In support of his assertion, the Defendant cites several cases, including State v. Johnson, 482 So.2d 146 (La.App. 4 Cir.1986). In Johnson, the appellate court reversed a jury verdict on the basis that the trial court refused to allow the defendant to testify on his own behalf. During the trial in Johnson, prior to the matter being submitted to the jury, the defendant stated, “I have a right to take the stand. I want the record to reflect that.” Id. at 147.

In this case, a thorough review of the trial record failed to reveal any type of objection by the Defendant that he was being deprived of the right to testify. Furthermore, there is nothing in the trial record that could be construed as the Defendant seeking to assert his right to testify at trial as in Johnson. Consequently, the trial court did not deprive the Defendant of his right to testify on his own behalf. This pro se assignment of error is without merit.

PRO SE ASSIGNMENT OF ERROR NO. 3

The Defendant alleges that he was deprived of a fair and impartial trial. In his brief, he notes several instances of inconsistent testimony offered by the prosecution’s witnesses. The Defendant also makes the broad allegation that his counsel was ineffective and, consequently, that he was denied the effective assistance of counsel as guaranteed by the constitutions of Louisiana and the United States.

In addressing the Defendant’s first allegation, inconsistent testimony offered by the prosecution, we note that the inconsistencies that the Defendant complains of are not related to the crimes for which he has been tried and convicted. Consequently, there is no basis to address this issue.

| ^Additionally, most of the Defendant’s allegations of ineffective assistance of counsel deal with claims which are not related to the offenses for which he was tried and convicted. However, there is one issue raised by the Defendant which merits our consideration. The Defendant alleges that his attorney was ineffective when he failed to move for a mistrial after a juror allegedly observed the Defendant outside the courtroom in restraints and, as a result thereby, he claims he was prejudiced. The second circuit addressed this issue in State v. Thornton, 36,757, p. 9 (La.App. 2 Cir. 1/29/08), 836 So.2d 1235, 1241, writ denied, 03-861 (La.10/31/03), 857 So.2d 474:

Absent exceptional circumstances, a defendant before the court should not be shackled, handcuffed, or garbed in any manner destructive to the presumption of innocence or detrimental to the dignity and impartiality of the judicial proceedings. State v. Stephens, 412 So.2d 1057 (La.1982); State v. Plater, 26,252 (La.App. 2d Cir.09/21/94), 643 So.2d 313, writ denied, 94-2608 (La.02/03/95), 649 So.2d 402. For a finding of reversible error, the record must show an abuse of the trial court’s reasonable discretion resulting in a clear prejudice to the accused. Plater, supra. The momentary use of restraints for the limited purpose of transporting the accused does not mandate a mistrial even when a juror sees a defendant being transported on two occasions. State v. Jones, 31,613 (La.App. 2d Cir.04/01/99), 733 So.2d 127, writ denied, 99-1185 (La.10/01/99), 748 So.2d 434.

In the instant case, the record is absent of any indication that a juror viewed the Defendant outside the courtroom in restraints. On this basis alone, the allegation of ineffective assistance of counsel is without merit. Even assuming arguendo that a juror had viewed the Defendant outside the courtroom in restraints, considering the court’s holding in Thornton, said incident would not have been a basis for a mistrial. Therefore, under the facts in this case, the failure of Defendant’s attorney to move for a mistrial is not deemed to be ineffective assistance of counsel. Consequently, the Defendant’s allegation of ineffective assistance of counsel is without merit.

DECREE

The Defendant’s convictions and sentences on the charges of possession of 11smethamphetamine and cocaine, in violation of La.R.S. 40:967(C), are affirmed.

AFFIRMED.

      . The Defendant was originally charged with possession with intent to distribute on each count under La.R.S. 40:967(A). However, the charges were later reduced based on the weight of the drugs recovered from the Defendant.

      . In 1977, the Defendant was convicted of possession of marijuana, and in 1991, he pled guilty to possession of cocaine and was incarcerated for three years.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    Jessie BELL v. AMERICAN INTERNATIONAL GROUP, et al.
    No. 06-1242.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.

      Robert W. Hallack, Baton Rouge, LA, for Plaintiff/Appellant, Jessie Bell.
    S. Brian Perry, Randall K. Theunissen, Allen & Gooch, Lafayette, LA, for Defendant/Appellee: IP Petroleum Co., Inc.
    Edwin G. Preis, Jr., Richard J. Hymel, Preis, Kraft & Roy, Lafayette, LA, for Defendants/Appellees, National Union Fire Company of LA Operators and Consulting Serv., Inc.
    Elton Duncan, III, Duncan, Courington & Rydberg, New Orleans, LA, for Defendant/Appellee, Mark & Emmett Marine, Inc.
    Ross David Bruce, Agent for Service, LaRose, LA, for Defendant/Appellee, Gulf Tran, Inc.
    Court composed of OSWALD A. DECUIR, GLENN B. GREMILLION, and BILLY HOWARD EZELL, Judges.
   GREMILLION, Judge.

1The plaintiff, Jessie Bell, appeals the judgment of the trial court sustaining his peremptory exception of prescription. The trial court held that his claims against the defendant, Mark & Emmett Marine, Inc., were prescribed as he failed to assert them within three years of the date of the incident, pursuant to general maritime law. We affirm.

FACTS

On May 6, 2000, Bell, an employee of Wireline Specialists of Louisiana, Inc., and three co-workers were transported by the M/F Q.B. to the fixed platform, South Tim-balier 211, which was owned by IP Petroleum Company, Inc. Upon reaching the platform, the M/V Q.B. tied off to a buoy so that the Wireline crew and equipment could be off-loaded in a personnel basket via a crane located on the platform. The crane was operated by an employee of Operators & Consulting Services, Inc. During the transfer, the personnel basket was jerked up and spun out of control, hitting equipment located on the deck of the vessel and the vessel’s cabin. It jerked up again and then dropped down hitting the deck of the vessel, causing the crew to spill out onto the deck, with one person falling into the water. At the time of the incident, which happened at approximately 4:30 a.m., the seas were running at six to eight feet. As a result of this incident, Bell suffered injuries to his neck and lower back.

Bell filed the instant suit on April 12, 2001, naming IP Petroleum, Operators & Consulting, and American International Group as defendants. On June 18, 2001, Bell amended his petition to name National Union Fire Insurance Company |2of Louisiana, Operators & Consulting’s liability insurer, as a defendant in place of American International. Bell amended his petition again on December 21, 2004, to add as a defendant, Gulf Tran, Inc., who it alleged was the owner of the M/V Q.B. On April 13, 2005, he once again amended his petition and named Mark & Emmett as the owner of the M/V Q.B., in place of Gulf Tran. In answering this petition, Mark & Emmett affirmatively pled, among other defenses, that Bell’s claims against it had prescribed. Thereafter, Mark & Emmett filed a peremptory exception of prescription pursuant to the Uniform Statute of Limitations for Maritime Torts, 46 App. U.S.C.A. § 768(a). Following a hearing on the exception, the trial court took the matter under advisement and then rendered a judgment sustaining Mark & Emmett’s exception and dismissing Bell’s claims with prejudice. This appeal followed.

ISSUES

On appeal, Bell argues that the trial court abused its discretion by failing to expressly state that there was no just reason to delay the immediate appeal of this judgment pursuant to La.Code Civ.P. art. 1915(B)(1). Next, he argues that the trial court erred in finding that general maritime law applied to the facts of this matter and that his claims against Mark & Emmett were prescribed.

FINAL JUDGMENT

The trial court rendered judgment in this matter on April 5, 2006. The judgment is titled, “Final Judgment,” but otherwise does not conform to Article 1915(B). This failure forms the basis of Bell’s first assignment of error, as he claims that the trial court abused its discretion by failing to expressly state that there was no just reason to delay an immediate appeal.

| 3Louisiana Code of Civil Procedure Article 1915(B) provides:

(1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, reeon-ventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

In this instance, although the trial court’s judgment is designated as a final judgment, it contains no express determination that the judgment qualifies for an immediate appeal. In accordance with R.J. Messinger, Inc. v. Rosenblum, 04-1664 (La.3/2/05), 894 So.2d 1113, we conducted a de novo review of the record to determine whether the trial court properly designated this appeal as a final judgment. After such review of the record, we find that the trial court was correct in designating its judgment as a final judgment. As it dismisses all of Bell’s claims against Mark & Emmett, but has no effect on his claims against the remaining defendants, we find that certification of this judgment as a final judgment was correct and that this appeal is properly before us. Accordingly, we find no merit to this assignment of error.

STANDARD OF REVIEW

This matter was raised pursuant to a peremptory exception of prescription. Louisiana Civil Code of Procedure Article 931 provides that evidence may be introduced in support of the peremptory exception when the grounds do not |4appear on the face of the pleadings. If evidence is introduced in support of the exception of prescription, the findings of the trial court are factual in nature and are reviewed on appeal subject to the manifest error— clearly wrong standard of review. London Towne Condominium Homeowner’s Ass’n v. London Towne Co., 06-0401 (La.10/17/06), 939 So.2d 1227.

GENERAL MARITIME LAW

In his second assignment of error, Bell argues that the trial court erred in finding that general maritime law applied to his claim against Mark & Emmett and that his claim against it had prescribed. He argues that the accident occurred on a fixed platform, thus, under the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. § 1331, Louisiana law would apply to interrupt the tolling of prescription on his negligence claim against Mark & Emmett. We disagree.

In Strong v. B.P. Exploration & Production, Inc., 440 F.3d 665, 668-69 (5th Cir.2006)(alteration in original), the court stated:

Three conditions must be met before state law is adopted as surrogate federal law under OCSLA: “(1) The controversy must arise on a situs covered by OCSLA (i.e. the subsoil, seabed, or artificial structures permanently or temporarily attached thereto). (2) Federal maritime law must not apply of its own force. (3) The state law must not be inconsistent with [fjederal law.” Union Tex. Petroleum Corp. v. PLT Eng’g, Inc., 895 F.2d 1043,1047 (5th Cir.1990)....
Under federal maritime law, “a suit for recovery of damages for personal injury or death, or both, arising out of a maritime tort, shall not be maintained unless commenced within three years from the date the cause of action accrued.” 46 App. U.S.C. § 763a.

In Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995), the United States Supreme Court laid out the two-part test utilized to determine whether a tort is maritime in nature and within the admiralty jurisdiction. |B The first test, location, is satisfied if the tort occurred on navigable waters or if the injury suffered on land was caused by a vessel on navigable waters. The second test, whether the tort bears a significant connection to a traditional maritime activity, consists of two prongs:

A court, first, must “assess the general features of the type of incident involved,” [Sisson v. Ruby; ] 497 U.S. [358,] 363, 110 S.Ct. [2892,] 2896[, 111 L.Ed.2d 292] [1990], to determine whether the incident has “a potentially disruptive impact on maritime commerce,” id., at 364 n. 2, 110 S.Ct. [at] 2896, n. 2. Second, a court must determine whether “the general character” of the “activity giving rise to the incident” shows a “substantial relationship to traditional maritime activity.” Id., at 365, 364, and n. 2, 110 S.Ct., at 2879[2896], 2896[2897], and n. 2.

Id. at 534, 115 S.Ct. at 1048 (quoting Sisson v. Ruby, 497 U.S. 358, 363-65, 110 S.Ct. 2892, 2896, 111 L.Ed.2d 292 (1990)).

After reviewing the evidence, we find no error in the trial court’s factual finding that the alleged negligence occurred on navigable waters. Although Bell argues that he was injured while on the fixed platform, the trial court found otherwise. This finding is reasonable based on the evidence that Bell, although lifted off of the vessel’s deck, was injured when he hit equipment on the deck, the cabin, and was thrown onto the vessel’s deck. Consequently, he never made it off of the M/V Q.B. and onto the fixed platform. Accordingly, it was reasonable for the trial court to find that Bell’s injuries occurred on navigable waters, rather than on a fixed platform. Thus, the location test is satisfied.

As in Strong, this matter turns on whether “the allegedly tortious activity is ‘so closely related to activity traditionally subject to admiralty law that the reasons for applying special admiralty rules would apply in the suit at hand.’ ” Grubart, 539, 115 S.Ct. at 1043.

| fJn his original petition, Bell alleged the following:

At the time Petitioner and other crew-members were being discharged from the crew boat, the crew boat was being operated in an unsafe and negligent manner, which in turn contributed to the accident. In addition, the crew boat was unseaworthy, or unreasonably fit for its intended service, because it was outfitted with incompetent crew, who were unable to operate the boat in a safe manner during the discharge of personnel.

In his April 13, 2005 fourth supplemental and amending petition (incorrectly titled “THIRD SUPPLEMENTAL AND AMENDING PETITION FOR DAMAGES”), Bell added Mark & Emmett as a defendant in his suit. Here, in addition to reurging all of the allegations from his previous petitions, Bell alleged:

... In addition, the vessel, “M/V Q.B.” was owned and operated by defendant, MARK & EMMETT MARINE, INC., and her pilot and/or captain was employed by defendant, MARK & EMMETT MARINE, INC.; therefore, MARK & EMMETT MARINE, INC., is liable for all acts of negligence committed in operation of the vessel as well as for any unseaworthy condition of the vessel, “M/V Q.B.”

He further alleged that Mark & Emmett was negligent in the following manners:

B. MARK & EMMETT MARINE, INC.

1. Failing to maintain control of the vessel, “M/V Q.B.” during personnel offloading;
2. Failing to secure the vessel, “M/V Q.B.” prior to offloading personnel; and
3. Any other act or omission which may be learned through discovery which constitutes fault under the laws of the State of Louisiana and/or the general maritime law.

General maritime law is settled that a shipowner owes the duty of exercising reasonable care towards persons lawfully aboard its vessel, who are not members of the crew. Kermarec v. Compagnie Generate Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959); Quinn v. St. Charles Gaming Co., Inc., 01-794 (La.App. 3 Cir. 2/6/02), 815 So.2d 963. Included in this duty is the provision of a safe manner 17of ingress and egress. Lopez v. Marine Drilling Co., 02-1223 (La.App. 3 Cir. 10/22/03), 859 So.2d 850, writ denied, 04-95 (La.3/19/04), 869 So.2d 856. As Bell’s allegations pertain to traditional maritime torts, we find that general maritime law applies of its own force. Accordingly, the trial court did not err in finding that general maritime law preempted the application of the OCSLA and through it, Louisiana law.

Finding no error in the trial court’s application of general maritime law, we further find no error in the its judgment finding that Bell’s claims against Mark & Emmett were prescribed pursuant to the Uniform Statute of Limitations for Maritime Torts, 46 App.U.S.C.A. § 763(a).

CONCLUSION

Based on the foregoing findings, the judgment of the trial court sustaining the peremptory exception of prescription in favor of the defendant-appellee, Mark & Emmett Marine, Inc., is affirmed. The costs of this appeal are assessed to the plaintiff-appellant, Jessie Bell.

AFFIRMED.


author: CARLSON, Justice,

text:
    ROGERS-DABBS CHEVROLET-HUMMER, INC. v. Keith BLAKENEY, Individually and on Behalf of Southern Industrial Contractors, Inc.
    No. 2005-IA-00125-SCT.
    Supreme Court of Mississippi.
    Feb. 22, 2007.

      Craig Lawson Slay, Brandon, attorney for appellant.
    Mark K. Tullos, Raleigh, Craig N. Orr, Laurel, attorneys for appellees.
    Before WALLER, P.J., CARLSON and RANDOLPH, JJ.
   CARLSON, Justice,

for the Court.

¶ 1. Although the trial court granted the defendant’s motion to compel arbitration as to one count in a multi-count complaint, the trial court denied the defendant’s motion to compel arbitration as to the remaining counts. From this order denying the motion to compel as to all counts in the complaint, the defendant petitioned us for an interlocutory appeal, which we granted. Finding no error, we affirm the order denying arbitration entered by the Circuit Court for the Second Judicial District of Jasper County.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On or about May 30, 2003, Keith Blakeney, on behalf of Southern Industrial Contractors, Inc. (SIC), purchased a new 2003 Hummer H-2 (VIN 5GRGN23U33H120356) from Rogers-Dabbs Chevrolet-Hummer, Inc. (Rogers-Dabbs). As part of the transaction, Blake-ney paid Rogers-Dabbs $64,324 in cash and signed several documents including the arbitration documents in dispute today. We will in due course set out in detail the provisions of the arbitration agreement at issue here.

¶ 3. Blakeney alleges that soon after purchasing the Hummer H-2 from Rogers-Dabbs, he started experiencing mechanical problems with the vehicle. More importantly, Blakeney asserts he never received the title to the vehicle. In fact, Blakeney contends that to date he still does not have the title to the Hummer H-2 that he purchased from Rogers-Dabbs. Furthermore, Blakeney alleges that in September 2003, he was informed that a stolen Hummer H-2 with a Mississippi replacement title containing the VIN to his Hummer H-2, along with his name and SIC’s name, had been recovered in the State of Georgia. Blakeney contends that the documents received by the Georgia dealer bear Blakeney’s forged signature.

¶ 4. Therefore, on March 23, 2004, Blakeney, individually and on behalf of SIC, filed suit against Rogers-Dabbs, General Motors Corporation and John Does 1-25 in the Circuit Court for the Second Judicial District of Jasper County, Mississippi. The complaint contained five counts alleging against the defendants: (1) breach of warranty; (2) invasion of privacy; (3) negligent hiring and supervision; (4) civil fraud; and (5) intentional and negligent infliction of emotional distress and mental anguish. Blakeney sought actual damages of $1,000,000 and punitive damages of $10,000,000. The complaint alleged, inter alia, that Rogers-Dabbs negligently allowed at least one of its employees to use Blakeney’s name in furtherance of an ongoing criminal enterprise.

¶ 5. Specifically, Blakeney asserted that he had become aware that stolen vehicles had been sold to unsuspecting buyers with his name being used on the forged vehicle titles and bills of sale. The complaint further asserted that Blakeney had never received the title to the Hummer H-2, although Blakeney paid for the vehicle in cash. Blakeney contended that one or more employees of Rogers-Dabbs stole Blakeney’s title to the Hummer H-2 and used the title, along with Blakeney’s VIN, to obtain forged titles to stolen vehicles.

¶ 6. Blakeney likewise asserted a claim of civil fraud. Blakeney specifically alleged that Rogers-Dabbs, through its agents and/or employees, used Blakeney’s private information and identity for its pecuniary gain, all to the detriment of Blake-ney individually and in his corporate capacity. In particular, Blakeney contended that Rogers-Dabbs used Blakeney’s identities, personal and corporate, in furtherance of an ongoing criminal enterprise.

¶ 7. Twenty-eight days later, on April 20, 2004, prior to any responsive pleading being filed by an adverse party, Blakeney filed a notice of voluntary dismissal without prejudice, as to General Motors. See Miss. R. Civ. P. 41(a)(1)®. Notwithstanding the Rule 41 dismissal as to General Motors, both General Motors and Rogers-Dabbs, on April 28, 2004, filed a Joint Motion to Dismiss, Or In the Alternative, Transfer Case for Lack of Venue, Or In the Alternative, Motion to Compel Arbitration. On December 22, 2004, the trial court entered an order granting the motion to compel arbitration as to count one (breach of warranty), but denied arbitration as to the remaining counts. On January 14, 2005, the trial court entered its order denying Rogers-Dabbs’s Motion for Certification of Interlocutory Appeal and for Stay of Proceedings. Miss. R.App. P. 5.

¶8. By order entered on January 20, 2005, the trial court, over opposition from Rogers-Dabbs, granted Blakeney’s motion to amend complaint, which motion had been filed prior to the trial court’s entry of its order denying certification for an interlocutory appeal. The main difference between the complaint and the amended complaint was the elimination of General Motors as a defendant and any reference to the breach of warranty claim.

¶ 9. Likewise, on January 20, 2005, Rogers-Dabbs filed with this Court its Petition for Interlocutory Appeal pursuant to Miss. R.App. P. 5(a) and a Motion for Stay of Proceedings in Lower Court. By order entered on February 9, 2005, a three-justice panel of this Court granted Rogers-Dabbs’s petition for interlocutory appeal and stayed the trial court proceedings pending the resolution of this appeal.

DISCUSSION

¶ 10. Rogers-Dabbs asserts that Blake-ney agreed to have all his claims resolved by arbitration; that arbitration agreements are presumptively valid; that the prerequisites under the Federal Arbitration Act (FAA) are satisfied; and that Blakeney is bound by the terms of the arbitration agreement. On the other hand, Blakeney asserts that, pursuant to the provisions of the Uniform Commercial Code (Miss.Code Ann. §§ 75-1-101 et seq. (Rev.2002)), he revoked acceptance of the Hummer due to nonconformity which substantially impaired the value of the vehicle; that he did not agree to have claims involving identity theft and forgery resolved by arbitration inasmuch as such claims were not contemplated by the arbitration agreement; that the FAA prerequisites are not satisfied; and that the arbitration agreement at issue is proeedurally unconscionable. Although the parties obviously state the issues in different ways, we combine these issues and restate what we deem to be today’s critical issue for clarity in discussion.

WHETHER THE TRIAL COURT ERRED IN DENYING ROGERS-DABBS’S MOTION TO COMPEL ARBITRATION AND TO STAY PROCEEDINGS.

¶ 11. “The grant or denial of a motion to compel arbitration is reviewed de novo.” East Ford, Inc. v. Taylor, 826 So.2d 709, 713 (Miss.2002) (citing Webb v. Investacorp, Inc., 89 F.3d 252, 256 (5th Cir.1996)).

¶ 12. The Federal Arbitration Act dictates that arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2 (1947). In fact, the Act established a strong federal policy favoring arbitration. Therefore, in order to determine the “validity of a motion to compel arbitration under the Federal Arbitration Act, courts generally conduct a two-pronged inquiry.” East Ford, 826 So.2d at 713. Under the first prong, the court should determine whether the parties have agreed to arbitrate the dispute. Id. In order to determine if the parties have agreed to arbitrate the dispute, two considerations are taken into account: “(1) whether there is a valid arbitration agreement and (2) whether the parties’ dispute is within the scope of the arbitration agreement.” Id. If the court determines that the parties did in fact agree to arbitrate their dispute, the second prong is applied. The United States Supreme Court has instructed that the second prong is “whether legal constraints external to the parties’ agreement foreclosed arbitration of those claims.” Id. (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)).

¶ 13. Addressing the first prong outlined in East Ford, Rogers-Dabbs argues that the parties here agreed to arbitrate the issues presented in today’s case in that there is a valid arbitration agreement and that Blakeney’s claims fall squarely within that arbitration agreement. On the other hand, Blakeney contends that, while there is a valid arbitration agreement, the claims asserted by him are not within the scope of the arbitration agreement which Blakeney signed in his personal capacity and in his official capacity as president of SIC. We set out here in its entirety the provisions of the contract relating to arbitration:

ARBITRATION DISCLOSURES. The following disclosures have been made to you in connection with a transaction between yourself and the Dealer which transaction is described in the Arbitration Agreement between the Dealer and you dated this date:
1. The Dealer and you have the right to request Arbitration. Arbitration is procedure (sic) in which the Dealer and you select and (sic) Arbitrator who will hear our presentation and render a final and binding decision. There are administrative and arbitration fees which must be paid by the parties in accordance with the provisions of the Arbitration Agreement.
2. Arbitration is usually final and binding on the parties and subject to only very limited (sic) by a court.
3. The Dealer and you are waiving your right to litigate in court, including your right to a jury trial because each party has the right to demand arbitration.
4. Pre-arbitration discovery is generally more limited and different from court proceedings.
5. An Arbitrator’s award is not required to include factual findings or legal reasoning and the Dealer’s and your right to appeal or to seek modification of an Arbitrator’s ruling is strictly limited.
6. You understand completely that you may be required to pay the arbitrator’s fees and the fees charged by the American Arbitration Association before you are allowed to initiate the arbitration, and you further understand that there is a risk that you will not recover the fees that you are required to pay up front in order to initiate the arbitration.
7. By signing this Arbitration Agreement, you acknowledge and agree that neither the Dealer nor Dealer’s employees have forced you to enter into this Arbitration Agreement. You acknowledge and agree that you have signed this Arbitration Agreement knowingly and voluntarily.
ARBITRATION AGREEMENT
Customer acknowledges and agrees that the Vehicle Customer is purchasing or leasing from Rogers-Usry Chevrolet (“Dealer”) has traveled in interstate commerce. Customer thus acknowledges that the vehicle and other aspects of the sale, lease or financing transaction are involved in, affect, or have a direct impact upon, interstate commerce. Customer and Dealer agree that all claims, demands, disputes or controversies of every kind or nature between them arising from, concerning or relating to any of the negotiations involved in the sale, lease or financing of the vehicle; the terms and provisions of the sale, lease, or financing agreements; the arrangements for financing; the purchase of insurance, extended warranties, service contracts or other products or services purchased or obtained as an incident to the sale; lease or financing of the vehicle; the performance or condition of the vehicle; or any other aspect of the vehicle and its sale, lease, or financing shall be, at the request of either party, settled by binding arbitration conducted pursuant to the provisions of the Federal Arbitration Act, 9 U.S.C. Section 1, et seq. and according to the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). Without limiting the generality of the foregoing, it is the intention of the Customer and the Dealer when so requested by either party, to resolve by binding arbitration all disputes between them concerning the vehicle, its sale, lease, or financing, and its condition, including disputes concerning the terms and conditions of the sale, lease or financing, the condition of the vehicle, any damage to the vehicle, the validity, enforceability or interpretation of any of the documents signed or given in connection with the sale, lease or financing (including, without limitation, this agreement to arbitrate), any representations, promises or omissions made in connections (sic) with negotiations for the sale, lease, or financing of the vehicle, or any terms, conditions, representations or omissions made in connection with the financing, credit life insurance, disability insurance, vehicle extended warranty or service contract or other products or services acquired as an incident to the sale, lease or financing of the vehicle. Either party may demand arbitration by filing with the American Arbitration Association a written demand for arbitration along with a statement of the matter or controversy. A. copy of the demand for arbitration shall simultaneously be served upon the party.' The customer and the Dealer agree that the arbitration proceedings to resolve all such disputes shall be conducted in the city where the Dealer’s facility is located. Customer and Dealer further agree that any question regarding whether a particular controversy is subject to arbitration shall be decided by the Arbitrator. []
The institution and maintenance of an action for judicial relief or pursuit of a provisional and ancillary remedy shall not constitute a waiver of the right of either party, including the plaintiff, to submit the controversy or claim to arbitration if any other party contests such action for judicial relief. No provisions of this Agreement shall limit the right of any party to this Agreement to exercise self-help remedies such as the right to repossess and sell any personal property, collateral or security, or to obtain provisional or ancillary remedies from a court of competent jurisdiction before, after, or during the pendency of any arbitration or other proceeding.[] The exercise of any available remedy does not waive the right of either party to resort to arbitration.
To the extent permitted by applicable law, all proceedings pursuant to or in connection with this Agreement shall be kept strictly confidential, except for disclosures of information required in the ordinary course of business of either party or by applicable law or regulation. This provision does not exempt from discovery or use in any other or future action any evidence otherwise discoverable merely because it is presented in, referred to, or discussed in the course of, or in connection with, proceedings pursuant to this Agreement.
This Agreement shall be binding upon, and shall inure to the benefit of, the parties, any co-signers, endorsers, guarantors, or other obligors to the sale, lease or financing transaction covered by this Agreement, as well as their respective successors and assigns.
This Agreement is binding upon, and inures to the benefit of, Customer and Dealer and the officers, employees, agents and affiliated entities of each of them. This Agreement will survive payment of Customer’s obligations and any termination, cancellation or performance of the transactions between Customer and Dealer. This Agreement specifically contemplates that Customer and dealer may execute additional contracts to finance the sale or lease of a vehicle by Dealer to Customer or for other purposes, and this Agreement is not terminated, supplemented or replaced by any future agreements between Customer or Dealer concerning the vehicle.
CUSTOMER AND DEALER UNDERSTAND THAT THEY ARE AGREEING TO RESOLVE THE DISPUTES BETWEEN THEM DESCRIBED ABOVE BY BINDING ARBITRATION, RATHER THAN BY LITIGATION IN ANY COURT.
/s¿_05/30/03 /s/ 05/30/03
Customer Dealer

¶ 14. Rogers-Dabbs asserts that the phrase “all claims, demands, disputes or controversies” specifically covers Blake-ney’s claims, because all claims originate from the sale of the vehicle and relate to the sale. However, Blakeney contends the arbitration agreement is unconscionably broad. In particular, Blakeney contends in his brief to this Court that no consumer in an arms-length negotiation, absent duress, would contract away his constitutional rights to judicial redress and a jury trial when making a purchase if he believed it gave the merchant the green light to commit fraud, forgery, and identity theft, while at the same time precluding the consumer from having his day in court.

¶ 15. It should be noted that “[ajrbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” EquiFirst Gory. v. Jackson, 920 So.2d 458, 461 (Miss.2006) (citing Pre-Paid Legal Services, Inc. v. Battle, 873 So.2d 79, 83 (Miss.2004) (quoting AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986))). Also, in construing contracts, a general rule is to give effect to the mutual intentions of the parties contracting. Eight v. Sheppard Bldg. Supply Inc., 537 So.2d 1355,1358 (Miss.1989).

¶ 16. In addressing the two-fold considerations under the first prong (whether the parties agreed to arbitrate the dispute), Blakeney makes no serious contention that there was no valid arbitration agreement, so we will instead focus on the second consideration under the first prong, which is whether the parties’ dispute is within the scope of the arbitration agreement. East Ford, 826 So.2d at 713. Without considering the veracity of the well-pled allegations of Blakeney’s complaint, which obviously would be subject to proof, we simply consider what Blakeney contends to be the facts surrounding his purchase of the 2003 Hummer. Blakeney contends that he paid more than $64,000 in cash to Rogers-Dabbs in order to get a new Hummer, lien-free. Blakeney asserts, inter alia, that he instead received a Hummer to which he has yet to this day received a title; that Rogers-Dabbs’s employees have engaged in a scheme of using Blakeney’s name to forge vehicle titles and bills of sale to sell stolen vehicles; and that Rogers-Dabbs has committed civil fraud against him by misappropriating his title to the Hummer he purchased and forging his name on “numerous fake titles and bills of sale” on various stolen vehicles. These allegations are the genesis for Blakeney’s claims of invasion of privacy, negligent hiring and supervision, civil fraud, and intentional and negligent infliction of emotional distress and mental anguish.

¶ 17. We have made it clear in prior cases that, when we are called upon to consider whether legal constraints exist external to the agreement which might invalidate the arbitration provisions, the existence of fraud in the formation of the contract may be considered. Cleveland v. Mann, 942 So.2d 108, 112 (Miss.2006); MS Credit Center, Inc. v. Horton, 926 So.2d 167, 175 (Miss.2006); Vicksburg Partners, L.P. v. Stephens, 911 So.2d 507, 513-14 (Miss.2005) (citing Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 1656, 134 L.Ed.2d 902 (1996)); Pitts v. Watkins, 905 So.2d 553, 555 (Miss.2005). However, today’s case does not involve a claim of fraud in the inducement of the formation of the contract containing the arbitration clause, all in an effort to invalidate the arbitration agreement; instead, today’s case involves the claim of civil fraud totally outside the formation of the agreement. While Blakeney no doubt agreed to arbitrate claims that originated from the sale of the vehicle or related to the sale of the vehicle, no reasonable person would agree to submit to arbitration any claims concerning a Hummer to which he would never receive a title; a scheme of using his name to forge vehicle titles and bills of sale to sell stolen vehicles; and the commission of civil fraud against him by misappropriating his title to the Hummer he purchased and forging his name on fake titles and bills of sale on various stolen vehicles — actions of which Blakeney was presumedly totally unaware at the time of the execution of the documents in question, including the arbitration agreement.

¶ 18. Since Rogers-Dabbs fails to satisfy the first prong of East Ford (whether the parties have agreed to arbitrate the dispute), the second prong (whether legal constraints external to the agreement foreclosed arbitration of the particular claims) need not be discussed. Likewise, based on the disposition of this issue, we deem it unnecessary to consider the other issues raised on appeal.

¶ 19. Consistent with what we stated in Pass Termite & Pest Control v. Walker, 904 So.2d 1030, 1036 (Miss.2004), we are of the firm opinion that today’s decision in no way undermines what is now a long line of cases from this Court undergirding the federal policy favoring arbitration. However, today’s record clearly reveals that the dispute before us was not within the scope of the arbitration agreement; therefore, we are constrained to find that when entering into the arbitration agreement, the parties did not agree to arbitrate this particular dispute.

CONCLUSION

¶ 20. The enactment of the Federal Arbitration Act emphasizes that federal law strongly favors arbitration. However, where an arbitration agreement does not cover the claims asserted, as is the case here, then the Federal Arbitration Act is not offended by permitting a full trial on the merits. Therefore, we find that the trial court did not err in denying arbitration as to Counts II-V, inclusive, of Blake-ney’s complaint. Thus, the judgment of the Circuit Court for the Second Judicial District of Jasper County is affirmed and this case is remanded for further proceedings consistent with this opinion.

¶ 21. AFFIRMED AND REMANDED.

WALLER AND COBB, P.JJ., EASLEY, DICKINSON AND RANDOLPH, JJ„ CONCUR. DIAZ AND GRAVES, JJ., CONCUR IN RESULT ONLY. SMITH, C.J., NOT PARTICIPATING.

      . For the sake of clarity, Keith Blakeney and Southern Industrial Contractors, Inc. will be referred to simply as "Blakeney.”

      . Blakeney describes it this way in his pleadings: "Plaintiff's identities, both corporate and individual, were wrongfully appropriated as a result of Plaintiff’s dealings with the Defendant and its employees. Plaintiff's identities were then used to obtain a replacement title to the vehicle purchased from the Defendant, Rogers Dabbs. Said replacement title, along with a forged bill of sale, was then used in an attempt to sell a stolen Hummer H-2 in the State of Georgia. Such conduct by the Defendant and/or its employees was not only unlawful under the laws of the State of Mississippi, but also constitute a civil fraud perpetrated against the Plaintiff by the Defendant.”

      . Blakeney is the President of SIC.

      . Effective December 9, 2004, as to trial court orders entered from and after March 1, 2005, the provisions of Miss. R.App. P. 5(a) and 5(b) were amended to eliminate the requirement of seeking trial court certification of an interlocutory appeal to this Court. However, since the trial court entered its order ruling on the motion for certification of an interlocutory appeal prior to March 1, 2005, such entry of an order by the trial court was consistent with the rule as it then existed.

      . The issue of whether the arbitrator, as opposed to the court, should decide arbitrability is not before us.

      . While Blakeney argues unconscionability, he does not attack this particular provision of the arbitration agreement, which is obviously one-sided in favor of Rogers-Dabbs. The exercise of self-help remedies in court is a right which, as a matter of practicality, belongs only to Rogers-Dabbs, and Blakeney enjoys no similar rights of seeking judicial redress. See, e.g., Vicksburg Partners, L.P. v. Stephens, 911 So.2d 507, 523-24 (Miss.2005).

      . Blakeney's first amended complaint added (in the place of the original breach of warranty claim) the statutory revocation of contract pursuant to the Uniform Commercial Code. Because of the disposition of today’s case, we need not address this claim, which was also asserted by Blakeney as an issue on appeal.

      . Of course, this goes to the second prong ("legal constraints external to the agreement”) discussed in East Ford, 826 So.2d at 713-17. Because of our disposition of today's case, we do not reach this second prong.

      . So that there is no misunderstanding, we are fully aware of our recent decision in Greater Canton Ford Mercury, Inc. v. Abies, 948 So.2d 417 (Miss.2007), wherein we found that because the express provisions of the arbitration agreement stated that the issue of arbitrability was to be determined by an arbitrator, we must honor this agreement between the parties, notwithstanding the fact that the issue of arbitrability is generally considered one to be determined by the courts. Greater Canton, 948 So.2d 417, ¶ 12, ¶ 21. In Greater Canton, we also determined that comity required us to defer to the Fifth Circuit's decision in related litigation concerning the separate motion to compel arbitration filed by Ford Motor Company. Greater Canton, 948 So.2d 417, ¶1¶ 22-26. See Ford Motor Co. v. Abies, 207 F.Appx. 443, 2006 U.S.App. LEXIS 29347 (5th Cir.2006). Thus, Greater Canton is clearly distinguishable from today’s case. We have consistently followed the principle that "applicable contract defenses available under state contract law such as fraud, duress, and unconscionability may be asserted to invalidate the arbitration agreement without offending the Federal Arbitration Act.” East Ford, Inc. v. Taylor, 826 So.2d 709, 713 (Miss.2002) (citing Doctor's Assocs., Inc. v. Casarot-to, 517 U.S. 681, 686, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996)). We wholeheartedly stand behind that proposition today. However, today’s case does not involve fraud in the inducement of the arbitration agreement; therefore, the arbitration agreement is valid and enforceable. Blakeney's claim of fraud in the underlying suit is civil fraud outside the scope of the arbitration agreement. Our holding in today’s case, in effect, upholds the arbitration agreement as a valid agreement, but determines that Blakeney's claims are outside the scope of the arbitration agreement. Thus, we are finding that Blakeney is not obligated to arbitrate Counts II, III, IV or V. To illustrate this point, the trial judge granted Defendant’s Motion to Compel Arbitration as to Count I (breach of warranty), thereby revealing that the arbitration agreement was still in force. By no means are we invalidating the arbitration agreement on the account of Blakeney asserting fraud; we are excluding from arbitration the claims which Blakeney asserts are outside the scope of this particular arbitration agreement; thus, failing to meet the first prong of East Ford.


author: RANDOLPH, Justice,

text:
    Christopher JOHNSON a/k/a Chris Johnson v. STATE of Mississippi.
    No. 2005-KA-02261-SCT.
    Supreme Court of Mississippi.
    March 1, 2007.

      M.A. Bass, Jr., attorney for appellant.
    Office of the Attorney General by Desh-un Terrell Martin, attorney for appellee.
    Before SMITH, C.J., CARLSON and RANDOLPH, JJ.
   RANDOLPH, Justice,

for the Court.

STATEMENT OF THE CASE

¶ 1. On November 1, 2005, Christopher Johnson (“Johnson”) was indicted by a Co-piah County Grand Jury for the sale of cocaine pursuant to Miss.Code Ann. § 41-29-139 (Rev.2005). Johnson entered a plea of not guilty.

¶ 2. On November 27, 2005, Johnson was offered a plea agreement for a sentence of eight years, with two years suspended and six years to serve. Johnson rejected this plea agreement. On the day of trial, Johnson was offered a different plea agreement for a sentence of ten years, with six years suspended and only four years to serve. Johnson rejected the second plea offer. Johnson’s signature acknowledged that he understood that when he rejected the plea agreements, he would be tried, and if convicted, he could be sentenced to serve thirty years and receive a fine of up to one million dollars.

¶ 3. Johnson exercised his right to a jury trial. After the State rested, Johnson moved for a directed verdict, arguing that the State failed to make a prima facie case. This motion was denied. Upon completion of trial, Johnson was found guilty of the sale of cocaine. The trial judge ordered a pre-sentencing investigation before sentencing Johnson. After the results of this investigation were presented, the court sentenced Johnson to thirty years, with eighteen years to serve, twelve years suspended, with post-release supervision for five years. Subsequent to sentencing, Johnson filed a Motion for New Trial, which was denied by the trial judge. Subsequently, Johnson filed this appeal, and Johnson presents the following issues:

1) The trial court erred in not granting Johnson’s Motion for Directed Verdict, as the verdict was against the overwhelming weight of the evidence and was a result of bias, prejudice and passion.
2) That a sentence of thirty years, eighteen years to serve, with twelve years suspended, with five years of post-release supervision, is tantamount to a life sentence.

STATEMENT OF THE FACTS

¶ 4. The Mississippi Bureau of Narcotics (“MBN”) was conducting a drug investigation in Copiah County, Mississippi, with the use of an undercover agents, Agent l, and a confidential informant, (“Cl”). The agent in charge of the investigation, Agent 2, had approximately twenty years of experience.

¶ 5. The Cl was a Coded Confidential Informant, which meant he was not assisting the MBN in order to gain a reduced sentence for a crime, but rather was paid for his services. During his testimony, the Cl admitted an adjudication of a misdemeanor when he was a minor, which involved the theft of apparel and sporting goods.

¶ 6. According to Agent 2’s testimony, the Cl knew people in the community and was serving because he “was just a good citizen that want[ed] to do [his] part, want to come in and do what [he] can.” The Cl was paid each time he performed services, although Agent 2 testified that the Cl originally was surprised to learn he would be compensated for his services. He was paid differing amounts depending on the type of drugs and participants involved. Agent 2 testified he had no reason to believe the Cl needed the money, as he owned a vehicle and a business.

¶ 7. The Cl informed the MBN he could introduce them to Johnson-that Johnson would sell the Cl crack cocaine. On April 27, 2005, an investigation involving Johnson was conducted. The Cl was wired with a device to record the transaction and to allow a surveillance team to listen in on the transaction. The MBN gave the Cl money to purchase the cocaine.

¶ 8. There is a discrepancy in testimony as to whether the Cl called Johnson or Johnson called the Cl. Nonetheless, a telephone conversation took place between the Cl and Johnson. The Cl and Johnson arranged to meet on Adams Street Extension in Crystal Springs, Mississippi. Agent 2 met with the Cl and Agent 1. Agent 2 performed a standard “pre-buy” procedure wherein he thoroughly searched the Cl’s person and vehicle. This was to ensure the integrity of the transaction and to make sure the confidential informant had no money, weapons, narcotics or other contraband prior to the transaction with the suspect. The Cl drove his vehicle with Agent 1 in the passenger seat to the designated location. The Cl testified Johnson walked up and climbed into the back seat of his vehicle. Agent 1 testified she had the impression that Johnson and the Cl already knew each other. Johnson produced the narcotics and the Cl inspected them. Upon inspection, the Cl told Johnson these drugs “were not the real deal” and told Johnson to call him when he could get “real crack cocaine.” Agent 2 testified the Cl had received training to identify narcotics.

¶ 9. Agent 1 and the Cl returned to their “pre-buy” location, where the Cl received a telephone call from Johnson stating he now had “real crack cocaine.” The Cl and his vehicle were searched again using the same pre-buy procedure, and he was again outfitted with a recording device.

¶ 10. Agent 1 and the Cl returned to the same buy location. Johnson entered the vehicle and sat in the back seat. Johnson produced a Ziploc bag containing crack cocaine. The Cl paid Johnson $200 for it, with Agent 1 witnessing the transaction. Agent 1 testified that Johnson stood out in her mind because he was so young and because this was her first crack cocaine buy, as she previously was assigned to crystal methamphetamine buys.

¶ 11. Although the Cl testified the transaction took only about a minute, the Cl recognized Johnson as the seller, as he had known Johnson and his family for years. He stated unequivocally “there was no doubt in his mind” Johnson was the seller.

¶ 12. After the transaction, Agent 1 and the Cl identified Johnson from a six-person photo lineup. Although Agent 2 was not in the car and did not physically see the purchase take place, he listened to the transaction from the wire placed on the CL An audio of the transaction was introduced into evidence for the jury’s consideration. After the jury returned a verdict of guilty against Johnson, the jury was polled, and all twelve jurors confirmed the verdict of guilty.

¶ 13. At the sentencing hearing, the State presented evidence that Johnson had previously been convicted of the sale of cocaine, and asked that Johnson’s sentence be enhanced to sixty years instead of thirty. Johnson countered that the first sale took place when he was a minor, asking that the court consider his age. The trial court sentenced Johnson to thirty years in prison, with twelve years suspended, and five years of post-release supervision.

ANALYSIS

I. Whether the trial court erred in not granting Johnson’s Motion for Directed Verdict.

In considering whether the evidence is sufficient to sustain a conviction in the face of a motion for judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows beyond a reasonable doubt that accused committed the act charged and that he did so under such circumstances that every element of the offense existed. Bush v. State, 895 So.2d 886, 843 (Miss. 2005). This inquiry does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. If there is sufficient evidence to support a guilty verdict, the motion for a directed verdict must be overruled. May v. State, 460 So.2d 778, 781 (Miss.1984).

Mingo v. State, 944 So.2d 18, 33 (2006).

¶ 14. In arguing Issue I, Johnson offers two arguments. Johnson asserts the witnesses testifying against him were not credible and that, without their testimony, the State failed to present a prima facie case. He unpersuasively argues that the State failed to prove beyond a reasonable doubt that he was the person who sold the cocaine to the Cl and Agent. Therefore, he believes his Motion for Directed Verdict should have been granted or a peremptory instruction should have been given to the jury.

¶ 15. Johnson further asserts that Agent 1 was not credible because she was a new employee of the MBN, having been employed for approximately one month prior to the sale, and had not completed training at the Law Enforcement Academy. The evidence also shows she had a bachelor’s degree in Criminal Justice and been through training by officers at the MBN.

¶ 16. Agent 1 had been on five previous “drug buy” transactions. Agent 1 observed Johnson on two separate occasions the same day. She could identify what clothing he was wearing and commented on his youth. Agent 1 further stated this was her first buy of crack cocaine and her first buy in Copiah County. Therefore, the transaction stood out in her mind. Finally, Agent 1 selected Johnson’s photo out of a six-person lineup.

¶ 17. Johnson also argues that the Cl lacked credibility and competency to testify. Johnson argues the Cl was motivated to testify against Johnson by freedom from criminal charges and money. No evidence was presented to the court to support this assertion.

¶ 18. Agent 2 testified that, other than the offense the Cl committed as a youth, he had no criminal history. Agent 2 stated the Cl was a Coded Confidential Informant and was not acting as an informant in order to gain a reduction or freedom from criminal charges.

¶ 19. Agent 2 further testified that the Cl was employed by his own business, and in Agent 2’s opinion, the Cl was not acting as a confidential informant for the purpose of monetary gain. Other than his assertion the Cl was acting for money, Johnson provided no facts or evidentiary support for the court to consider that the Cl was acting as an informant for monetary gain.

¶20. Agent 2 testified the Cl “was a good Cl,” “one of the better” informants he had worked with. The Cl testified he had nothing personal against Johnson and that it was not easy for him to testify.

¶ 21. The trial judge is the gatekeeper of evidence presented to a jury. The testimony of Agent 1 and that of the Cl was admissible pursuant to Mississippi Rule of Evidence 602, as they had personal knowledge of the matters to which they testified. See M.R.E. 602; see also M.R.E. 104(e). Furthermore, the credibility of these witnesses could have been attacked at trial as “[t]he credibility of a witness may be attacked by any party....” M.R.E. 607. The jurors were instructed, “The court has ruled on the admissibility of the evidence; but, you, the Jury, are the sole judges of the facts. As sole judges of the facts, your exclusive province is to determine what weight and credibility will be assigned the testimony and supporting evidence of each witness.” The judge and jury obviously accepted the credibility of these witnesses, and this Court finds no legal basis to reverse their decision. Furthermore,

Should the facts and inferences considered in a challenge to the sufficiency of the evidence ‘point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,’ the proper remedy is for the appellate court to reverse and render.

Miley v. State, 935 So.2d 998, 1001 (Miss.2006) (citations omitted).

¶ 22. After viewing the tape of the transaction, and hearing the testimony of two MBN agents, a drug analyst from the Mississippi Crime Laboratory, and the Cl, each juror returned a verdict of guilty. The lower court found none of the facts or inferences suggested by Johnson on any element of the offense was such that jurors could not have found him guilty beyond a reasonable doubt. Accordingly, this issue is without merit.

II. Whether a sentence of thirty years, eighteen years to serve, twelve years suspended, with five years of post-release supervision amounts to a life sentence.

As a general rule, when sentences are within the limits of the statute, the imposition of such sentences is within the sound discretion of the trial court and this Court will not reverse them.... Likewise, we have held that providing punishment for crime is a function of the legislature, and, unless the punishment specified by statute constitutes cruel and unusual treatment, it will not be disturbed by the judiciary. Presley v. State, 474 So.2d 612, 620 (Miss.1985). We review sentences in light of the factors articulated by the United States Supreme Court in Solem v. Helm, 463 U.S. 277,103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), only when a threshold comparison of the crime committed to the sentence imposed leads to an inference of “gross disproportionality.” Nichols v. State, 826 So.2d 1288, 1290 (Miss.2002). Generally, sentences that do not exceed the maximum term allowed by statute will not be considered grossly disproportionate and will not be disturbed on appeal. Fleming v. State, 604 So.2d 280, 302-03 (Miss.1992).

Mingo, 944 So.2d at 34.

¶23. Johnson asserts his rights under Article 3, sections 14, 26 and 28 of the Mississippi Constitution and under the 5th, 6th, 8th and 14th Amendments to the United States Constitution have been violated by his sentence. Johnson . argues that the “eighteen years to serve” provision of his sentence is tantamount to a life sentence, considering he is only twenty years of age. Johnson further argues the sentence subjects him to “overcrowding, unsanitary conditions and makes him a victim of physical crimes,” and therefore, is cruel and inhumante].

¶24. Johnson was convicted for the sale of cocaine under Miss.Code Ann. § 41-29-139 and received the maximum sentence of thirty years, albeit twelve years were suspended, and the trial judge did not follow the State’s recommendation to enhance the sentence an additional thirty years. “We have never found a maximum penalty in a drug case — even if the sentences were to run consecutively-to be cruel and unusual punishment.” Braxton v. State, 797 So.2d 826, 829 (Miss.2000) (quoting Herring v. State, 691 So.2d 948, 958 (Miss.1997)). Furthermore, “[i]t is the prerogative of the Legislature to determine the appropriate sentence for crimes” and Johnson’s sentence comes within the purview of the statute. Herring v. State, 691 So.2d 948, 950-51 (Miss.1997).

¶ 25. The sentence imposed by the trial court was within the statutory limitation and was within the sound discretion of the learned trial judge. Further, this Court has previously determined it is the Legislature’s function to determine punishment and, “[w]e have said that thirty years is not cruel and unusual punishment for drug charges,” ie., not violative of the United States or Mississippi Constitution. Bell v. State, 797 So.2d 945, 950-51 (Miss.2001); Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Accordingly, this issue brought by Johnson has no merit.

CONCLUSION

¶ 26. The judgment of the trial court is affirmed.

¶ 27. CONVICTION OF THE SALE OF COCAINE AND SENTENCE OF THIRTY (30) YEARS, WITH EIGHTEEN (18) YEARS TO SERVE, TWELVE (12) YEARS SUSPENDED, WITH POST-RELEASE SUPERVISION FOR FIVE (5) YEARS, WITH CONDITIONS, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, EASLEY, CARLSON, AND DICKINSON, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.

      . Agent 1 and Agent 2, are used for the undercover Mississippi Bureau of Narcotics Agents.


author: GRIFFIS, J.,

text:
    Marvin PARKS, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00092-COA.
    Court of Appeals of Mississippi.
    June 13, 2006.

      Stephanie L. Mallette, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Marvin Parks was convicted of aggravated assault. On appeal, Parks asserts that the trial court erred: (1) in admitting a .22 caliber pistol into evidence, and (2) by denying Parks’ motion for a new trial based on the verdict being against the overwhelming weight of the evidence. We find no error and affirm.

FACTS

¶ 2. On March 1, 2003, Shameka Luckett was shot twice once in the right back of her neck and once in the right side of her back lumbar region. Shameka was treated at the Montfort Jones Memorial Hospital in Kosciusko and was transferred to the University of Mississippi Medical Center in Jackson.

¶3. Luckett and Parks gave different accounts of the events that led up to the shooting. Luckett testified that she and her cousin went to the bingo hall in Kosciusko that night to play bingo. While Luckett was playing bingo, an employee of the bingo hall notified Luckett that she had a phone call in the office. Luckett left the table to take the phone call. Luckett testified that it was Kristian Jones. Jones wanted to know what Luckett was doing and what she was planning to do later on that night.

¶ 4. Luckett testified that she returned to bingo game after she spoke with Jones. She used her cell phone to try and call another friend. Luckett then went outside to let her phone charge and try the call again. According to Luckett, when she went outside the bingo hall, she saw Jones coming toward her. Jones asked her if she could go anywhere, and Luckett responded that she could not. Jones then told her to walk up to the car and Luckett agreed. Luckett said that Jones was driving a two-door, maroon car, without a radio that belonged to Marvin Parks. When she reached the car Luckett testified that Jones pushed her into the car.

¶ 5. After Luckett got in the car, the pair picked up Marvin Parks. After Parks got in the car they stopped at an Exxon station and put gas in the car. They then drove to Demond Howard’s house. Parks went inside. When he returned to the car, Parks said that Howard was not feeling well and they should come back in an hour.

¶ 6. They went to Goodman to a club and some housing projects. Luckett testified that she did not see anyone she knew at the club. At the housing projects, she saw Parks’ brother Red and Michael Johnson.

¶ 7. After leaving the projects, they returned to Demond Howard’s house. Parks got out of the car and knocked on the window. Howard did not come to the door. Luckett testified that she asked Jones to take her home. Luckett said that Jones ignored her request, and Parks drove the car to a dirt road near McAdams High School.

¶ 8. While driving the back roads of Attala County, they had car trouble. They stopped on top of a hill, put water in the car and waited for it to cool down. While the car cooled down Jones and Parks questioned Luckett about a court case in which the three were involved. The court date was nearing. Jones and Parks were interested in whether Luckett knew when the court date was and if she had spoken to her lawyer. Parks then suggested that they walk to his mother’s house which was nearby.

¶ 9. After they left the car and began walking, three other cars drove down a nearby road. Luckett said she heard three gunshots from the direction of the three cars, and then all three drove away. Luckett testified that she was scared and wanted to go back to the car. Luckett said that they all went back to the car, and Parks and Jones did something to the car to get it to crank. Then, they drove toward Luckett’s house but turned down another dirt road near a cemetery. Luck-ett said that Parks and Jones parked the car and walked with her toward her uncle’s house.

¶ 10. While they were walking to Luck-ett’s uncle’s house, Luckett testified that Parks ran up behind her and shot her in the back and shoulder. Luckett testified that she played like she was dead, and Parks “went for my head and clicked the gun three times.” Luckett then identified the gun that the prosecutor produced as the gun Parks used to shoot her. Luckett recognized the gun because it had a white handle and other distinguishable features. Luckett also testified that earlier that evening Parks had fired the gun while they were stopped to let the car cool down.

¶ 11. After Luckett was shot, she went to a nearby house where Kelsey Harmon and his wife let her in and called for help. Luckett told Kelsey Harmon and his wife Vickie that Kristi Jones and Marvin Parks shot her.

¶ 12. Parks offered an entirely different account of the events. Demond Howard testified that Parks and Jones were with him most of the night, and he never saw Luckett. Howard testified that, in the early evening of February 28, he was with his daughter in Durant. Howard stated that he went to their home in Kosciusko around 9:00 p.m and picked up Parks and Jones. According to Howard, Parks and Jones were with him until after 11:00 p.m. that night, and Parks’ maroon Thunderbird was at his house all night. Howard testified that Parks’ car was not running. Howard said that he was working to repair it, and that when Parks’ mother came to pick it up, after Parks was arrested, he had to do some work on it before it would crank.

ANALYSIS

I. Whether the trial court erred in admitting a .22 caliber pistol into evidence.

¶ 13. The standard of review for a trial judge’s decision to admit or exclude evidence is abuse of discretion. Graves v. State, 492 So.2d 562, 565 (Miss.1986). Evidence that is either relevant or shows the res gestae of a crime is admissible. Wade v. State, 583 So.2d 965, 967 (Miss.1991). Relevant evidence is evidence that tends to show whether a fact of consequence to an action either occurred or did not occur. Id. (citing Collins v. State, 513 So.2d 877, 878 (Miss.1987)). Evidence is admissible as showing the res gestae of a crime, if the evidence tends to show part of the entire transaction constituting the crime. Id.

¶ 14. Parks filed a motion to exclude the weapon on the basis that it was irrelevant and should be excluded, pursuant to Mississippi Rules of Evidence 401 and 402. Further, Parks asserted that the State could not provide a nexus between the weapon, discovered approximately two miles from the alleged crime scene, and the crime.

¶ 15. The trial judge denied the motion. The trial judge held that whether or not the victim could identify the weapon was a question of fact for the jury, and she was subject to cross-examination on her identification. Parks argues that the trial judge abused his discretion in failing to suppress the admission of the gun.

¶ 16. A weapon used in the commission of a crime may be admitted where the victim identifies it. Agnew v. State, 783 So.2d 699, 704(¶ 17) (Miss.2001). Luckett testified that she had seen the weapon earlier that night, and again at the time she was shot with it. Luckett was cross-examined about her failure to describe the gun to the officers.

¶ 17. Whether or not she was able to correctly identify the gun was a question for the jury. The weight and credibility to be afforded to the testimony were matters for the jury. Id. The trial judge did not abuse his discretion in admitting the weapon into evidence. Therefore, we find no error and affirm.

II. Whether the verdict was against the overwhelming weight of the evidence.

¶ 18. In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Montana v. State, 822 So.2d 954, 967-68(¶ 61) (Miss.2002). Only when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal. Id.

¶ 19. When this Court analyzes a jury’s verdict to determine whether it goes against the overwhelming weight of the evidence, we must keep in mind that the jury is the ultimate finder of fact. Langston v. State, 791 So.2d 273, 280(¶ 14) (Miss.Ct.App.2001). This Court does not have the task of re-weighing the facts in each case to go behind the jury to detect whether the testimony and evidence they chose to believe was or was not the most credible. Id.

¶ 20. The jury heard both versions of the events. Shameka Luckett testified that Parks shot her. Luckett’s testimony was corroborated by Vickie and Kelsey Harmon, who aided Luckett after she was shot. Parks’ defense was presented through Demond Howard, an alibi witness.

¶ 21. It is for jurors to resolve conflicts in testimony. McGee v. State, 828 So.2d 847, 850(¶13) (Miss.Ct.App.2002) (citing Jackson v. State, 614 So.2d 965, 972 (Miss.1993)). “The jury is the sole judge of the credibility of witnesses, and the jury’s decision based on conflicting evidence will not be set aside where there is substantial and believable evidence supporting the verdict.” Langston v. State, 791 So.2d 273, 280(¶ 14) (Miss.Ct.App.2001) (citing Billiot v. State, 454 So.2d 445, 463 (Miss.1984)). This Court may not make an assessment on the credibility of the trial witnesses as that is a task for the jury. Id. (citing Kinzey v. State, 498 So.2d 814, 818 (Miss.1986)).

¶ 22. In our review of the evidence, we do not find that the trial judge abused his discretion in failing to grant a new trial. The verdict in this case is not contrary to the overwhelming weight of the evidence and allowing it to stand will not constitute an unconscionable injustice. Therefore, we affirm.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF ATTALA COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ATTALA COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.