author: MYERS, P.J.,

text:
    Robert A. PASSMAN Appellant v. STATE of Mississippi Appellee.
    No. 2004-KP-02364-COA.
    Court of Appeals of Mississippi.
    Jan. 31, 2006.
    Rehearing Denied May 16, 2006.

      Robert A. Passman, Appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, for Appellee.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. On October 6, 2004, the Pike County Circuit Court convicted Robert A. Pass-man of possession of methamphetamine with intent to distribute and with possession of a firearm while intending to distribute. On October 8, 2004, the circuit court sentenced him to an enhanced sixty year sentence in the custody of the Mississippi Department of Corrections, two million dollar fine and fifty dollars restitution to the Mississippi Bureau of Narcotics. He appeals that conviction pro se raising the following four issues:

I. WHETHER OR NOT PASS-MAN’S ARREST WAS LEGAL AND WAS THERE PROBABLE CAUSE FOR A SEARCH.
II. WHETHER OR NOT THE TRIAL COURT ERRED BY NOT GRANTING PASSMAN’S MOTION FOR JNOY OR IN THE ALTERNATIVE, MOTION FOR A NEW TRIAL.
III. WHETHER OR NOT PASS-MAN WAS GIVEN AN APPROPRIATE SENTENCE UNDER THE RELEVANT STATUTES.
IV. WHETHER OR NOT PASS-MAN WAS GIVEN EFFECTIVE ASSISTANCE OF COUNSEL.

¶ 2. Finding no error, we affirm the judgment of the circuit court.

FACTS

¶ 3. On February 9, 2004, Mississippi Bureau of Narcotics (MBN) agents including Agent Billy Ray Warner monitored telephone calls between an informant and Robert A. Passman regarding the buying and selling of methamphetamine. Warner listened to these calls and recognized Pass-man’s voice because of previous contact with him. Passman indicated to the informant that she could come to his house for the methamphetamine but not to bring any money and she would have to consume the drug at his house. During these conversations Passman never used the word “methamphetamine” he referred to the drug as “girl”. The State presented testimony at trial which confirmed that “girl” was meant to mean methamphetamine. After hearing these conversations, Warner went to arrest Passman for conspiracy to distribute methamphetamine.

¶ 4. As Passman returned to his home, Warner and other agents pulled into his driveway behind him. Warner testified that he wanted to talk to Passman to see if he would cooperate. Warner gave Miranda warnings to Passman but did not place him under arrest at that time. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Passman admitted that he had some “straws” for using drugs in his house. Since “straws” are considered drug paraphernalia, Warner asked Passman for consent to search his house. Passman refused that consent. At that point Warner and the other agents placed Passman under arrest, and Warner left to obtain a search warrant for the house. Judge Price issued a search warrant after he placed Warner under oath, and Warner established probable cause with a statement of “underlying facts and circumstances.”

¶ 5. The search of Passman’s home revealed finger scales, folded pieces of aluminum foil with a plastic bag and a powder substance inside, a blue plastic straw, a wooden pipe, a butane torch, a police scanner and a .380 loaded handgun. Sharon Patton, a Mississippi Crime Lab analyst, testified at trial that the substance found in Passman’s home was methamphetamine. On June 18, 2004, Passman was indicted for possession of methamphetamine, at least one tenth of a gram and less than two grams, with intent to distribute and possession of a firearm while intending to distribute meth. The indictment was then later amended to possession of less than one tenth of a gram of methamphetamine with intent and enhanced for possession of a firearm.

¶ 6. Prior to trial, a suppression hearing was conducted to determine if the search of the home and Passman’s arrest were legal. Warner testified regarding the confidential informant and the telephone conversations he had monitored. The trial court determined that the recorded conversations provided ample probable cause and allowed this into evidence.

¶ 7. The trial court conducted another hearing to determine whether or not testimony from two people who had allegedly obtained methamphetamine from Passman was admissible. The trial court found that the probative value was greater than the prejudicial effect, and this testimony was allowed along with a limiting instruction to the jury.

¶ 8. Courtney Rockwell, the confidential informant, testified that Passman supplied her with methamphetamine for several months. She also testified to the code Passman used for methamphetamine, “the girl”. Tracy Ladner also testified to Pass-man supplying him with methamphetamine. Ladner testified to the way he received the methamphetamine, in aluminum foil, the way the agents found the meth at Passman’s home. Passman presented no witnesses at trial. The jury was given instructions regarding “constructive possession” and lesser-included offenses.

¶ 9. Passman was found guilty by the jury and on October 8, 2004, the trial court sentenced him to thirty years for possession with intent to distribute under Mississippi Code Annotated § 41-29-152. That sentence was doubled because the jury found that Passman possessed a .380 handgun at the time he was intending to distribute the methemphetamine. Miss.Code Ann. § 41-29-152 (Rev.2005). This resulted in sixty years in the custody of the Mississippi Department of Corrections with a two million dollar fine and fifty dollars of restitution to Mississippi Bureau of Narcotics..

I. WHETHER OR NOT PASSMAN’S ARREST WAS LEGAL AND WAS THERE PROBABLE CAUSE FOR A SEARCH.

¶ 10. Passman claims that he was subjected to an illegal search and seizure, and that the informant was not reliable to establish probable cause for a search warrant. The trial court conducted a suppression hearing and ruled that the recorded telephone conversation was enough to guarantee that the informant was reliable to establish probable cause.

STANDARD OF REVIEW

¶ 11. The standard of review for both the admission or exclusion of evidence is abuse of discretion. Harrison v. McMillan, 828 So.2d 756, 765 (¶ 27) (Miss. 2002). Even if this Court finds an erroneous admission or exclusion of evidence, we will not reverse unless the error adversely affects a substantial right of a party. Gibson v. Wright, 870 So.2d 1250, 1258 (¶ 28) (Miss.Ct.App.2004). When reviewing a trial court’s ruling at a suppression hearing, this Court must assess whether after considering the “totality of the circumstances” there is substantial credible evidence to support the trial court’s findings. Price v. State, 752 So.2d 1070 (¶ 9)(Miss.Ct.App.1999)(citing Magee v. State, 542 So.2d 228, 231 (Miss.1989)).

DISCUSSION

¶ 12. Passman argues that Judge Price did not have probable cause to issue a search warrant. The judge issuing the search warrant has to make a practical common sense determination given all the circumstances based upon the hearsay of the person supplying the information. Bryant v. State, 746 So.2d 853, 859 (¶ 11)(Miss.Ct.App.1998). Therefore, we simply need to determine that there was a substantial basis for the magistrate’s determination of probable cause. Buggs v. State, 738 So.2d 1253 (¶ 5) (Miss.Ct.App.1999). The standard affidavit form required for the issuance of a warrant specifically states that hearsay may be used to establish probable cause. Davis v. State, 660 So.2d 1228, 1238 (Miss.1995). “Probable cause exists when facts and circumstances within an officer’s knowledge, or of which he has trustworthy information, are sufficient themselves to justify a man of average caution in the belief that a crime has been committed and that a particular person committed it.” Id. In Donerson v. State, this Court found that there was probable cause for a magistrate to issue a search warrant based upon an informant. Donerson v. State, 812 So.2d 1081, 1086 (¶ 9)(Miss.Ct.App.2001). Even though this informant had never been used by these agents previously, the trial court stated that the reliability was confirmed by the recording. Therefore, there was probable cause to issue a search warrant for Pass-man’s home.

¶ 13. As to the arrest, Passman argues that his arrest was illegal. Pass-man admitted to Warner and the other agents that he had paraphernalia in his home. Since that of itself is in violation of the Mississippi Code Annotated, Warner had enough probable cause to place him under arrest. Whether an arrest is constitutionally valid depends on whether at the time the arrest was made the officers had probable cause to make it, and whether at that moment the facts and circumstances within their knowledge were sufficient to warn a prudent man in believing that the petitioner was committing or had committed an offense. Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). The rule of probable cause is a practical, nontechnical conception affording the best compromise to accommodate opposing interests. Brinegar, 338 U.S. at 176, 69 S.Ct. 1302. The test for probable cause in Mississippi is the totality of the circumstances. Haddox v. State, 636 So.2d 1229, 1235 (Miss.1994). Passman actually told the agents in this situation that he had and was presently committing a crime by having possession of paraphernalia. Therefore, the agents had probable cause to arrest him, and this issue has no merit.

II. WHETHER OR NOT THE TRIAL COURT ERRED BY NOT GRANTING PASSMAN’S MOTION FOR JNOV OR IN THE ALTERNATIVE, MOTION FOR A NEW TRIAL.

¶ 14. Passman claims that there was no evidence shown that he would sell any drugs to the confidential informant (Rockwell). Passman goes further to allege that the State and the trial court failed in its duty to require the jury to find the presence of the weapon involved in this case.

STANDARD OF REVIEW

¶ 15. The standard of review for deciding whether or not a jury verdict is against the overwhelming weight of the evidence is that this Court must accept the evidence which supports the verdict as the truth and will reverse only if convinced that the circuit court abused its discretion in not granting a new trial. Price v. State, 898 So.2d 641, 652 (¶ 26) (Miss.2005). A new trial will not be ordered unless we are convinced that the verdict is so contrary to the overwhelming weight of the evidence, that, to allow the verdict to stand, would be to sanction an unconscionable injustice. Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983).

DISCUSSION

¶ 16. This high standard is necessary because any factual disputes are properly resolved by the jury not by an appeals court. McNeal v. State, 617 So.2d 999, 1009 (Miss.1993). Passman argues that the State did not prove any elements of intent to distribute and possession. He also asserts that there was no evidence to prove that Passman had possession of this firearm. However, testimony was presented that Passman stated no other person lived with him or had been in his residence. The State provided testimony regarding the findings of the search at Passman’s home. The items found such as finger scales, police scanner, and foil were presented to the jury for them to decide whether or not these items represent distribution of drugs. In Bryant v. State, this Court determined that scanners, walk-ie talkies, and scales when found along with drugs are a relevant factor for the jury to consider when deciding if a defendant was involved in the distribution of drugs. Bryant v. State, 746 So.2d 853, 860 (¶ 23) (Miss.Ct.App.1998). The only way this Court can overturn the jury’s findings is if the facts are so in favor of the defendant that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty. Glass v. State, 278 So.2d 384, 386 (Miss.1973). Therefore, we hold that the verdict reached by the jury is consistent with the weight of the evidence presented by the State in this action.

III. WHETHER OR NOT PASSMAN WAS GIVEN AN APPROPRIATE SENTENCE UNDER THE RELEVANT STATUTES.

¶ 17. Passman asserts that his sentence is disproportionate to the crime committed and amounts to cruel and unusual punishment. Passman argues that he should be sentenced under Mississippi Code Annotated § 41-29-139(c)(l)(a). (Rev.2005) The State contends that Passman was sentenced under the guidelines of the Mississippi Code, and therefore, his sentence was not excessive.

STANDARD OF REVIEW.

¶ 18. Sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute. Nichols v. State, 826 So.2d 1288, 1290 (¶ 10) (Miss.2002). A sentence that does not exceed the maximum term set by statute cannot be disturbed upon appeal. Fleming v. State, 604 So.2d 280, 302 (Miss.1992).

DISCUSSION

¶ 19. Passman made no objection to his sentence in the trial court, and objections to sentence cannot be made initially on appeal. Peterson v. State, 740 So.2d 940, 950 (¶ 30) (Miss.Ct.App.1999). Since Passman did not object to his sentence as being unconstitutional in the trial court, he is procedurally barred from raising this allegation on appeal. Reed v. State, 536 So.2d 1336, 1339 (Miss.1988); Billiot v. State, 454 So.2d 445, 455 (Miss.1984); Taylor v. State, 452 So.2d 441, 450 (Miss.1984).

¶ 20. Regardless of the procedural bar, Passman was sentenced under Mississippi Code Annotated § 41 — 29—139(b)(1) (Rev. 2005) which states:

In the case of controlled substances classified in Schedule I or II, as set out in Sections 41-29-113 and 41-29-115, except thirty (30) grams or less of marihuana, and except a first offender as defined in section 41-29-149(e) who violates subsection (a) of this section with respect to less than one (1) kilogram but more than thirty (30) grams of marihuana, such person may upon conviction, be imprisoned for not more than thirty (30) years and shall be fined not less than Five Thousand Dollars ($5,000.00) nor more than One Million Dollars ($1,000,-000.00) or both.

¶ 21. Methamphetamine is a Schedule II controlled substance under § 41-29-115(a) of the Mississippi Code Annotated, and according to § 41-29-152, possession of a handgun doubles the sentence for this conviction. Passman had no prior felonies; however, the trial judge stated at the sentencing hearing that Passman was the worst type of drug dealer, because he focuses on getting young people addicted. He also asserts that this is the worse type of crime and should warrant the full punishment the law allows. Therefore, the trial court sentenced Passman to sixty years to serve in the Mississippi Department of Corrections, a two million dollar fine and fifty dollars in restitution to be paid the Mississippi Bureau of Narcotics. Even though Passman was only in possession of .04 grams of meth, that is irrelevant in regard to the statute.

¶ 22. The supreme court has held that a sentence which does not exceed statutory limits is not cruel or unusual punishment. Baker v. State, 394 So.2d 1376, 1378 (Miss.1981). In Stromas v. State, the Mississippi Supreme Court has ruled that “[d]rug offenses are very serious and the public has expressed grave concern with the drug problem. The legislature has responded in kind with stiff penalties for drug offenders. It is the legislatures prerogative and not this Court’s to set the length of sentences.” Stromas v. State, 618 So.2d 116, 123 (Miss.1993).

¶ 23. According to Mississippi Code Annotated § 41-29-149, the trial judge has the discretion to reduce the statutory sentence for first time offenders; however, there is nothing in our code which requires the judge to take into account the first time offender status when sentencing. Maldonado v. State, 796 So.2d 247, 261 (¶ 46) (Miss.Ct.App.2001). When the trial judge imposes a sentence within the statutory guideline, the sentence will generally be upheld and will not be thought to invoke the Eighth Amendment right against cruel and unusual punishment. Peterson v. State, 740 So.2d 940, 950 (¶ 31) (Miss.Ct.App.1999).

IV. WHETHER OR NOT PASSMAN WAS GIVEN EFFECTIVE ASSISTANCE OF COUNSEL.

¶ 24. Passman contends that his trial counsel failed to investigate, advocate and effectively defend him. Passman goes further to state that counsel did not object to evidence admitted as a result of an illegal search. The State contends that Pass-man’s counsel was effective and that this issue is without merit.

STANDARD OF REVIEW

¶ 25. In order to prove ineffective assistance of counsel, Passman must prove by a preponderance of the evidence that (1) counsel’s performance was defective, and (2) the defect was so prejudicial that it prevented Passman from receiving a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Moody v. State, 644 So.2d 451, 456 (Miss.1994). The proper standard that is required to show prejudice requires Pass-man to prove that there is a reasonable probability that, but for counsel’s errors, the trial court’s result would have been different. Strickland, 466 U.S. at 669, 104 S.Ct. 2052. In order to successfully claim ineffective assistance of counsel, the defendant must meet the two-pronged test set forth in Strickland. Id. at 687, 104 S.Ct. 2052. The Strickland test requires a showing of (1) a deficiency of counsel’s performance (2) sufficient to constitute prejudice to the defense. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). The burden is on Passman to prove both prongs of the test. Id.

DISCUSSION

¶ 26. Passman asserts that his counsel was deficient because he failed to object to evidence being admitted as a result of an unlawful search. However, this assertion is incorrect. Passman’s counsel actually filed a motion to exclude this evidence, and a suppression hearing was held as a result of that motion. Pass-man has failed to meet the two-prong test set out in Strickland. Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

¶ 27. Passman has the burden of proof for the first prong and “there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,” Id. at 689, 104 S.Ct. 2052. Passman still having the burden of proof, under the second prong even if counsel’s conduct is “professionally unreasonable,” the judgement still stands “if the error had no effect on the judgment.” Id. at 691, 104 S.Ct. 2052. Passman has not met this heavy burden by showing any evidence that results in a deficiency in counsel’s performance and that is sufficient to prejudice the defense. Id. Pass-man was entitled to a fair trial, not a perfect one, nor was he entitled to a constitutionally errorless counsel. Cabello v. State, 524 So.2d 313, 315 (Miss.1988). This issue is without merit.

¶ 28. Although we find Passman’s issue regarding ineffective assistance of counsel to be meritless, we are mindful of the Mississippi Supreme Court’s ruling in Read v. State. 430 So.2d 832, 841 (Miss.1983). This procedure requires us to do the following:

[CJonduct a thorough review of the record to see whether a determination can be made from the record that counsel’s performance was constitutionally substandard. “Assuming that the Court is unable to conclude from the record that defendant’s trial counsel was constitutionally ineffective,” the court is directed to consider any other issues raised in the appeal and, assuming no reversible error is found among them, to affirm “without prejudice to the defendant’s right to raise the ineffective assistance of counsel issue via appropriate post-conviction relief proceedings.”

Wash v. State, 807 So.2d 452, 461 (¶ 34) (Miss.Ct.App.2001) (quoting Read, 430 So.2d at 841).

We have also held in this regard:

We should reach the merits on an ineffective assistance of counsel issue on direct appeal only if “(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Colenburg v. State, 735 So.2d 1099, 1101 (Miss.Ct.App.1999). If the issue is not examined because of the state of the record, and assuming the conviction is affirmed, the defendant may raise the ineffective assistance of counsel issue in post-conviction relief proceedings. Read, 430 So.2d at 841.

Pittman v. State, 836 So.2d 779, 787 (¶ 39) (Miss.Ct.App.2002).

¶ 29. Since the record was not clear in order to determine whether Passman’s counsel was deficient, this issue is affirmed without prejudice so that Passman may pursue this matter under the state’s post-conviction relief statute.

¶ 30. THE JUDGMENT OF THE PIKE COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF LESS THAN ONE TENTH GRAM OF METHAMPHETAMINE WITH INTENT TO DISTRIBUTE WHILE IN POSSESSION OF A FIREARM AND SENTENCE OF SIXTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, A FINE OF TWO MILLION DOLLARS AND RESTITUTION IN THE AMOUNT OF FIFTY DOLLARS TO THE MISSISSIPPI BUREAU OF NARCOTICS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

KING, C.J., LEE, P.J., IRVING, CHANDLER, GRIFFIS, BARNES and ISHEE, JJ., concur.

SOUTHWICK and ROBERTS, JJ., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    Elizabeth S. McDANIEL, Appellant v. CITIZENS BANK, Appellee.
    No. 2004-CA-01936-COA.
    Court of Appeals of Mississippi.
    Feb. 14, 2006.
    Rehearing Denied June 20, 2006.
    Kristopher Alan Powell, Jack W. Land, attorneys for appellant.
    Eugene Love Fair, Hattiesburg, Susan K. Steadman, attorneys for appellee.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Citizens Bank sued Elizabeth S. McDaniel for deficiency on a promissory note after Citizens Bank sold McDaniel’s Cadillac used as collateral. The Marion County Circuit Court entered a directed verdict in favor of Citizens Bank. McDaniel appealed raising two issues:

I. THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT’S MOTION FOR DIRECTED VERDICT AT THE CLOSE OF PLAINTIFF’S CASE.
II. THE TRIAL COURT ERRED IN GRANTING PLAINTIFF’S MOTION FOR DIRECTED VERDICT AT THE CLOSE OF ALL THE EVIDENCE. ¶ 2. Finding no error, we affirm.

FACTS

¶3. Citizens Bank (Citizens) and Elizabeth McDaniel had maintained an ongoing business relationship from 1996 until 2003. This relationship included a series of loan transactions in which McDaniel’s 1995 Cadillac de Ville was used as collateral. On March 15, 2002, McDaniel executed a promissory note with Citizens for $11,444.40, secured by her car. At the time of this promissory note the car had 232,000 miles. McDaniel was to repay the loan in eleven installments of $250 with a final balloon payment of $10,150.95.

¶4. On March 28, 2003, McDaniel met with Citizen’s loan officer, Mack Davis, and signed a new promissory note for the balance of the previous note ($10,150.95) and was given a coupon book for payments to be made to the bank. During the loan negotiations Davis informed McDaniel that she would need to purchase insurance on the car prior to the loan being completed. McDaniel had not had insurance on the car during previous loans in which the car was used as security. McDaniel failed to provide Citizens with the required proof that she had obtained insurance.

¶ 5. Hubert Freeman, Citizens’ head of recovery, notified McDaniel on April 22, 2003, that the car would be repossessed for failure to obtain insurance because the FDIC required this insurance. McDaniel again failed to purchase the required insurance and the Cadillac was repossessed on May 6, 2003. Following this repossession, Freeman informed McDaniel that she had ten working days to obtain insurance and renew the loan or payoff the balance owed. McDaniel did neither and Citizens began the process of selling the car. The car was sold on September 4, 2003, for $1,500 and this suit was filed by Citizens to collect the difference between the amount owed and the sale price on November 7, 2003. At the conclusion of the trial the court entered a directed verdict in favor of Citizens. Upon this verdict McDaniel has appealed to this Court raising two issues:

I. THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT’S MOTION FOR DIRECTED VERDICT AT THE CLOSE OF PLAINTIFF’S CASE-IN-CHIEF.
II. THE TRIAL COURT ERRED IN GRANTING PLAINTIFF’S MOTION FOR DIRECTED VERDICT AT THE CLOSE OF ALL THE EVIDENCE.

LEGAL ANALYSIS

¶ 6. Finding that both issues involve motions for directed verdict, we will address them together.

STANDARD OF REVIEW

¶ 7. The standard to be applied by the trial court in considering a motion for directed verdict has been stated by this Court as follows:

The trial court may direct a verdict for the defendant at the close of the plaintiffs proof under authority of Mississippi Rule of Civil Procedure 50(a) if, in the opinion of the court, the plaintiff has failed to present credible evidence to establish the necessary elements of his right to recover. Hall v. Mississippi Chem. Express, Inc., 528 So.2d 796, 798 (Miss.1988). The court must consider all evidence then before it in the light most favorable to the plaintiff and must concede to the plaintiff all favorable inferences that could reasonably be said to arise from that evidence. Benjamin v. Hooper Electronic Supply Co., Inc., 568 So.2d 1182, 1187 (Miss.1990). Only if, viewed in that light, the court determines that the matter is so overwhelmingly ⅛ favor of the defendant that no reasonable juror could find for the plaintiff, should the court direct a defendant’s verdict. Id.

Thomas v. Smith, 786 So.2d 418, 419(¶ 2) (Miss.Ct.App.2001).

DISCUSSION

¶ 8. The issue at the center of the case at bar is whether McDaniel provided the final payment required in the 2002 note. McDaniel’s argument is that the 2003 note was accord • and satisfaction of the 2002 note. Citizens contends that McDaniel’s failure to provide insurance as required by the 2003 note invalidated that note and therefore McDaniel did not make the final payment as required on the 2002 note. Because of this failure to make the final payment of the 2002 note Citizens repossessed the car, sold the car, and sued McDaniel to collect the difference.

¶ 9. The four elements of a valid accord and satisfaction under Mississippi Law have been set out in numerous opinions by our supreme court, recently in Medlin v. Hazelhurst Physicians, 889 So.2d 496, 498(¶ 12)(Miss.2004). These elements are:

(1) something of value offered in full satisfaction of a demand; (2) accompanied by acts- and declarations as amount to a condition that if the thing offered is accepted, it is accepted in satisfaction;
(3) the party offered the thing of value is bound to understand that if he' takes it, he takes subject to such conditions; and
(4) the party actually does accept the item.

Id. Each of these elements must be met for there to be accord and satisfaction.

¶ 10. In full satisfaction of the final payment due on the 2002 note Citizens offered McDaniel a new loan of equal monthly installments. This loan would be paid over a period of thirty-six months in equal amounts of $329.54. This loan would be a completion of the series of loans between Citizens and McDaniel. Citizens offered this loan with the condition that McDaniel would provide proof of insurance prior to the activation and recording in the bank’s records by Citizens.

¶ 11. Following the completion of the loan application and in anticipation of McDaniel meeting her obligation to provide insurance, Citizens gave McDaniel a payment coupon book. Citizens contacted McDaniel numerous times after these negotiations and requested the necessary proof of insurance. McDaniel did not meet her obligation of providing proof of insurance on the car and the bank canceled the new loan before it was activated. This cancellation left the final payment of the 2002 note unpaid and therefore put McDaniel in default of that loan. With McDaniel in default, Citizens was entitled to proceed with repossession of the car and to seek payment of the difference between the car’s value and the amount remaining on the loan.

¶ 12. Without this loan McDaniel has not provided Citizens with “something of value offered in full satisfaction of demand.” The first element of accord and satisfaction has not been met and the 2002 note has not been satisfied.

¶ 13. Additionally, McDaniel contends that Citizens breached its duty of good faith and fair dealing by treating her unfairly. The Mississippi Supreme Court has stated:

Every contract contains an implied covenant of good faith and fair dealing in performance and enforcement. Morris v. Macione, 546 So.2d 969, 971 (Miss.1989). “Good faith is the faithfulness of an agreed purpose between two parties, a purpose which is consistent with justified expectations of the other party. The breach of good faith is bad faith characterized by some conduct which violates standards of decency, fairness or reasonableness.” Cenac v. Murry, 609 So.2d 1257, 1272 (Miss.1992). Bad faith, in turn, requires a showing of more than bad judgment or negligence; rather, “bad faith” implies some conscious wrongdoing “because of dishonest purpose or moral obliquity.” Bailey v. Bailey, 724 So.2d 335, 338 (Miss.1998).

Harris v. Mississippi Valley State University 873 So.2d 970, 987(¶51) (Miss.2004). McDaniel believes that her unfair treatment stems from Citizens suing her on the 2002 note which she believed had been renewed by the 2003 note.

¶ 14. The actions of Citizens do not constitute a breach of good faith and fair dealing. A business relationship had existed between Citizens and McDaniel for several years. Citizens had made repeated loans to McDaniel with the Cadillac as security for those loans. After numerous years of lending money to McDaniel, Citizens offered a loan to McDaniel that would finally payoff the amount owed on the car without the continued annual refinancing. The only condition Citizens required, other than making monthly payments, was that McDaniel provide insurance coverage for the car. She failed to provide this coverage and the 2003 note was not activated. This does not constitute bad faith. The actions of Citizens are within reasonable business practices.

CONCLUSION

¶ 15. Finding that the trial court’s ruling was correct that the 2002 note had not been paid off due to the failure of the 2003 note, we affirm.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF MARION COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: IRVING, J.,

text:
    Tony HARGROVE, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-CP-01702-COA.
    Court of Appeals of Mississippi.
    July 18, 2006.

      Tony Hargrove, Appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Tony Hargrove filed a motion for post-conviction relief which was denied by the Webster County Circuit Court. Feeling that the court’s decision was in error, Hargrove appeals and alleges the following errors, which we state verbatim:

ISSUE ONE
Appellant was denied due process law [sic] where he agreed to not take an appeal in this case, through the understanding from his attorney and the prosecutor, that the sentencing recommendation would be, because of petitioner’s first offender status, under the 25% law as opposed to the 85% law.
ISSUE TWO
Appellant Tony Hargrove received ineffective assistance of counsel at trial, in violation of the 6th and 14th Amendments to the United States Constitution as well as the Constitution of the State of Mississippi. Trial counsel failed to point out to the trial court that a condition for Appellant not perfecting an appeal to the Mississippi Supreme Court in this case was that the initial sentence would be imposed under the twenty-five (25%) rule.
ISSUE THREE
Appellant Tony Hargrove’s waiver of his appeal, where such waiver was based in part on the fact that the initial sentence in this case, which was a first offender status conviction, was not voluntary [sic] and intelligently made where such sentence was imposed without respect to the 25% rule. Appellant should therefore be resentenced under the correct sentencing provisions or the court should correct and modify the sentence in such fashion so to serve 25% of the sentence and the remainder under post release supervision as to require Appellant [sic].
¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Hargrove was arrested on three charges. Cause numbers 2001-30-CR and 2001-32-CR relate to sale of marihuana and armed robbery, respectively. Cause number 2001-85-CR, the basis of the matter before us, relates to Hargrove’s possession of more than one ounce, but less than one kilogram, of marihuana with intent to sell, transfer, or distribute. On January 23, 2002, after a jury trial, Hargrove was convicted of the possession charge. Sentencing was withheld until February 1, 2002, at which time the court sentenced Hargrove in cause number 2001-85-CR and accepted his guilty pleas in cause numbers 2001-30-CR and 2001-32-CR. In return for Hargrove’s cooperation with the State and the waiver of his right to appeal cause number 2001-85-CR, the prosecutor recommended a sentence of twelve years on cause number 2001-85-CR at the sentencing hearing. This recommendation was adopted by the court, and Hargrove was sentenced to twelve years.

¶ 4. Prior to sentencing, Hargrove’s attorney advised him that Hargrove would be sentenced as a first-time offender, and would therefore have to serve only twenty-five percent of his sentence. In reality, Hargrove has to serve at least eighty-five percent of his sentence before being released. Hargrove contends that his belief that he would only have to serve twenty-five percent of the twelve year sentence in cause number 2001-85-CR was the foundation of his guilty pleas in cause numbers 2001-30-CR and 2001-32-CR.

¶ 5. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Agreement not to Appeal

¶ 6. Hargrove contends that he “was denied due process law [sic]” when he agreed not to appeal his conviction in cause number 2001-85-CR upon the premise that he would only have to serve twenty-five percent of his sentence in cause number 2001-85-CR.

¶ 7. The agreement not to appeal was part of Hargrove’s guilty plea in cause numbers 2001-30-CR and 2001-32-CR. The conviction that forms the basis of the appeal before us, however, is cause number 2001-85-CR. Hargrove’s agreement not to appeal goes only toward the volun-tariness of his pleas in cause numbers 2001-30-CR and 2001-32-CR. According to Mississippi Code Annotated section 99-39-9: “A motion [for post-conviction relief] shall be limited to the assertion of a claim for relief against one (1) judgment only. If a prisoner desires to attack the validity of other judgments under which he is in custody, he shall do so by separate motions.” Miss.Code Ann. § 99-39-9(2) (Supp.2005).

¶ 8. Although the record in the present case lacks copies of the separate judgments, the front page of the judgment that is included in the record indicates that it is only for cause number 2001-85-CR. “Our law is clear that an appellant must present to us a record sufficient to show the occurrence of the error he asserts and also that the matter was properly presented to the trial court and timely preserved.” Young v. State, 891 So.2d 813, 819(¶ 14) (Miss.2005) (citing Lambert v. State, 574 So.2d 573, 577 (Miss.1990)); see also Williams v. State, 522 So.2d 201, 209 (Miss.1988) (citations omitted). Therefore, we find that, since separate judgments were rendered in the three causes, Har-grove is procedurally barred from challenging the validity of his guilty pleas in cause numbers 2001-30-CR and 2001-32-CR in this appeal, which concerns only cause number 2001-85-CR.

2. Ineffective Assistance of Counsel

¶ 9. In this issue, Hargrove alleges that his counsel was ineffective for failing to inform him that his sentence in cause number 2001-85-CR would not be served under the twenty-five percent rule.

¶ 10. We find no merit to this contention because Hargrove’s attorney’s advice had no impact on Hargrove’s sentencing in cause number 2001-85-CR. In order to succeed on a claim of ineffective assistance of counsel, Hargrove must show that his counsel’s performance was deficient, and he must show that such deficiency prejudiced him in his defense. Stringer v. State, 454 So.2d 468, 476-77 (Miss.1984) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Regardless of whether Har-grove’s attorney was deficient for erroneously informing him that he would be sentenced under the twenty-five percent law, no prejudice occurred to Hargrove because no advice by his counsel could impact his sentencing. The sentencing in cause number 2001-85-CR, where Hargrove had already been convicted by a jury, was entirely at the discretion of the court: “[We] have held that sentencing is within the discretion of the trial court and is not subject to appellate review if it is within the limits prescribed by statute.” Tate v. State, 912 So.2d 919, 933(¶ 48) (Miss.2005) (citations omitted). Therefore, any advice rendered to Hargrove by his attorney, no matter how erroneous, could not cause prejudice to Hargrove in his defense in cause number 2001-85-CR. This issue is without merit.

3. Waiver of Appeal and Resentencing

¶ 11. Hargrove claims that the waiver of his appeal was involuntary. This issue is disposed of for the same reason as Har-grove’s first issue. The waiver was done as a part of his pleas in cause numbers 2001-30-CR and 2001-32-CR, which are not a part of the judgment he is appealing. Therefore, this issue is procedurally barred, and we decline to order that Har-grove be resentenced. Additionally, as noted above, “sentencing is within the discretion of the trial court and is not subject to appellate review if it is within the limits prescribed by statute.” Id. Hargrove’s third and final contention of error is rejected.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF WEBSTER COUNTY DENYING POST-CONVIC-TIQN RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WEBSTER COUNTY.

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


author: KING, C.J., SOUTHWICK, J.,

text:
    CUNNINGHAM ENTERPRISES, INC. d/b/a Campbell's Glass Window & Door Company, A Member of the BCAM Self-Insurers' Fund, Appellant v. Cary A. VOWELL, Appellee.
    No. 2005-WC-01261-COA.
    Court of Appeals of Mississippi.
    Aug. 8, 2006.

      Michael Reed Martz, Andrew David Shull, attorneys for appellant.
    Stephen L. Henning, Batesville, attorney for appellee.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   KING, C.J.,

for the Court.

¶ 1. Cunningham Enterprises, Incorporated (Cunningham) appeals the Marshall County Circuit Court’s dismissal of its appeal from an interlocutory order from the Mississippi Workers’ Compensation Commission (Commission). Finding that no final order has been issued, we affirm the circuit court’s decision.

ANALYSIS

¶ 2. Cary Vowell filed a petition to controvert on May 27, 2003. On April 23, 2004, Vowell filed a motion with the Commission to compel medical benefits. Vo-well renewed this motion on September 13, 2004. On October 1, 2004, the administrative law judge conducted a telephonic hearing on Vowell’s motion. The administrative judge law granted Vowell’s motion to compel medical benefits. Cunningham appealed the administrative law judge’s decision to the Full Commission. The Commission listed in its order the following situations in which it may choose to review interlocutory orders by administrative law judges:

where such review may materially advance the final resolution of the claim, avoid unnecessary delay or expense to the parties, protect a party from substantial and irreparable injury, resolve an issue of general importance in the administration of the Mississippi Workers’ Compensation Act, or serve some other purpose that the Commission in the exercise of its sound discretion considers appropriate.

The Commission dismissed Cunningham’s appeal stating that it did not meet any of the criteria for review of interlocutory orders by administrative law judges. Further, the Commission ordered the cause to be remanded to the administrative law judge “for such further proceedings as may be appropriate.” The administrative law judge had not yet decided the following issues raised in Vowell’s petition to controvert: (1) the period of temporary disability, (2) the date of maximum medical improvement, (3) the date the claimant may be able to resume employment, (4) the nature, degree and extent of the claimant’s permanent disability, nor (5) the claimant’s loss of wage earning capacity, if applicable.

¶ 3. Interlocutory orders by the Workers’ Compensation Commission are not appealable. Bickham v. Department of Mental Health, 592 So.2d 96, 98 (Miss.1991) (See also Miss.Code Ann. § 71-3-51 (Rev.2000)). Since the Commission has issued no final order, the circuit court was without jurisdiction to hear the appeal and appropriately dismissed the case. This Court affirms the circuit court’s dismissal of the appeal.

¶ 4. THE APPEAL OF THE JUDGMENT OF THE MARSHALL COUNTY CIRCUIT COURT WHICH DISMISSED THE INTERLOCUTORY APPEAL IS HEREBY AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO APPELLANT.

LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. SOUTHWICK, J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER, GRIFFIS, BARNES, AND ROBERTS, JJ.

SOUTHWICK, J.,

Concurring:

¶ 5.1 concur in the Court’s affirming the circuit court’s dismissal of the appeal. This separate opinion is written because the analysis in the precedent relied upon by the majority is of questionable continuing validity. Nonetheless, dismissal remains the proper result.

¶ 6. The Court refers to a decision that concluded that neither the circuit nor the supreme court could grant an interlocutory appeal from the Workers’ Compensation Commission. Bickham v. Dept. of Mental Health, 592 So.2d 96 (Miss.1991). That opinion stated that “judgments of the circuit courts, emanating from appeals from interlocutory orders of the Commission, are nullities. McMahan, et al., Trustees, Etc., v. Adult Membership Bds. of Phi Kappa, Dusty and Debs Clubs, 244 Miss. 692, 146 So.2d 359 (1962).” Bickham, 592 So.2d at 97. No administrative agency was involved in McMahan, and that decision’s apparent rejection of interlocutory appeals even from trial courts has been overruled by statute and the adoption of an appellate rule setting the terms for consideration of such appeals. M.R.A.P. 5.

¶ 7. The legislature has stated that the supreme court has “the power to prescribe by general rules ... for appeals to the Supreme Court from interlocutory or final orders of trial courts and administrative boards and agencies, and certiorari from the Court of Appeals.” Miss.Code Ann. § 9-3-61 (Rev.2002). The reference to interlocutory appeals was added in 1996 to a preexisting statute regarding the court’s rulemaking power. 1996 Miss. Laws ch. 384, § 1. The supreme court’s authority to make procedural rules has been interpreted as arising from the court’s inherent authority. Newell v. State, 308 So.2d 71, 77 (Miss.1975). However, the existence of a right to appeal has at times been identified as requiring statutory creation. Fleming v. State, 553 So.2d 505, 506 (Miss.1989). Section 9-3-61 is an implied legislative authorization for interlocutory appeals from agencies, but the granted authority is not self-executing. Implementation requires that the supreme court prescribe general rules.

¶ 8. The court rules controlling appeals from agencies and other tribunals to the circuit courts, which is the route that workers’ compensation cases proceed, do not refer to interlocutory appeals. U.R.C.C.C. 5.01-5.10. Two expert commentators on workers’ compensation law concluded that a rule authorizing circuit courts “to hear and determine all motions, appeals or other applications” is sufficient to permit a circuit court to accept an interlocutory appeal from the commission. URCCC 2.02, quoted in Bradley & Thompson, Workers’ Compensation Law, in 9 Jackson & Miller (ed.), Encyclopedia of Miss. Law, § 76:173 (2002). Acknowledging but not, this time, deferring to their expertise, I disagree that the fairly innocuous Rule 2.02 should be read as permitting interlocutory appeals. Allowing such appeals would overturn clear precedent. Rule 2.02 is not that bold.

¶ 9. Until the supreme court adopts rules structuring such appeals, I believe the authority granted by the legislature lies dormant. Policy considerations against such appeals have been expressed:

The extended time in which it takes to finally determine and conclude workers’ compensation cases has long been a serious concern of the judiciary, especially this Court. Counsel for litigants and circuit judges should eschew any attempt to appeal a decision of the Commission which is not final.

Bickham, 592 So.2d at 97. Bickham is dated in parts of its analysis but not in result. The supreme court may authorize interlocutory appeals from state agencies, but such appeals have not yet been and perhaps never will be allowed.

CHANDLER, GRIFFIS, BARNES AND ROBERTS, JJ., JOIN THIS OPINION.


author: ISHEE, J.,

text:
    Dexter WILLIAMS, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00411-COA.
    Court of Appeals of Mississippi.
    Aug. 22, 2006.

      William C. Trotter, Belzoni, attorney for appellant.
    Office of the Attorney General by Jose Benjamin Simo, attorney for appellee.
    Before LEE, P.J., SOUTHWICK and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Dexter Williams was convicted of capital murder in the Circuit Court of Washington County on April 18, 2008. He was sentenced to serve a term of life without parole in the custody of the Mississippi Department of Corrections. On July 8, 2003, the court entered an order denying Williams’s motion for JNOV or, in the alternative, a new trial. Aggrieved, Williams appeals. Finding no error, we affirm.

FACTS

¶ 2. On June 30, 2000, at his home in Greenville, Mississippi, Williams was caring for his infant daughter and Shakyla Trisby, the two-year-old daughter of his girlfriend, Lisa Trisby, who was having her hair styled at McRae’s. When Shaky-la had a bowel movement in her pull-up diaper, Williams took the soiled diaper outside and ran a bath in order to clean her. According to Williams, as he walked past the bathroom to check on his daughter, he instructed Shakyla to get into the bathtub. Williams testified that when he returned to the bathroom, he found Shakyla standing at the back of the bathtub with her teeth chattering. Williams further testified that he removed Shakyla from the water and called her mother when he noticed that her skin was peeling away from her feet.

¶ 3. When Ms. Trisby returned, she took Shakyla to the Delta Regional Medical Center. After Shakyla was examined by a medical team, Martha Taylor, the night supervisor for the hospital, called the Department of Human Services (DHS) and the police because the medical team suspected child abuse. At the burn center, Dr. Robert Love treated Shakyla’s injuries, and he performed two skin grafting procedures. Despite Dr. Love’s efforts, Shakyla died of infection and multiple organ failure after twelve days of treatment.

¶4. On September 25, 2000, Williams was indicted by a Washington County grand jury for capital murder pursuant to Mississippi Code Annotated section 97-3-19(2)(f). A trial was held on April 14, 2003.

¶ 5. The State’s first witness was Dorea-tha Williams, a social worker with the DHS who examined Shakyla and interviewed Williams. She testified that if a child younger than two had gotten into a bathtub on her own and had fallen down, the child would have suffered burns all over her body, due to the temperature. She further testified that Shakyla had suffered stocking burns and that such burns were inconsistent with Williams’ version of the events.

¶ 6. Dr. Love testified that Shakyla was extensively burned (46 percent of her body) and that most of the burns were third degree. Specifically, Dr. Love testified that “37 percent [of the burns] was either deep second or superficial second, the rest of it was third degree.” Dr. Love’s examination revealed extensive burns on Shakyla’s feet, legs, buttocks, and lower back, but no burns on her hands, arms, or front torso. Dr. Love testified that there were no splash marks on Shaky-la’s body. When asked to define “splash marks,” Dr. Love explained that “when people are in ... hot water, if they are splashing around or moving the water, it will splash up on them.” Dr. Love further explained that the absence of splash marks on Shakyla indicated that she did not move around in the water. Dr. Love also testified, without objection from defense counsel, that Shakyla’s injuries were likely caused by being held in hot water.

¶ 7. Dr. Stephen Hayne, a pathologist in the Department of Public Safety Medical Examiner’s Office, who performed Shaky-la’s autopsy, testified as an expert in the field of forensic pathology. Dr. Hayne testified that Shakyla had extensive full thickness thermal burn injuries on her right and left lower extremities, including the bottoms of her feet. He further testified that he did not see any evidence of splash burns. Dr. Hayne explained that his job as a forensic pathologist required him to determined how the injuries and resulting death occurred. When given a hypothetical with facts identical to this case, i.e., a bathtub filled with hot water and a two-year-old child with injuries such as the victim sustained, Dr. Hayne opined that the injuries would have occurred from water immersion. Moreover, Dr. Hayne stated that he would reasonably conclude that the child’s feet did not come in contact with the bottom of the bathtub, as there were burns on the bottom of the hypothetical child’s feet. Dr. Hayne further explained that the bottom surface of the bathtub is cooler than the water; thus, if the feet touched the bottom' surface, there would normally not be burning on the feet.

¶ 8. The defense called a plethora of witnesses, each of whom testified as to Williams’s relationship with children. Jamie Bullock, Williams’s sister, testified that, based on her observations, Williams never gave her the impression that he would harm Shakyla or any other child. Frederick Bullock, Williams’s brother-in-law, testified that Williams treated Shaky-la as his own child. Earline Lloyd, Williams’s aunt, testified that she had observed Williams take care of her grandchildren and that, in her opinion, Williams was not a person that would abuse a child. Shannon Atkins, the mother of Williams’s daughter, testified that she believed that Williams loved children. Linda Jackson and Patricia Washington, lifelong acquaintances of Williams, both testified that they allowed Williams to care for their children. Reverend Barry Howard, also a lifelong acquaintance of Williams, testified as to his opinion that Williams had a good reputation in the community and that he would not commit a violent act toward a child. Each of the defense witnesses, including Williams, testified that they had no knowledge of how Shakyla was burned.

¶ 9. On April 18, 2003, Williams was found guilty of capital murder and was sentenced to life imprisonment without parole. The trial court denied Williams’ motion for JNOV or, in the alternative, a new trial. Williams appeals, asserting the following issue for our review:

I. Whether Williams was denied effective assistance of counsel in violation of the Sixth Amendment of the Constitution of the United States and the Constitution of the State of Mississippi.
II. Whether the trial court erred in overruling two motions for a mistrial made by appellant during the state’s closing arguments.
III. Whether the trial court erred in allowing purported expert testimony, over the objection of Williams, as to how burns occurred to the victim as this testimony was outside the expertise of the witness.
TV. Whether the trial court erred in refusing to grant Williams’ motion for a directed verdict of acquittal at the close of the State’s case, in refusing to grant Williams’ requested peremptory instruction, and in denying Williams’ motion for JNOV, as such verdict was contrary to the law.
V. Whether the trial court erred in denying Williams’ motion for a new trial as the verdict was against the overwhelming weight of the evidence.

• ISSUES AND ANALYSIS

I. Whéther Williams was denied effective assistance of counsel in violation of the Sixth Amendment of the Constitution of the United States and the Constitution of the State of Mississippi.

¶ 10. The standard of review for a claim of ineffective assistance of counsel was set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To bring a successful claim for ineffective assistance of counsel, pursuant to the court’s ruling in Strickland, the defendant must prove that his attorney’s overall performance was deficient and that this deficiency deprived him of a fair trial. Id. at 689, 104 S.Ct. 2052; Moore v. State, 676 So.2d 244, 246 (Miss.1996) (citing Perkins v. State, 487 So.2d 791, 793 (Miss.1986)). We must be mindful of the “strong rebuttable presumption that an attorney’s performance falls within a wide range of reasonable professional assistance and that the-decisions made by .trial counsel are. strategic.” Covington v. State, 909 So.2d 160, 162(¶ 4) (Miss.Ct.App.2005) (quoting Stevenson v. State, 798 So.2d 599, 602(¶ 6) (Miss.Ct.App.2001)). To overcome this presumption, the defendant must demonstrate “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052; Woodson v. State, 845 So.2d 740, 742(¶ 9) (Miss.Ct.App.2003). This Court considers the totality of the circumstances when addressing a claim of ineffective assistance of counsel. Colenburg v. State, 735 So.2d 1099, 1103(¶ 9) (Miss.Ct.App.1999) (citing Carney v. State, 525 So.2d 776, 780 (Miss.1988)).

¶ 11. Williams asserts that he received ineffective assistance of counsel because his attorney, Johnnie E. Walls, Jr., failed to adequately investigate his case prior to trial. In support of this assertion, Williams cites Walls’s failure to review a disk containing all of the photographs taken by the State’s expert witnesses, Dr. Love and Dr. Hayne, despite the fact that the State notified Walls that the photographs were ready for his inspection. Williams also cites Walls’s decisions not to call a defense expert witness and not to cross-examine Dr. Hayne as evidence of his failure to investigate. Williams asserts that, “[h]ad Walls obtained the critical discovery held by the State,” i.e., the additional photographs, “he would have been able to not only effectively cross-examine both experts and attempt to discredit their testimony, but he also would have been able to present a vigorous and effective defense.” Therefore, Williams maintains the outcome of the trial would have been different, but for counsel’s errors.

¶ 12. In addressing Williams’s claims, we first note that Walls’s decisions not to call an expert witness and not to cross-examine Dr. Hayne are presumptively viewed by this Court as strategic and tactical decisions. Regarding Williams’s contention that the outcome of the trial would have been different had Walls obtained the additional photographs, the record suggests the contrary. During a discussion in the judge’s chambers, the State explained that the only difference between the photographs on the disk and the photographs already in the possession of Walls was that the photographs on the disk “show the condition a little bit better.” The State further explained that the photographs given to Walls and the photographs on the disk were taken at the same time, but that the photographs on the disk were “just clearer.” Moreover, the court stated that the disk photographs that Walls did not pick-up for review “[depicted] basically the same thing” as the photographs that were given to him. Considering the high degree of similarities between the photographs in question, we fail to see how examining the additional photographs would have enabled Walls to more effectively cross-examine the State’s experts to the extent that the outcome of the trial would have been different. Consequently, we find that Williams has failed to overcome the presumption that Walls’s performance fell within a wide range of reasonable professional assistance and that his decisions were strategic.

¶ 13. In addition to his assertion that Walls failed to properly investigate, Williams asserts that Walls failed to obtain a hearing on his motion for JNOV or a new trial. The motion for JNOV or a new trial alleged that Williams did not receive a fair trial because “a certain juror(s) was a habitual drunkard or an alcoholic and failed to reveal same to the Court in violation of the law and failed and/or refused to offer information that he, she, or they were close personal friends with the father of the deceased child, Michael Trisby.” Williams contends that because Walls failed to obtain a hearing, certain critical information concerning one or more of the jurors was never brought before the court. Williams further asserts that Walls compounded his error by failing to designate the voir dire of the jury panel as part of the record for appeal.

¶ 14. Williams’s vague assertion that one or more male or female jurors were habitual drunkards and/or close personal friends of the father of the victim does not present a reasonable probability that the result of the proceeding would have been different had defense counsel obtained a hearing on the motion for JNOV or a new trial. Consequently, considering the totality of the circumstances, we find that Williams has failed to rebut the strong presumption that his attorney’s performance was reasonable. This issue is without merit.

II. Whether the trial court erred in overruling two motions for a mistrial made by appellant during the State’s closing arguments.

¶ 15. Williams asserts that the trial court erred in overruling two motions for a mistrial made during the State’s closing arguments. The first motion for a mistrial was made after the State reminded the jury that the “defense didn’t even cross Dr. Hayne.” The defense made a second motion for a mistrial after the State made the following comment during closing:

MR. CARLTON: Then they want to criticize [Dr. Love] for not investigating. But he did look into the matter, he did investigate, and he concluded after that point — this is written the day she was put in the hospital. The day he saw her, that’s when that statement was made.
But when he looked into it fully and when he sat here and testified, he told you in his concluding remarks that she was held in that water.

¶ 16. The standard of review for denial of motion for mistrial is abuse of discretion. Walton v. State, 806 So.2d 333, 334(¶ 4) (Miss.Ct.App.2002) (citing Gossett v. State, 660 So.2d 1285, 1290-91 (Miss.1995)). Whether to grant such a motion for a mistrial is within the sound discretion of the trial court. Id. (citing Ladner v. State, 584 So.2d 743, 753 (Miss.1991)). “[W]hen an objection is sustained, and the trial judge admonishes the jury to disregard the statement, this Court will usually find no error, absent unusual circumstances.” Id. (quoting Pulphus v. State, 782 So.2d 1220(¶ 10) (Miss.2001)). When the trial court admonishes the jury to disregard a statement, it is presumed that the jury will follow the court’s instructions. Sharma v. State, 800 So.2d 1190, 1192 (Miss.Ct.App.2001) (citing Payne v. State, 462 So.2d 902, 904 (Miss.1984)).

¶ 17. In the case' at bar, the trial court sustained Williams’s objections to both of the State’s aforementioned comments. After Williams moved for a mistrial on the first occasion, the trial court instructed the jury to “totally disregard” the State’s comment (regarding defense counsel’s decision not to cross-examine. Dr. Hayne) because “there is no burden of proof on the defendant.” The second time Williams moved for a mistrial, the trial court again asked the jury to “totally disregard” the State’s assertion that Dr. Love testified that Shakyla was “held in that water.” The trial court further explained to the jury that the State’s assertion was “not evidence in this case.” We find that the trial court adequately instructed the jury to ignore the State’s comments. Furthermore, we do not find unusual circumstances sufficient to overcome the presumption that the jury followed the court’s instructions to ignore the State’s inappropriate comments. Accordingly, this issue is without merit.

III. Whether the trial court erred in allowing purported expert testimony, over the objection of Williams, as to how burns occurred to the victim as this testimony was outside the expertise of the witness.

¶ 18. Whether to admit expert testimony is a decision left to the sound discretion of the trial court. Marbra v. State, 904 So.2d 1169, 1176(¶ 27) (Miss.Ct.App.2004) (citing Puckett v. State, 737 So.2d 322, 342(¶ 57) (Miss.1999)). We will not reverse based on the trial court’s admission of expert testimony, unless we conclude that the admission was arbitrary and clearly erroneous, i.e., that the trial court abused its discretion. Id.

¶ 19. Williams contends that the court committed reversible error in allowing Dr. Hayne to testify as to the cause of the victim’s burns; he asserts that there was insufficient evidence to support Dr. Hayne’s conclusion. Dr. Hayne’s conclusion as to the cause of the victim’s burns was solicited by the State in the following manner:

Q. As part of being a forensic pathologist, is it also your job to determine how, or the most likelihood, that injuries occurred and death occurred?
A. Yes.
Q. Is that part of what you do?
A. That’s part of my job.
Q. All right. During the course of your examination of this body, and based on your expertise, did you formulate an expert opinion, a reasonable medical degree, as to how these burns occurred? And tell us the reasons why, how you think they occurred.
A. I did come to a conclusion.
Q. All right.
A. And the conclusion was it was purposely inflicted with immersion of this child into a water medium, a bathtub, with hot water.

Williams’s counsel objected to the preceding testimony of Dr. Hayne, and the following conference at the bench took place out of the hearing of the jury:

MR. WALLS: I object to the doctor testifying about a bathtub. There is no way for him to know that except through hearsay.
MR. CARLTON: Well, we can leave out bathtub.
THE COURT: Well, I mean, that is true. How would he know that from his — well, it is true, how would he know that from just examining the body?
MR. CARLTON: Well, he could have heard it from the coroner.
MR. GORE: I can do it in the form of a hypothetical.
THE COURT: Okay. Well, I’m going to strike what he said already, and you can ask him a question.
MR. GORE: In a hypothetical?
THE COURT: Yes.

Williams contends that the line of hypothetical questioning that followed was not hypothetical, but was “a thinly veiled method for the State to put before the jury [Dr. Hayne’s] conclusion as to how the injuries were sustained by the victim and that these injuries were the result of an intentional act of the Appellant.”

¶ 20. In addressing Williams’s claims, we first note that the use of hypothetical questioning in order to elicit expert testimony is permissible in Mississippi. See Williams v. State, 544 So.2d 782, 787 (Miss.1987). Regarding Williams contention that Dr. Hayne should not have been allowed testify as to the cause of the victim’s burns, we also note that Williams made no objections to qualifying Dr. Hayne as an expert in the field of forensic pathology, and that it is the duty of a forensic pathologist to answer “two basic questions: what was the cause of death, and what was the manner of death?” Bell v. State, 725 So.2d 836, 854(¶ 51) (Miss.1998). In Mississippi, a forensic pathologist may testify as to what caused the victim’s injuries and what trauma the injuries would produce. McGowen v. State, 859 So.2d 320, 335(¶ 53) (Miss.2003) (citing Holland v. State, 705 So.2d 307, 341 (¶ 129) (Miss.1997)). Moreover, a forensic pathologist’s testimony concerning the victim’s wounds, suffering, and the means of infliction of injury falls within the bounds of his expertise. Id. (citing Holland, 705 So.2d at 341 (¶ 127)). Consequently, we find that the court did not err in allowing Dr. Hayne to testify as to the cause of Shakyla’s injuries. This issue is without merit.

IV. Whether the trial court erred in refusing to grant Williams’ motion for a directed verdict of acquittal at the close of the State’s case, in refusing to grant Williams’ requested peremptory instruction, and in denying Williams’ motion for JNOV, as such verdict was contrary to the law.

¶ 21. A motion for directed verdict and JNOV, as well as a request for peremptory instruction, challenges the legal sufficiency of the evidence, “since each requires consideration of the evidence before the court when made.” McClain v. State, 625 So.2d 774, 778 (Miss.1993). Reversal on the issue .of legal sufficiency can only occur when evidence of one or more of the elements of the charged offense are such that “reasonable and fair-minded jurors could only find the accused not guilty.” Purnell v. State, 878 So.2d 124, 129(¶ 14) (Miss.Ct.App.2004) (citing Hawthorne v. State, 835. So.2d 14, 21(¶ 31) (Miss.2003)). However, where substantial evidence of such quality and weight exists to support the verdict, and where reasonable and fair-minded jurors may have found the appellant guilty, we must affirm the judgment of the trial court. McClendon v. State, 852 So.2d 43, 47(¶ 11) (Miss.Ct.App.2002) (citing Baker v. State, 802 So.2d 77, 81 (¶ 13) (Miss.2001)).

¶22. Williams asserts that the State’s case was based on circumstantial evidence, and that the State’s proof failed to establish sufficient evidence to support the verdict. Specifically, he asserts that the State was unable to.prove an essential element of the underlying felony of child abuse, i.e., that he intended to burn Shaky-la. Citing Steele v. State, 544 So.2d 802, 807-8 (Miss.1989), Williams argues that his conviction cannot be sustained because the State’s evidence did not exclude the possibility that Shakyla’s injuries were an accident.' We disagree.

¶23. Dr. Love testified that Shakyla was extensively burned and that most of the burns were third degree. He further testified that his examination revealed extensive burns to Shakyla’s feet, legs, buttocks, and lower back, but no burns to her hands, arms, or front torso. Dr. Love also testified that there were no splash marks on Shakyla’s body and that her injuries were likely caused by being held in hot water. Dr. Hayne likewise testified that he did not find any evidence of splash burns on Shakyla’s body, and that she had extensive full thickness thermal burn injuries on her right and left lower extremities, including the bottoms of her feet. When Dr. Hayne was given a hypothetical with facts identical to this case, i.e., a bathtub filled with hot water and a two-year-old child with injuries such as the victim sustained, he opined that the injuries would have occurred from water immersion. Moreover, Dr. Hayne testified that he would reasonably conclude that the child’s feet did not come in contact with the bottom of the bathtub, which would have been cooler than the water, as there were burns on the bottom of the hypothetical child’s feet.

¶24. Taking the aforementioned evidence into consideration, we find that the State presented substantial evidence that supports the verdict. Both Dr. Love and Dr. Hayne testified that Shakyla did not suffer splash burns and that her injuries were consistent with being held or, immersed, in hot water. Moreover, Dr. Hayne’s testimony, that a two-year-old child in a bathtub filled with hot water would not have full-thickness burns on the bottom of her feet if her feet came into contact with the cooler surface of the bottom of the bathtub, reasonably excluded the possibility that Shakyla stepped into the bathtub. Thus, both Dr. Love and Dr. Hayne’s conclusions were contrary to Williams’s testimony regarding the cause of Shakyla’s injuries. Furthermore, Do-reatha Williams testified that the victim’s burns were stocking burns and that such burns were inconsistent with Williams’ version of the events. Consequently, we find that the State’s proof was sufficient and that reasonable and fair-minded jurors may have found Williams guilty beyond a reasonable doubt. Therefore, this issue is without merit.

V. Whether the trial court erred in denying Williams’ motion for a new trial as the verdict was against the overwhelming weight of the evidence.

¶ 25. A motion for a new trial challenges the weight of the evidence. Beckum v. State, 917 So.2d 808, 812(¶ 10) (Miss.Ct.App.2005) (citing Carr v. State, 774 So.2d 469(¶ 15) (Miss.Ct.App.2000)). “When reviewing a trial court’s denial of a motion for a new trial, this Court must consider the evidence in the light most favorable to upholding the verdict.” Id. at 813(¶ 14). “We must keep in mind that it is the jury’s responsibility to resolve matters regarding the weight of the evidence and the credibility of witnesses.” Id. It is a fundamental principle of law that a jury verdict will not be disturbed except in the most extreme of situations. Washington v. State, 800 So.2d 1140, 1144(¶ 10) (Miss.2001) (citing Manning v. State, 735 So.2d 323, 333(¶ 10) (Miss.1999)). “Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Walker v. State, 881 So.2d 820, 831(¶ 32) (Miss.2004) (citing Dudley v. State, 719 So.2d 180, 182(¶ 8) (Miss.1998) (overruled on other grounds)).

¶ 26. Williams argues that “[m]ost of the State’s evidence was speculative and based on hypotheticals.” He further asserts that the evidence offered against him failed to meet the higher standard of evidence “to the exclusion of every reasonable hypothesis consistent with innocence.” After reviewing the evidence in support of Williams’s conviction, we cannot say that the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. We find that the facts and reasonable inferences drawn from those facts strongly point toward Williams’s guilt. Therefore, we decline to disturb the jury verdict in this case. This issue is without merit.

¶ 27. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

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

      . A “stocking burn” is a type of deliberate immersion bum caused by holding a child's feet in hot water. Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice, portable guide: portable guides to investigating child abuse series, Burn injuries in child abuse (June 2001).

      . Williams testified that he did not know how Shakyla fell into the bathtub or why she did not get out if the water was too hot. Williams also testified that he did not hold the child in the water.


author: SOUTHWICK, J.,

text:
    Paula RANKINS, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01373-COA.
    Court of Appeals of Mississippi.
    Sept. 5, 2006.
    Tunica County Circuit Court, Hon. Larry 0. Lewis, J.
    Paula Rankins, Appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, C.J., SOUTHWICK and IRVING, JJ.
   SOUTHWICK, J.,

for the Court.

¶ 1. This is an appeal from the denial of Paula Rankins’ motion for post-conviction relief. Since the appeal was perfected, the inmate has been released from incarceration. A discharge certifícate from the Mississippi Department of Corrections has been provided to us, dated April 5, 2006.

¶ 2. Post-conviction relief may be considered only for individuals convicted under our laws and who are presently in custody. Miss.Code Ann. § 99-39-5 (Supp.2005). Since Rankins is no longer in custody, we dismiss the appeal as moot.

¶ 3. THE APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY IS DISMISSED AS MOOT. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TUNICA COUNTY.

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


text:
    Raymond H. BURDSAL, Appellant v. MARSHALL COUNTY, Mississippi, Appellee.
    No. 2005-CA-01085-COA.
    Court of Appeals of Mississippi.
    Sept. 5, 2006.

      Christopher M. Howdeshell, attorney for appellant.
    Tacey Clark Clayton, Tupelo, attorney for appellee.

      Before LEE, P.J., SOUTHWICK and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. The Board of Supervisors for Marshall County (“the Board”) brought an action against Raymond H. Burdsal in the Chancery Court of Marshall County seeking to have Powell Chapel Road declared a public road and to enjoin Burdsal from obstructing it. After reviewing testimony and evidence on the matter, the chancellor found for the Board. Aggrieved, Burdsal appeals. Finding error, we reverse and remand.

FACTS

¶ 2. Powell Chapel Road (“the road”) is a gravel road which, according to testimony, has been in existence since the early 1900s. The road commences at the southern right-of-way line of U.S. Highway 4 in Marshall County. The road originally ran through property owned by Burdsal’s grandparents. In 1950, Burdsal’s grandparents conveyed seventy acres to Burd-sal’s mother, who later conveyed it to her children. Burdsal now owns approximately twenty-two acres adjacent to the road. Mount Hope Cemetery, a small private cemetery of the Colston family (Burdsal’s mother’s family), is located near the southeastern end of the road on the property of Ronald Mitchell. Powell Chapel Church is located on the road as well.

¶ 3. In 1997, the Board installed an “E-911” sign at the entrance to the road, which was subsequently taken down by a former supervisor for the county. - On June 12, 2000, the Board voted to hold a public hearing, scheduled for June 26, 2000, to discuss the adoption of a new road registry and map pursuant to Mississippi Code. Annotated section 65-7-1 (Rev.1998). The Board posted notice of the hearing in The South Reporter, a newspaper of general circulation in Marshall County, on June 15, 2000. The road registry and county road map were then adopted by order of the Board on June 26, 2000.

¶ 4. In January of 2004, Burdsal erected a gate and sign across the entrance of the road at the right-of-way line of U.S. Highway 4. On January 16, 2004, Larry Hall, the Marshall County road administrator, requested that Burdsal remove the gate. Burdsal complied, but left the gate posts. The Board subsequently removed the posts.

¶ 5. On February 9, 2004, the Board filed an action in the Chancery Court of Marshall County seeking to have the road declared public. The complaint also sought to enjoin Burdsal from further obstructing the road. The chancellor .made a ruling from the bench on April 19, 2005, finding that Powell Chapel Road was a public road by prescription and enjoined Burdsal from further obstructing the road. The chancellor issued a judgment on May 7, 2005, stating the same. Aggrieved, Burdsal timely appeals, asserting: (1) that the chancellor committed reversible error by declaring Powell Chapel Road a public road, and (2) that the chancellor committed reversible error by allowing testimony on behalf of the Board as to maintenance on Powell Chapel Road without supporting orders of the Board of Supervisors.

STANDARD OF REVIEW

¶ 6. We'will not disturb a chancellor’s findings of fact when supported by substantial evidence unless he abused his discretion, was manifestly wrong, or applied an improper legal standard. Dobbs v. Dobbs, 912 So.2d 491, 493 (¶ 3) (Miss.Ct.App.2005) (citing Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 8) (Miss.2002)). This Court reviews questions of law de novo. Balius v. Gaines, 908 So.2d 791, 797 (¶ 10) (Miss.Ct.App.2005) (quoting Burnett ex rel. Islam v. Burnett, 792 So.2d 1016, 1019 (¶ 6) (Miss.Ct.App.2001)).

ISSUES AND ANALYSIS

I. Whether the trial court committed reversible error in allowing testimony on behalf of the Board as to maintenance on Powell Chapel Road without supporting orders of the Board of Supervisors.

¶ 7. Burdsal argues that the chancellor erred by allowing Willie Flemón, Donald Mitchell and Larry Hall to testify as to maintenance of the road by the Board. Burdsal argues that, as these witnesses were all former and present supervisors or their employees, their parol testimony is inadmissible to tell what the Board did or did not do.

¶ 8. In Myers v. Blair, 611 So.2d 969 (Miss.1992), also a prescription case, the supreme court stated:

In Martin v. Newell, 198 Miss. 809, 815, 23 So.2d 796 (1945), the Court stated: “We have passed on this question repeatedly, saying the minutes of the board of supervisors are the exclusive evidence of what the board did.”
At the trial of this case individual supervisors, past and present, were permitted to testify the road was private or public, however, no board minutes were offered in evidence. In Smith v. Board of Supervisors of Tallahatchie County, 124 Miss. 36, 41, 86 So. 707 (1920), the Court concluded:
We also think it was error for the court to permit individual members of the board of supervisors to testify what the board did, and what the board understood, and what the board had authorized to be done in the premises. A board of supervisors can act only as a body, and its act must be evidenced by an entry on its minutes.
The minutes of the board of supervisors are the sole and exclusive evidence of what the board did. The individuals composing the board cannot act for the county, nor officially in reference to the county’s business, except as authorized by law, and the minutes of the board of supervisors must be the repository and the evidence of their official acts.

Myers, 611 So.2d at 972-3. But cf. George County v. Davis, 721 So.2d 1101, 1107 (Miss.1998) (failing to address chancellor’s allowance of admission of testimony from board members); Lee County Bd. of Supervisors v. Scott, 909 So.2d 1223, 1226 (Miss.Ct.App.2005) (failing to address circuit judge’s allowance of admission of testimony from board members).

¶ 9. Accordingly, the chancellor was in error in admitting the testimony of the present and former supervisors and their employees. If improperly admitted evidence constituted a determining factor in a chancellor’s decision, there is reversible error. Sproles v. Sproles, 782 So.2d 742, 749 (¶ 29) (Miss.2001). However, when improperly admitted evidence was not a determining factor, and the chancellor looked to the weight of other evidence, the admission of evidence is harmless. Id. The chancellor in the case sub judice stated in his bench opinion, “Everybody that’s testified, other than Mrs. Smith and Mr. Burd-sal, has said that it has been a public road all of these years. And that it is known as a public road.” Considering that the only persons other than Burdsal and Ruth Smith to testify were either current or past supervisors or their employees, it seems that such improperly admitted testimony may well have been a determining factor. However, in order to better gauge whether the chancellor viewed such testimony as a determining factor, we will evaluate the chancellor’s finding that the road was public without considering such improperly admitted testimony.

II. Whether the trial court committed reversible error by finding that Powell Chapel Road was a public road.

¶ 10. Burdsal argues that the chancellor erred by finding that the road was public. He argues that the elements of prescription were not met.

¶-ll. In order for a private road to become public by means of prescription, “it must be habitually used by the public in general for a period of ten years, and such use must be accompanied by a claim from the public of the right to do so.” Lee County Bd. of Supervisors v. Scott, 909 So.2d 1223, 1225 (¶ 7) (Miss.Ct.App.2005) (citing George County v. Davis, 721 So.2d 1101, 1107 (¶ 23) (Miss.1998)). In order to establish a successful claim for prescription, the Board must establish six elements: (1) open, notorious and visible; (2) hostile; (3) under claim of ownership; (4) exclusive; (5) peaceful; and (6) continuous and uninterrupted for at least ten years. Id. (citing Myers, 611 So.2d at 971).

(1) Open, notorious and visible

¶ 12. Excluding the inadmissible testimony, the record reveals that the congregation of Powell Chapel Church has used the road openly for more than fifty years, though Burdsal contends that the congregation has always had either his or his family’s permission to such use. Burd-sal’s testimony also reveals that the road has been used by hunters. As to evidence of maintenance of the road by Marshall County, the only admissible references to such appearing in the record are contained in the testimony of Burdsal and of Ruth Smith, a family member of Burdsal’s. Burdsal testified that he “was told” that one of his uncles, who was a supervisor at one point, “dropped a little gravel in the road from time to time.” The only other reference, from the testimony of Ruth Smith, occurred in the following exchange on cross-examination by the Board:

Q. And you know that [Willie Flemón] did some road work on Powell Chapel Road a few years back, when one of the Colstons called him and asked him to do it for a Colston funeral?
A. I do not know ... who called him. Claude said he was going to, and Mrs. Ruth Mitchell, Donny’s mother, said she was going to. And I don’t know — obviously one of them did.
A. Somebody came in there and did enough that you could get up to the cemetery.
Q. Somebody from the county?
A. I would assume they were from the county.

¶ 13. Because there is substantial evidence supporting the first element of prescription, we cannot say the chancellor erred in his finding that the possession was open, notorious and visible.

(2) Hostile

¶ 14. The use of the road by church members and hunters does not, in and of itself, establish hostility. Permissive use cannot, by definition, be hostile use; lack of objection, however, does not automatically establish consent. Moran v. Sims, 873 So.2d 1067, 1069 (¶ 7) (Miss.Ct.App.2004). It is clear that the chancellor was somewhat unclear on the requirements of this element, as evidenced by the following:

THE COURT: ... I don’t know how you do hostile on a road, other than people walk up and down the road with a sign saying this is a public road. I don’t know how you would do it. But it’s evident to the Court and the testimony before the Court, and from what the Court viewed when the Court went out there, that this is a well-traveled road. That it is well-maintained up to the point where Powell Chapel Church is, and after that it is just — it’s nothing, just a trail.

¶ 15. Burdsal testified that “we gave [the church members] permission to use to — to go to their church until something could have been done [about the fact that the road the church members had been using had washed out].” Burdsal’s testimony as to granting permission is corroborated by the fact that his grandfather, since the 1950s, paid to put up a sign on his property identifying church times and services.

¶ 16. The only things in the record suggesting hostility of possession were: the erecting of an “E-911” sign in 1997, which was later taken down; and in January of 2004, when Burdsal erected a gate, which Board subsequently asked him to remove. Burdsal testified that he erected the gate at this point because he was starting to remodel his grandparents’ old house. Burdsal removed the gate at the request of the Board, but left the gate posts standing; however, the Board subsequently removed the posts.

¶ 17. Thus, we find nothing else in the record suggesting hostile possession by Marshall County prior to at least 1997. As a result, we find that the chancellor erred by finding the element of hostility of possession to be met.

(S) Under claim, of ownership

¶ 18. There was evidence, though sparse without the inadmissible testimony, that Marshall County performed maintenance on the road. This element is thus established.

(⅜) Exclusive

¶ 19. The definition of exclusivity of possession when dealing with prescription and adverse possession was stated by this Court in Lynn v. Soterra, Inc., 802 So.2d 162, 168 (¶ 17) (Miss.Ct.App.2001): “The question in the end is whether the posses-sory acts relied upon by the would be adverse possessor are sufficient to fly his flag over the lands and to put the record title holder upon notice that the lands are held under an adverse claim of ownership.” See Keener Properties, L.L.C. v. Wilson, 912 So.2d 954, 956 (¶ 6) (Miss.2005) (adopting above definition). “Exclusivity ... means that the use was consistent with an exclusive claim to the right to use.” Wilson, 912 So.2d at 957 (¶ 7) (quoting Moran, 873 So.2d at 1069-70 (¶ 10)).

¶ 20. The record reveals that the public did not have an exclusive claim to the right to use of the road. Burdsal’s testimony, that he gave the church members permission to use the road, suggests that church members’ use of the road was not a right, but a privilege granted by him. As stated earlier, Burdsal’s testimony as to granting permission is corroborated by the fact that, in the 1950’s, Burdsal’s grandfather erected a sign on his property announcing the times of various church services. Therefore, we conclude that the possessory acts in this case were not sufficient to put Burdsal upon notice that the road was being held under an adverse claim of ownership. This element has not been established.

(5) Peaceful

¶ 21. Again, there seems to have been no controversy over ownership of the road until the erection of the E-911 sign in 1997 and Burdsal’s erection of the gate in January 2004. This element is established.

(6) Continuous and uninterrupted for at least ten years

¶ 22. The road has continued to be used in the same fashion for more than fifty years. As mentioned, however, without including the improperly admitted testimony, the elements of prescription simply cannot be met for the ten-year requirement.

¶ 23. In sum, we find that two of the elements for prescription have not been met, namely, exclusivity and continuous and uninterrupted for ten years. We also find that the chancellor improperly admitted the testimony of the present and former supervisors and their employees and that such testimony was a determinative factor in the chancellor’s decision. Therefore, we reverse the decision of the chancery court and remand this matter for a new trial.

¶ 24. THE JUDGMENT OF THE CHANCERY COURT OF MARSHALL COUNTY IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARSHALL COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, BARNES, AND ROBERTS, JJ„ CONCUR. IRVING, J., CONCURS IN RESULT ONLY.


text:
    Marilyn S. COOPER, Appellant v. MISSISSIPPI DEPARTMENT OF REHABILITATION SERVICES and Mississippi State Agencies Workers' Compensation Trust, Appellees.
    No. 2005-WC-00980-COA.
    Court of Appeals of Mississippi.
    Sept. 5, 2006.
    Henry Palmer, attorney for appellant.
    Tameka Wilder Buck, Diane V. Pradat, Jackson, attorneys for appellees.

      Before LEE, P.J., SOUTHWICK and ISHEE, JJ.
   SOUTHWICK, J.,

for the Court.

¶ 1. An employee of a state agency suffered from severe allergic reactions to her environment. Questions before the Workers’ Compensation Commission included the extent to which these difficulties were work-related and the point in time at which the employee should have known of her claim. The Commission found no basis to award benefits. We agree and affirm.

FACTS

¶ 2. Marilyn Cooper began working as a secretary at the Mississippi Department of Rehabilitation Services in 1988. She first complained in 1993 of sinus and allergy problems due to certain workplace chemicals such as cleaning agents and diesel fuel fumes. She sought treatment from otolar-yngologist Dr. Joseph Seifker in 1995. When her complaints persisted, Dr. Seifker referred her in 1998 to Dr. William Rea, a cardiologist in Dallas, Texas. Dr. Rea diagnosed Cooper as having total physical impairment due to a toxic exposure allergy to chemicals.

¶ 3. In April 1998, Cooper filed a petition to controvert with the Commission. The Department filed a response denying injury and pleading that the statute of limitations barred the claim. Hearings were conducted by an administrative judge in October 2002 and March 2003. The judge denied the claim on July 9, 2003, holding as follows:

(1) The two-year statute of limitations commenced in October 1995 since at that time it was “reasonably apparent” to Cooper that a work-related injury occurred;
(2) The claim was therefore time-barred because she did not file until April 1998;
(3)Alternatively, Cooper’s injury was not work-related and therefore it was not compensable.

¶ 4. Cooper appealed to the Commission, which upheld the ruling in February 2004. The Lauderdale County Circuit Court affirmed on appeal. We provide the next stage appellate review.

DISCUSSION

¶ 5. There are two issues in this case. The first is whether Cooper filed her claim after the pertinent statute of limitations had run. The second is whether Cooper’s injury was work-related. Each is a sufficient basis on which to uphold the decision. We closely examine only the first.

ISSUE 1: Statute of limitations.

¶ 6. The relevant statute of limitations requires that a claim for workers’ compensation be brought within two years from the date of the injury. Miss.Code Ann. § 71-3-35(1) (Rev.2000). It is uncontested that the claim was filed more than two years after the date that Cooper first learned from a physician that her physical complaints were likely work-related. The claimant describes the knowledge that she first gained as insufficient to inform her of the seriousness of the injury or to alert her to the future worsening of her condition.

¶ 7. Cooper first sought treatment for allergic and respiratory complaints from Dr. Siefker on October 9, 1995. Dr. Siefker notified Cooper in December 1995 that her respiratory problems may have been work-related. Cooper testified that she experienced severe respiratory problems in 1993 and had suffered from related problems since around 1985, when she began receiving allergy shots.

¶ 8. Dr. Seifker diagnosed Cooper as having extreme sensitivity to chemicals. Because he could not pinpoint the exact cause after numerous visits spanning over two years, Dr. Seifker referred Cooper to Dr. Rea, a Texas cardiologist who had a sub-specialty in environmental medicine. She went to Dr. Rea’s Dallas office in July 1998. Dr. Rea diagnosed her as having toxic exposure to chemicals, but he did not specify which chemicals were problematic.

¶ 9. Cooper argues that the July 1998 visit to Dr. Rea was the first notice that she had of the significance of her work environment. If that is so, the notice occurred after she filed -her petition to controvert in April 1998 claiming a work-connection for her illnesses. At the hearing, Cooper admitted that she learned from Dr. Seifker in October 1995 that .her condition could be related to her work environment. Cooper was shown a document she had prepared, dated December 4, 1997, and entitled “Conditions that Lead Up to Marilyn Cooper’s Chemical Sensitivity.” In that document Cooper recorded that Dr. Seifker asked her where she had been exposed to so many chemicals, and she told him that it was at her workplace. She agreed that Dr. Seifker at least suspected that her problems were related to work but testified that he was not certain.

¶ 10. In addition, Cooper testified that she completed the Commission’s B-31 form in September 1996 in an effort to receive benefits. We do not find the form in the record. The B-31 form is used for the final report of payment, prepared and submitted by an employer. Cooper may have meant the B-3 form that is the first report of an injury. Regardless of which form she used, Cooper testified that she wrote on the document that she had notified her employer of a work-connection to her ailments on June 23, 1995, and that she indicated her problems were workplace “smells.”

¶ 11. It is evident from Cooper’s testimony that for years she suffered severe allergic reactions. Measures were being taken at work to address them. Cooper had been hospitalized eight times from 1993 to 1996 due to her reaction to her work environment. The administrative judge noted that her employer “attempted to alleviate her problems by changing the products used to clean the bath rooms and asking employees to refrain from using perfumes, sprays,” and similar chemicals.

¶ 12. The evidence is convincing that as of 1995, Cooper believed that her job was causing health problems. There was no substantial evidence that events after 1995 created her problems or for the first time made them disabling. The clear evidentia-ry picture is that Cooper had allergic reactions throughout the 1990’s and even earlier, and she believed no later than 1995 that her symptoms were work-related. What she denies is that she knew in 1995 that her problems were compensable.

¶ 13. Cooper refers us to a precedent in which a claimant knew that he suffered a minor injury at work, but he did not know until a few years later that serious health, problems arose from that incident. Pepsi Cola Bottling Co. v. Long, 362 So.2d 182 (Miss.1978). The claimant, Long, hit his head when hurriedly entering the cab of a company truck. He reported the incident but received neither treatment nor benefits. A few months later his recurring neck pain caused him to seek treatment. After an examination, Long was told that there was no medical problem. Id. at 183. It was two years later that he began to suffer blackouts ostensibly caused by the earlier injury.

¶ 14. The Supreme Court held that it was “virtually impossible” for Long to know at the time of the minor injury that it would develop, two years later, into a compensable one. The injury was therefore latent. In finding that the two-year statute of limitations did not expire prior to the claim being brought, the Court said that the limitations period began when “with reasonable care and diligence it is discoverable and apparent” that a compen-sable injury exists. Id. at 185.

¶ 15. One year after Long, the Supreme Court elaborated on this holding by stating in reviewing a claim based on hypertension, that the statute of limitations begins when an employee knows or should as a reasonable person have known of “the nature, seriousness and disabling character of his disease.” Quaker Oats v. Miller, 370 So.2d 1363, 1366 (Miss.1979). The claimant “was aware of his illness, had knowledge of its nature, its seriousness, and the aggravation, leading to disability, was work-related. The claimant did not know his disability entitled him to payment, i.e., it was compensable.” Id. A claimant’s knowledge of the right to compensation was irrelevant; instead, it was sufficient that the claimant knew “that the injury or disease was work related.” Id.

¶ 16. Certainly there is no purpose in encouraging the filing of a claim when a minor injury occurs during employment that does not seem to have any long-term significance. The Commission, though, found that Cooper’s health problems were anything but latent. She believed as of June 1995 and had a diagnosis in October 1995 that there was a work-connection. The administrative judge relied on evidence that Cooper had been affected by chemicals used at work at least since 1993.

¶ 17. Perhaps Cooper’s problems were worsening throughout her work, and her condition in 1995 when she believed there was a work connection was less severe than in 1998 when she filed her claim. Such increasingly severe effects of a work-related injury do not delay the commencement of the limitations period so long as the standards we quoted from Long and Quaker Oats are met. Benoist Elevator Co. v. Mitchell, 485 So.2d 1068, 1070 (Miss.1986). Cooper was aware of her condition, its disabling character, and its alleged relationship to her workplace. Even if the physical effects got worse over time, that does not alter that it was known to be disabling in 1995.

¶ 18. There is some similarity to Cooper’s situation and that of a precedent from this Court. Univ. of S. Miss. v. Gillis, 872 So.2d 60 (Miss.App.2003). The claimant was allergic to cigarette smoke. We held that the claimant who suffered from Lupus and Meniere’s disease was reasonably aware of the potential damage to her health from cigarette smoke at her workplace. Though first exposed perhaps in 1990 or at the latest in June 1993, the claimant did not file a petition to controvert until September 1995. A reasonable person would have known between 1990 and 1993 that cigarette smoke would aggravate these conditions. Similarly, a reasonable person suffering from ailments that are disabling, who believes conditions at the workplace are contributing to her physical distress, is required to act timely. Cooper did not.

¶ 19. No later than October 9, 1995, with Dr. Siefker’s diagnosis, the two-year statute of limitations on Cooper’s claim commenced. Since the claim was filed in 1998, it is time-barred.

ISSUE 2: Work-related.

¶ 20. There was considerable 'disagreement below regarding whether Cooper’s problems were shown to be work-related. We find clear evidence that one of her doctors and Cooper herself perceived a work-connection no later than October 1995. There was also considerable evidence and argument that Cooper unfortunately suffers from a debilitating allergy to a very large percentage of the chemicals that she encounters daily where she lives and works. Because of our ruling on the limitations issue, we need not resolve whether there was reversible error in the Commission’s denial that sufficient evidence existed that her physical ailments were work-related.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY AFFIRMING THE DECISION OF THE WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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