text:
    Terry HAMPTON, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CA-01211-COA.
    Court of Appeals of Mississippi.
    Oct. 2, 2007.

      Edmund J. Phillips, Jr., attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ISHEE, JJ.
   ISHEE, J., for the Court.

¶ 1. On July 14, 2006, Terry Hampton was convicted in the Circuit Court of Neshoba County for possession of cocaine and sentenced to serve a term of four years in the custody of the Mississippi Department of Corrections and pay a fine of $1,500. Hampton filed a motion for a new trial, which the court denied. Aggrieved by the court’s decision, he appeals asserting the following issues for this Court’s review: (1) the court erred in denying Hampton’s motion to suppress the results of the search of his pocket at the roadblock checkpoint, and (2) the court erred in sustaining the State’s objection to cross-examination of a law enforcement officer about the published checkpoint policies and procedures of the Neshoba County Sheriffs Department. Finding no error, we affirm.

FACTS

¶ 2. Hampton was indicted by a Neshoba County grand jury on May 2, 2005, for possession of “a schedule II controlled substance, namely cocaine, in an amount of more than .10 grams but less than 2 grams.” A trial was held on July 12, 2006, in the Circuit Court of Neshoba County before Judge Marcus D. Gordon.

¶ 3. On November 29, 2004, the Neshoba County Sheriffs Department established a driver’s license checkpoint at the intersection of Road 147 and County Road 604, during the daytime hours. Hampton stopped at the checkpoint and was asked for his driver’s license by Deputy Sheriff Herbert Johnson, to which he told Deputy Johnson he did not have a license. In testimony outside the presence of the jury, Deputy Johnson identified Hampton as the driver of the black Chrysler automobile that he encountered at the checkpoint. Johnson testified that he was outside the automobile, standing above Hampton as he sat in the driver’s seat, and that he observed an open twelve ounce beer bottle and what he thought to be a marijuana cigarette in Hampton’s left shirt pocket, as well as what he believed to be crack cocaine. He also observed that Hampton’s eyes were very red and that there was a strong smell of alcohol coming from the vehicle. Johnson testified that when questioned about whether he had been drinking, Hampton admitted that he had drunk three beers at the casino and was drinking the one that was open in the vehicle.

¶ 4. After verifying Hampton’s Social Security card that he presented to Deputy Johnson, Johnson asked Hampton to exit the vehicle and he was then placed under arrest for a possible DUI. Following the arrest, Johnson conducted a search of Hampton at which time he observed “one marijuana cigarette and two off-white rock substances which appeared to be crack cocaine” in Hampton’s left shirt pocket. Johnson called Narcotics Officer Richard Sistrunk to come assist with the removal of the items found in Hampton’s shirt pocket.

¶ 5. Sistrunk testified that after being called over to Hampton by Deputy Johnson, he observed “two off-white rock-like substances” in Hampton’s shirt pocket, as well as a “green leafy-type substance.” Sistrunk removed the items and placed them into an evidence bag, with Johnson’s assistance, and then sealed the bag. The bag was then sent to the crime lab for testing and analyzation of the substances.

¶ 6. Grady Downey, the forensic scientist expert, who analyzed the substances testified that the off-white, rock-like substance was identified as “cocaine base with a weight of 0.38 gram.” Downey explained that cocaine base was the term used for cocaine, which was most commonly known as crack on the streets.

¶ 7. After the State rested its case-in-chief, Hampton, after being informed of his rights, chose not to testify and did not call any other witnesses for his defense. Therefore, after Hampton rested, he motioned for a directed verdict which was overruled. The court gave the jury instructions, closing arguments were made, and the jury retired to deliberate. The jury returned a verdict of guilty for the charge of possession of cocaine. On July 14, 2006, the court sentenced Hampton to a term of four years in the custody of the Mississippi Department of Corrections and ordered him to pay a fine of $1,500. After sentencing, Hampton made a motion for a new trial or other relief asserting the verdict was against the overwhelming weight of the evidence presented, which the court overruled. Aggrieved, Hampton appeals.

STANDARD OF REVIEW

¶ 8. 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, 472 (¶ 15) (Miss.Ct.App.2000)). Upon review of 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 will only reverse a trial court’s decision when convinced that there was an abuse of discretion in failing to grant a new trial. Dudley v. State, 719 So.2d 180, 182 (¶ 7) (Miss.1998) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)).

ISSUES AND ANALYSIS

(1.) The court erred in denying Hampton’s motion to suppress the results of the search of his pocket at the roadblock checkpoint.

¶ 9. In Garrison v. State, 918 So.2d 846, 848(¶ 10) (Miss.Ct.App.2005), when reviewing the denial of a motion to suppress, this Court looks to determine whether the trial court’s findings, considering the totality of the circumstances, are supported by substantial credible evidence. Id. (citing Price v. State, 752 So.2d 1070, 1073 (¶ 9) (Miss.Ct.App.1999)). Where supported by substantial credible evidence, this Court will not disturb those findings. Price, 752 So.2d at 1073 (¶ 9). The standard of review for evidentiary matters has been stated by our supreme court as follows:

“The relevancy and admissibility of evidence are left, in large part, to the discretion of the trial court. However, this discretion must be exercised within the confines of the Mississippi Rules of Evidence. Reversal is proper only where such discretion has been abused and a substantial right of a party has been affected.” Mitchell v. State, 792 So.2d 192, 217(95) (Miss.2001) (citing Johnston v. State, 567 So.2d 237, 238 (Miss.1990)).

¶ 10. The Supreme Court established a balancing requirement for law enforcement’s stops and the limited detention involved with checkpoints versus roving patrol stops in Camara v. Municipal Court of San Francisco, 387 U.S. 523, 539, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). Additionally, the court held in United States v. Martinez-Fuerte, 428 U.S. 543, 558, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), that fixed checkpoints by law enforcement generate considerably less concern or fright by lawful travelers due to their subjective intrusion; therefore, the court will review such procedures under a different light than that of roving patrol stops. Johnston v. State, 853 So.2d 144, 145-46(¶ 4) (Miss.Ct.App.2003) (citing Martinez-Fuerte, 428 U.S. at 558, 96 S.Ct. 3074). Therefore, we must apply the three requirements established by the Camara court to find a checkpoint by law enforcement valid. The requirements are as follows: (1) existence of a strong public interest in maximizing success in combating the problem at hand, (2) an inability to achieve adequate results by relying on probable cause determinations, and (3) the “relatively limited invasion of the citizen’s privacy” involved in the procedure in question. Johnston, 853 So.2d at 146(¶ 4) (citing Camara, 387 U.S. at 537, 87 S.Ct. 1727). The Johnston court states that in applying the Camara standards “that required stops in these situations for the purpose of checking valid driver’s license would be reasonable” for purposes of the Fourth Amendment. Johnston, 853 So.2d at 146(¶ 4); Edwards v. State, 795 So.2d 554, 557-58(¶ 12) (Miss.Ct.App.2001).

¶ 11. Hampton submits that the checkpoint conducted by the Neshoba County Sheriffs Department on November 29, 2004, was unreasonable because its purpose was “general law enforcement and was not precisely specified.” Hampton asserts that because the evidence obtained from the unreasonable search was inadmissible, specifically the 0.38 grams of cocaine, the verdict does not support the evidence. We disagree.

¶ 12. Deputy Sheriff Johnson testified that the purpose of the checkpoint on the afternoon of November 29, 2004, was to check for driver’s license. Narcotics Officer Sistrunk also testified that the purpose of the checkpoint was “checking driver’s license, insurance, and tags.” Additionally, both officers testified that the checkpoint was approved by Chief Deputy Wyatt Wadell; though there was conflicting testimony as to the location and time that approval was obtained, the trial court did not find that critical and neither do we.

¶ 13. The facts of the present case are similar to those in Dixon v. State, 828 So.2d 844, 845(¶ 3) (Miss.Ct.App.2002), where Dixon was stopped at a checkpoint in Greene County and arrested for possible DUI. Id. Dixon argued the checkpoint was unreasonable and in violation of his Fourth Amendment rights; therefore, the results of the Intoxilyzer should have been suppressed from the evidence at trial. Id. The purpose of the checkpoint was to check for valid tags, inspection stickers, license, and traffic violations. Id. Additionally, all vehicles were required to stop at the checkpoint, although no log was maintained of the activity or duration of the checkpoint, as was the case with the Neshoba County checkpoint in the present matter. Id. This Court found the checkpoint to be reasonable and that there had been no violation of Dixon’s constitutional rights. Dixon, 828 So.2d at 846 (¶¶ 8-9). Following the Court’s previous holding in Briggs v. State, 741 So.2d 986, 989 (¶ 8) (Miss.Ct.App.1999), that the State does arguably have an interest in seeing that drivers of vehicles are properly registered and in making sure vehicles are properly registered and inspected, we found that Dixon had not shown that the checkpoint was conducted in any unreasonable manner or was overly intrusive. Dixon, 828 So.2d at 846 (¶ 9) (citing Briggs, 741 So.2d at 989 (¶ 8)).

¶ 14. Two Neshoba County Sheriffs Department officers testified that the purpose of the roadblock was to check for valid driver’s licenses and we find, as we did in Briggs and Dixon, that the checkpoint was reasonable and had a valid purpose. Additionally, we find that substantial credible evidence exists to support the trial court’s admission of the cocaine into evidence, and we will not disturb its findings. Accordingly, this issue is without merit.

(2.) The court erred in sustaining the State’s objection to cross-examination of a law enforcement officer about the published checkpoint policies and procedures of the Neshoba County Sheriffs Department.

¶ 15. We review the trial judge’s limiting of cross-examination under an abuse of discretion standard. Jefferson v. State, 818 So.2d 1099, 1109 (¶ 24) (Miss.2002) (citing McDowell v. State, 807 So.2d 418, 422 (¶ 24) (Miss.2001)). While the scope of cross-examination is ordinarily broad, it is within the sound discretion of the trial court, and the trial court possesses the inherent power to limit cross-examination to relevant factual issues. Smith v. State, 733 So.2d 793, 801(¶ 37) (Miss.1999) (citing Pace v. State, 473 So.2d 167, 169 (Miss.1985)); Dozier v. State, 257 So.2d 857, 858 (Miss.1972).

¶ 16. Hampton argues the trial judge erred when he sustained the State’s objection to his questioning on cross-examination of Deputy Johnson regarding the document marked “Defendant’s Exhibit 1,” which was submitted as an exhibit to Hampton’s motion to suppress. The motion to suppress challenged the constitutionality of the checkpoint. The basis of the State’s objection was that the document, characterized as a policies and procedures manual, was admitted for identification in the suppression hearing only and outside the presence of the jury. The court sustained the State’s objection, ruling that the document was an “exhibit to the motion that you [Collins] made out of the presence of the jury, which then calls for a legal opinion as to the foundation of your [Collins] motion. It’s not then a matter of issue for the jury to decide.... ” Furthermore, the court stated the document “called for the court’s ruling as to the validity of the circumstances.... ” We agree with the court’s ruling to sustain the State’s objection to the line of questions regarding the Neshoba County Sheriffs Department’s policy and procedure to establish a valid checkpoint. Hampton submits that the checkpoint was unreasonable, which is a constitutional challenge for the trial judge; therefore, his line of questioning regarding the document was irrelevant to the factual issue before the jury, that being the charge of possession of cocaine. The trial judge had already ruled on the motion to suppress and found that the evidence should not be suppressed because the search stemmed from a valid checkpoint set up by the Neshoba County Sheriffs Department. Therefore, we find the court did not abuse it’s discretion by sustaining the State’s objection to limit cross-examination of Deputy Johnson. Accordingly, this issue is without merit.

¶ 17. THE JUDGMENT OF THE NESHOBA COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF COCAINE AND SENTENCE OF FOUR YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAY A FINE OF $1,500 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NESHOBA COUNTY.

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

      . At the start of Deputy Johnson's testimony, Hampton made a motion to suppress. The jury was excused and the State called two witnesses, Deputy Johnson and Officer Richard Sistrunk. Chris Collins, Hampton's counsel, then made an oral motion to suppress the evidence seized at the checkpoint, submitting to the court that the proper policies and procedures were not followed in establishing the checkpoint; therefore, the evidence seized at the checkpoint should be suppressed. Collins’s contention rested on the United States Supreme Court case, City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). The court overruled the motion to suppress.


source: Caselaw Access Project

author: MYERS, P.J., for the Court.

license: Public Domain

text:
    Marvin CHESTNUT, Appellant, v. DAIRY FRESH CORPORATION and Great American Assurance Company, Appellees.
    No. 2006-WC-01985-COA.
    Court of Appeals of Mississippi.
    Oct. 16, 2007.

      Michael Adelman, Hattiesburg, attorney for appellant.
    J. Andrew Hughes, Tupelo, attorney for appellees.
    Before MYERS, P.J., BARNES and ROBERTS, JJ.
   MYERS, P.J., for the Court.

¶ 1. At issue in this appeal is whether the Forrest County Circuit Court erred in affirming the decision of the Mississippi Workers’ Compensation Commission, which denied permanent disability benefits to Marvin Chestnut. Chestnut sustained a compensable injury to his back while working at Dairy Fresh, for which he was awarded temporary total disability benefits. However, Chestnut was denied permanent partial disability benefits for failure to conduct the required job search effort. The Commission subsequently affirmed, as did the circuit court. Chestnut argues that he has not yet reached maximum medical improvement and, therefore, he is not required to resume working. Finding no error in the decision of the lower court, we affirm.

STANDARD OF REVIEW

¶ 2. We follow the direction of our supreme court in stating our standard of review,

This Court is bound by the decision of the Mississippi Workers’ Compensation Commission if the Commission’s findings of fact are supported by substantial evidence .... Stated differently, this Court will reverse the Commission’s order only if it finds that order clearly erroneous and contrary to the overwhelming weight of the evidence. A finding is clearly erroneous when, although there is some slight evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made by the Commission in its findings of fact and in its application of the Act.

Barber Seafood, Inc. v. Smith, 911 So.2d 454, 461(¶ 27) (Miss.2005) (quoting Hardaway Co. v. Bradley, 887 So.2d 793, 795(¶ 11) (Miss.2004) (citations omitted)).

FACTS

¶ 3. Following Chestnut’s back injury, he sought medical treatment with Drs. Michael Patterson and James Antinnes. Initially, both physicians recommended surgery. However, upon viewing a surveillance video depicting Chestnut changing a flat tire and picking up a child, both surgeons reneged on their initial medical opinions, and discontinued their recommendation of surgery. Dr. Antinnes opined that Chestnut reached maximum medical improvement on August 18, 2003, and the administrative judge adopted this date, as well. Upon Chestnut’s release back to work, he was assigned a ten percent impairment rating by Dr. Patterson, and restricted to light level work. However, Chestnut did not report back to work and present his work restrictions to Dairy Fresh for accommodation. Save one attempt to perform yard work for a friend, Chestnut did' not search for alternative employment after being released to return to work. The administrative judge found that Chestnut did not perform a reasonable work search, and'this finding served as the basis for denying Chestnut’s claim of permanent disability under the precedent of Dulaney v. National Pizza Co., 733 So.2d 301, 304(¶ 9) (Miss.Ct.App.1998).

DISCUSSION

¶4. To be compensated for a disability under the Mississippi Workers’ Compensation Act, the injured employee bears the general burden of proof of establishing by a preponderance of the evidence that an accidental injury occurred arising out of employment, and showing the existence of a causal connection between the injury and the claimed disability. Bryan Foods, Inc. v. White, 913 So.2d 1003, 1008(¶ 18) (Miss.Ct.App.2005); Mid-Delta Home Health, Inc. v. Robertson, 749 So.2d 379, 385(¶ 21) (Miss.Ct.App.1999). Mississippi Code Annotated section 71-3-17(c)(25) (Rev.2000), controls compensation for a claimant that has suffered a permanent partial non-scheduled member injury and reads in pertinent part:

the compensation shall be sixty-six and two-thirds percent (66-2/3%) of the difference between his average weekly wages, subject to the maximum limitations as to weekly benefits as set up in this chapter, and his wage-earning capacity thereafter in the same employment or otherwise ...

¶ 5. In determining the extent of the claimant’s disability in terms of his loss of wage earning capacity, the Commission considers the employee’s actual wages earned prior to the injury as compared to the employee’s capacity to earn those same wages after the injury, as well as other factors such as the employee’s age, education, training and work experience, and his ability to return to the same or other employment. DeLaughter v. South Cent. Tractor Parts, 642 So.2d 375, 379 (Miss. 1994). When the claimant has not returned to work alter reaching maximum medical recovery, the claimant must establish either that he has sought and been unable to obtain work in similar or other jobs or show that, upon his reaching maximum medical improvement, he reported back to his employer and the employer refused to reinstate or rehire him. Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1226 (Miss.1997); Barnes v. Jones Lumber Co., 637 So.2d 867, 869 (Miss.1994); Jordan v. Hercules, Inc., 600 So.2d 179, 183 (Miss.1992).

¶ 6. Chestnut argues that he has yet to reach maximum medical improvement, and therefore, the Commission’s finding that he failed to report back to Dairy Fresh or seek employment elsewhere was premature. The Commission has the primary duty to analyze the evidence before it and to determine whether a claimant has reached maximum medical improvement or recovery. Alumax Extrusions Inc. v. Wright, 737 So.2d 416, 420(¶ 10) (Miss.Ct.App.1998). After viewing the surveillance video depicting Chestnut changing a flat tire and picking up a child, both of Chestnut’s physicians opined that Chestnut had reached maximum medical improvement. The Commission adopted the doctor’s opinions in making its findings. Considering the evidence that the Commission had before it, we cannot find that its decision that Chestnut had reached maximum medical recovery on August 18, 2003 was error.

¶ 7. Because we find that the Commission was not in error in deciding that Chestnut had met maximum medical improvement, we turn our review to determine whether the Commission erred in finding that Chestnut failed to meet his burden of showing a permanent partial disability. The law of workers’ compensation is well-settled when a claimant, after reaching maximum medical improvement, fails to prove that he sought, but nonetheless failed, to regain employment or secure alternate employment, an award of permanent disability benefits is precluded. Hale, 687 So.2d at 1228; Walker Mfg. Co. v. Cantrell, 577 So.2d 1243, 1249 (Miss.1991); Piper Industries, Inc. v. Herod, 560 So.2d 732, 735 (Miss.1990); Pontotoc Wire Products Co. v. Ferguson, 384 So.2d 601, 603 (Miss.1980). Even if a claimant has been assigned a permanent impairment rating and working restrictions, an administrative judge may deny permanent partial disability benefits if the claimant has made no effort to return to his previous employer or sought suitable alternative employment. Sardis Luggage Co. v. Wilson, 374 So.2d 826, 829 (Miss.1979); Cuevas v. Copa Casino, 828 So.2d 851, 858(¶ 21) (Miss.Ct.App.2002); Wagner v. Hancock Med. Ctr., 825 So.2d 703, 706(¶ 12) (Miss.Ct.App.2002); Owens v. Washington Furniture Co., 780 So.2d 643, 647(¶ 12) (Miss.Ct.App.2000); Dulaney, 733 So.2d at 304(¶ 8).

¶ 8. “The claimant has the burden of proof to establish her right to compensation under the law, and the Mississippi Supreme Court has held that, even in the case where the claimant cannot return to her former employment, an unexcused failure to show an effort to explore other employment opportunities more suited to the claimant’s post-injury condition is fatal to a claim for permanent disability.” Wagner, 825 So.2d at 706(¶ 12). “One attempt at finding employment has been held to not be sufficient.” Cuevas, 828 So.2d at 858(¶ 21) (citing Compere’s Nursing Home v. Biddy, 243 So.2d 412, 414 (Miss.1971)). Here, the Commission found that Chestnut’s reaching maximum medical improvement, and his failure to make a reasonable effort to find employment following release from his physicians, constitutes a bar as to his ability to present a prima, facie ease of permanent partial disability. We agree. Even assuming that Chestnut’s endeavor to perform yard work for a friend constitutes a job search, this one attempt at securing alternative employment is insufficient to demonstrate a permanent partial disability. Accordingly, the judgment of the lower court is affirmed.

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

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


text:
    Anita Williams SIMPSON, Appellant v. The ESTATE of Robert Joshua WILLIAMS, II, Deceased, and Deborah Williams Avery, Administratrix, Appellees.
    No. 2006-CA-00670-COA.
    Court of Appeals of Mississippi.
    Oct. 16, 2007.
    Troy A. McFarland, attorney for appellant.
    James L. Gray, Picayune, attorney for appellees.
    Before MYERS, P.J., BARNES and ROBERTS, JJ.
   MYERS, P.J., for the Court.

¶ 1. At issue in this case is whether the Chancery Court of Pearl River County erred in finding that certain funds belonged to the Estate of Robert Joshua Williams, II (R.J. Williams). The chancellor found that Anita Williams Simpson voluntarily and freely relinquished her entitlement to the decedent’s bank account funds when she executed a release of the funds and agreed to transfer the funds to the estate. Finding no error in the decision of the chancellor, we affirm.

DISCUSSION

¶ 2. R.J. Williams died testate on June 9, 1996, leaving four children as his heirs-at-law, including Anita Simpson. Williams left, amongst other monies, a bank account which held $63,714.61. Simpson was listed as the beneficiary of this account. In September of 1996, the children met regarding Williams’ aforementioned bank account. At this meeting, each of the heirs executed an agreement, releasing any right, title, and interest they may have to the funds in the bank account and transferring the funds to Williams’ estate account.

¶ 3. Three years later, Simpson petitioned the Pearl River Chancery Court, requesting that she be awarded the funds of the bank account. Simpson argued to the lower court that the only reason she agreed to execute the release and transfer the funds of the bank account to the estate was because she was advised such a transfer was necessary for tax purposes. At the hearing on the matter, the executed release agreement was introduced into evidence. Testimony was taken from several witnesses, including Simpson. Simpson testified that she was unaware that she was listed as the beneficiary to the bank account funds before she signed the release form, and did not understand the extent of her waiver upon execution of the release agreement. Further testimony adduced that Simpson was in the midst of a divorce and a lien had been imposed against any proceeds that she would receive from the estate.

¶ 4. The chancery court declined to award the funds to Simpson, finding that the funds became the property of the estate when they were deposited into the account owned by the estate, following Simpson’s execution of the release agreement. While the chancellor noted that the transaction in which Simpson released her right to the funds was puzzling, the court found no fraud or coercion was involved in the execution of the release agreement, and thus, the release agreement was a valid waiver. Because the release agreement served as a valid waiver of the rights to the bank account funds, the funds belonged to the estate and the chancellor declined to award Simpson the relief she sought. Aggrieved, Simpson appeals, seeking review of whether the lower court erred in failing to first determine whether the funds belonged to Simpson prior to the transfer of the funds to the estate account.

¶ 5. We review a chancellor’s decision under a limited standard of review. McNeil v. Hester, 753 So.2d 1057, 1063(¶ 21) (Miss.2000). “[T]he chancellor’s findings will be upheld unless those findings are clearly erroneous or an erroneous legal standard was applied.” Hodges v. Hodges, 807 So.2d 438, 442(¶ 14) (Miss.2002).

¶ 6. Simpson signed a valid release relinquishing any and all right, title, and interest in and to the bank account funds. While Simpson argued that she was unaware that the agreement she signed released the funds to be deposited into the estate account, the judge found that her acts were her own, and that she was responsible for them. Because the trial judge determined that Simpson released her right and title to the bank account funds before they were transferred into the estate account, the court was under no obligation to make a determination that prior to the transfer, the funds belonged to Simpson. Considering the proof and evidence introduced at the hearing, we can find no error in the decision of the chancery court. Therefore, we affirm.

¶ 7. THE JUDGMENT OF THE CHANCERY COURT OF PEARL RIVER COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE, P.J., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.


author: CHANDLER, J., for the Court. GRIFFIS, J.,

text:
    Sheryl STEVISON, Appellant v. PUBLIC EMPLOYEES’ RETIREMENT SYSTEM OF MISSISSIPPI, Appellee.
    No. 2006-SA-00841-COA.
    Court of Appeals of Mississippi.
    Oct. 16, 2007.
    George S. Luter, attorney for appellant.

      Mary Margaret Bowers, attorney for ap-pellee.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   CHANDLER, J., for the Court.

¶ 1. Sheryl Stevison appeals from the order of the Hinds County Circuit Court affirming the denial of disability benefits by the Public Employees’ Retirement System (PERS). We find that the decision of PERS was not supported by substantial evidence and was arbitrary and capricious. Therefore, we reverse the judgment of the circuit court and remand for the award of disability benefits to Stevison.

PACTS

¶ 2. Stevison worked as a teacher’s assistant with the Waynesboro Public School System for eleven and a half years. She resigned due to health problems on July 31, 2002, and, shortly thereafter, applied for non-duty-related disability benefits with PERS. The PERS Medical Board denied the claim. Stevison appealed to the Disability Appeals Committee, which heard testimony and reviewed medical records submitted by Stevison. The medical records indicated that, leading up to Stevi-son’s termination of employment, she was treated for piriformis syndrome, fibro-myalgia, depression, hypertension, Sjo-gren’s syndrome, osteoarthritis, and chronic cystitis. She continued with treatment for these conditions after her resignation.

¶ 3. Stevison testified that, for the past six years of her career, she was the assistant for first-grade teacher Mary Ann Walker. Walker primarily taught at-risk, low-achieving children whose parents did not volunteer at the school, necessitating extra duties for the teacher’s assistant. Stevison stated that her job required her to work one-on-one with the children, which obliged her to squat or sit down to be on their level. She assisted children needing special attention. She ran copies, cleaned the classroom, helped execute parties, and decorated the classroom bulletin boards, sometimes using a ladder. Stevi-son acted as the substitute teacher when Walker was absent, once for a six-week period. Additionally, Stevison worked with other teacher’s assistants to plan the kindergarten graduation and to decorate the school and auditorium for Christmas. She did bus duty. She said she was very busy.

¶ 4. The medical records of Drs. M. Scott Tynes, Robert Daggett, David Weiss, Robert McCrary, the Hattiesburg Clinic, and miscellaneous office notes were admitted into evidence. Dr. Tynes was Stevi-son’s family physician. In 1997, Dr. Tynes began treating Stevison for hypertension. Dr. Tynes’s records from 1997 indicate that Stevison suffered from ongoing fatigue and stress at home. Dr. Tynes advised her to get counseling. In 1998, she saw Dr. Tynes for anxiety and insomnia. The records also indicated she experienced tachycardia which Dr. Tynes thought was anxiety-related. In 1999, Stevison had a complete hysterectomy for severe endome-triosis and then began hormone replacement therapy. After the hysterectomy, Stevison developed chronic cystitis, for which she received ongoing treatment from Dr. Tynes and her gynecologist. In 1999, Dr. Tynes diagnosed Stevison with depression and she started antidepressant medication. In July 2002, he began treating her for Sjogren’s syndrome, which causes dryness of the eyes, nose, and mouth.

¶5. Stevison testified that, on September 14, 2001, she developed pain in her left hip which she attributed to having lifted heavy textbooks the day before. The pain radiated from her left hip through her buttocks and down her leg. In the next few days she went to a chiropractor, but the pain worsened. From then on, she went to different doctors trying to get a diagnosis. She stated that she saw fifteen or sixteen doctors before receiving a diagnosis of piriformis syndrome. Among those doctors was Dr. Beverley Myers, a rheumatologist at the Hattiesburg Clinic. On February 4, 2002, Dr. Myers indicated that Stevison had a normal MRI of her back and a normal EMG of her nerve conduction. Later, Stevison saw another rheumatologist, Dr. Weiss. On February 28, 2002, Dr. Weiss noted pain in the low back and hip and diagnosed her with left trochanteric bursitis. He prescribed injections which did not help the pain. Physical therapy was likewise unsuccessful. Dr. Weiss considered that the problem was fibromyalgia. Stevison said Dr. Weiss told her to go to pain management, but she refused because he had not definitively diagnosed her problem.

¶ 6. In April 2002, Stevison returned to Dr. Tynes, who felt that her pain was consistent with fibromyalgia with an outside chance of lupus due to a slight positive ANA. He referred her to a rheumatologist, Dr. Daggett, and in the meantime advised her to take time off work, to rest, and to use her pain medication. In April 2002, she saw Dr. McCrary for allergies and complained of pain all over her body. His impression was fibromyalgia. On May 13, 2002, Dr. Tynes noted that she had some domestic problems and seemed depressed. He advised her to get counseling for stress and anxiety, which she agreed to pursue. On June 3, 2002, Dr. Tynes stated that she was improved, but by July, her fibromyal-gia pain “was acting up.” On September 23, 2002, Dr. Daggett examined Stevison and noted that she had a good range of motion of all joints with minimal tenderness over the left greater trochanteric area. He found scattered fibrositic tender points. He diagnosed her with early fibro-myalgia and with piriformis muscle spasm, which caused the radiating hip pain. He ordered a bone scan that indicated she had arthritis or degenerative changes in all major joints.

¶ 7. Stevison said that Dr. Daggett prescribed muscle relaxers, pain medication, and stretching exercises, which helped only minimally. She said she suffered from shooting pains down her lower back and down her left leg that Dr. Daggett said was caused by muscle compression pinching the sciatic nerve. Stevison related Dr. Daggett’s opinion that she had caused permanent damage because she had not timely received a diagnosis of piri-formis syndrome and that she would have to live with the pain. Stevison stated that she is in pain all over her body from the fibromyalgia and is never out of pain unless her pain medications knock her out. She said she has pain in her hands and feet that limits her activities. She cannot sit, squat, or stand for extended periods of time.

¶ 8. Stevison testified that, while she loved her job and tried her best, she could no longer do what was expected of her, such as lifting, going up and down ladders decorating, and helping the children. She said that she had hip pain whenever she did movements at work such as turning. She became agitated from pain during bus duty. Stevison testified that the assistant principal did not believe she was really having medical problems and refused to make any accommodations for her condition. Stevison testified that, at home, she has difficulty performing household tasks. She said she cannot .bend over to do laundry. She stated that her daughters help her with housework and that she rests as needed. Stevison submitted a list of the medications she takes, including high blood pressure medicine, an anti-depressant, Sa-lagen for Sjogren’s syndrome, Lortab for pain, Mobie for osteoarthritis, a muscle relaxer, antibiotics for cystitis, lubricating eye drops, and nose spray. She said that, throughout the summer of 2002, she tried to get well enough to go back to work, but was unsuccessful. She stated that she was sure the school would have extended her a contract for the next year had she not terminated. She was approved for Social Security disability benefits.

¶ 9. Walker testified that Stevison had loved her job and excelled, but became unable to do the job due to her health. Walker testified that she observed Stevi-son distracted by pain and unable to perform. She said that sometimes, during the school day, Stevison had to lay her head down and could not work. Walker said she tried to make accommodations for Stevison, but still there were times Stevi-son was unable to cope. In the employment questionnaire, Walker stated that Stevison missed one to two days per week. Regarding Stevison’s ability to concentrate, Walker said Stevison had pain that caused noticeable tiredness and that she was unable to complete some duties. She said that Stevison’s health problems significantly interfered with work tasks. Walker reported that the job required lots of walking and completing assignments on time, which Stevison was unable to do. She said she had observed Stevison’s depression and her anxiety over no longer being able to do the job.

¶ 10. Doug Everett, the business manager for the Wayne County School District, filled out the “Employer’s Certification of Job Requirements.” Everett stated that the job required Stevison to continuously write, complete reports, or perform similar duties; to frequently walk, sit, stand, lift less than ten pounds, and bend at the waist; and to occasionally squat, kneel, lift over ten pounds, and use hands for repetitive motion. Everett stated that, in his opinion, Stevi-son could not perform the job. He indicated that Stevison had missed approximately forty-five days of work during the 2001-2002 school year.

¶ 11. In his statement of examining physician, Dr. Tynes stated that Stevison’s primary diagnoses were Sjogren’s syndrome, fibromyalgia, and piriformis syndrome with a secondary diagnosis of depression. He stated that she had a poor prognosis for recovery and was restricted to one to two hours of minimal physical activity per day. In a letter to PERS on January 30, 2003, Dr. Tynes stated that Stevison could not perform the teacher’s assistant job due to her pain, fatigue, and significant depression. Dr. Tynes opined that her osteoarthritis was quite concerning as well due to the recent bone density scan.

¶ 12. PERS ordered a functional capacity evaluation (FCE) which was performed on March 13, 2003. The FCE noted her diagnoses of fibromyalgia, Sjogren’s syndrome, and depression. The results of the FCE showed that Stevison could perform in the light demand category of work, meaning she could exert up to twenty pounds of force occasionally, up to ten pounds of force frequently, and use a negligible amount of force constantly to move objects. This category embraced the job of teacher’s assistant. Stevison performed consistently during the evaluation with no indication of self-limiting behavior. However, throughout the FCE, Stevison reported severe aching pain. During the walking tolerance test, she reported a spasm in the left piriformis. She complained of severe shoulder pain during the lift test, but gave consistent effort. She had neck and shoulder pain with overhead activities. Stevison testified that she did her best on the FCE but was in so much pain that it took three days of bed rest to recover from her exertions.

¶ 13. The Disability Appeals Committee found that Stevison had not provided any objective medical proof of disability and recommended that the claim be denied. The PERS Board of Trustees approved and adopted the recommendation. Stevi-son appealed, and the circuit court affirmed the denial of benefits.

LAW AND ANALYSIS

I. WHETHER THE DECISION OF PERS DENYING STEVISON’S DISABILITY RETIREMENT WAS SUPPORTED BY SUBSTANTIAL EVIDENCE.

¶ 14. Stevison seeks disability benefits under Mississippi Code Annotated section 25-11-113(1)(a) (Rev.2006) which provides:

Upon the application of a member or his employer, any active member in state service who has at least four (4) years of membership service credit may be retired by the board of trustees ... provided that the medical board, after an evaluation of medical evidence that may or may not include an actual physical examination by the medical board, shall certify that the member is mentally or physically incapacitated for the further performance of duty, that such incapacity is likely to be permanent, and that the member should be retired; however, the board of trustees may accept a disability medical determination from the Social Security Administration in lieu of a certification from the medical board. For the purposes of disability determination, the medical board shall apply the following definition of disability: the inability to perform the usual duties of employment or the incapacity to perform such lesser duties, if any, as the employer, in its discretion, may assign without material reduction in compensation, or the incapacity to perform the duties of any employment covered by [PERS] that is actually offered and is within the same general territorial work area, without material reduction in compensation.

Stevison was not offered any other covered employment. Therefore, PERS had to determine whether Stevison was unable to perform the usual duties of employment due to mental or physical incapacity for the further performance of duty and whether such incapacity was likely to be permanent such that Stevison should be retired. Miss.Code Ann. § 25-11-113(1)(a). PERS determined that Stevison had not met her burden of proof of disability because she had provided no objective medical evidence in support of the claim.

¶ 15. This Court applies a limited standard of review to the decisions of administrative agencies. Pub. Employees’ Ret. Sys. v. Ross, 829 So.2d 1238, 1240(¶ 11) (Miss.2002). We do not sit to re-weigh the evidence before the agency. Pub. Employees’ Ret. Sys. v. Dishmon, 797 So.2d 888, 891(¶ 9) (Miss.2001). We will reverse only when the agency’s decision was unsupported by substantial evidence, was arbitrary and capricious, was beyond the power of the agency to make, or violated some constitutional or statutory right of the complaining party. Id. at (¶ 8). “A rebuttable presumption exists in favor of the action of an administrative agency, and the burden of proof is on the party challenging an agency’s action.” Pub. Employees’ Ret. Sys. v. Marquez, 774 So.2d 421, 425(¶ 11) (Miss.2000).

¶ 16. Stevison argues that the decision of PERS was unsupported by substantial evidence and was arbitrary and capricious. “Substantial evidence has been defined as that which provides an adequate basis of fact from which the fact in issue can be reasonably inferred.” Dishmon, 797 So.2d at 892(¶ 13). To be substantial, the evidence must be something more than a mere scintilla or suspicion. Marquez, 774 So.2d at 425(¶ 13). And, “[i]f an agency’s decision is not based on substantial evidence, it necessarily follows that the decision is arbitrary and capricious.” Id. at 430(¶ 35). “An administrative agency’s decision is arbitrary if not done according to reason or judgment, but dependent on the will alone. An action is capricious if done without reason, in a whimsical manner, implying either a lack of understanding of or disregard for the surrounding facts and settled controlling principles.” Mississippi State Dep’t of Health v. Natchez, 743 So.2d 973, 977(¶ 13) (Miss.1999) (citations omitted).

¶ 17. PERS found that, while Stevison had provided opinions of disability from Drs. Daggett and Tynes, there was no objective basis for their opinions. PERS noted that her MRI and EMG studies were normal. Addressing Stevison’s bone scan showing arthritis in every joint, PERS stated that

[gjeneral medical knowledge about arthritis is that it appears in one or more joints, usually bilaterally, but it would be quite unusual for all joints to light up with arthritis. Thus, a conclusion could be drawn, that the bone scan was inaccurate and therefore, unimpressive, especially in light of the fact that the MRI was normal.

PERS stated that there were no reports about Stevison’s hip pain. It noted that “at least one provider documented that all of the complaints Ms. Stevison described had ‘hysterical overtones.’ ” PERS opined that Stevison’s problems had a psychiatric component that was being overlooked, and that fibromyalgia has a psychiatric component that some believe causes the physical component. PERS thought Stevison was under-treated psychiatrieally. PERS also stated:

Ms. Stevison, by her own testimony, saw many physicians and most of them could not find an objective reason to support her complaints of pain. We assume, for that reason, we were not provided the records from those physicians. May we assume that the other 10 plus doctors opined that no disability existed? It seems reasonable that we may.

PERS observed that Dr. Weiss had not made any disability determination but that, as Stevison’s rheumatologist, he would have been expected to do so if any disability existed. Also, PERS noted the FCE results showing Stevison could perform in the light duty category. PERS found that “it appears that Ms. Stevison could perform her job, based upon the testing and the school administrators agreed she could do her job if there was going to be a continued offer of employment.” PERS stated that there was “no objective proof of any physical or psychiatric disability.” For that reason, it stated, it “assume[s] that Ms. Stevison’s physicians were acting as advocates for their patient and there is certainly nothing wrong with that, but the proof for disability in this case is measured objectively and the record is void of same.”

¶ 18. PERS rejected the evidence of the bone scan based upon its own general medical knowledge. In Flowers v. Public Employees’ Retirement System, 952 So.2d 972, 980(¶ 26) (Miss.Ct.App.2006), we recognized that “part of the benefit of having physicians on the Disability Appeals Committee is so that they can analyze the medical claims.” We held that “when a thorough set of findings and conclusions explain the expertise that those physicians applied, we find no fault in relying on such expertise.” Id. Here, PERS explained that the bone scan’s finding of arthritis in every joint contravened general medical knowledge to the effect that it would be quite unusual for arthritis to appear in every joint. We find this explanation sufficiently thorough to support PERS’s conclusion that the bone scan was inaccurate and thus did not support Stevison’s diagnosis of osteoarthritis in every joint.

¶ 19. Since osteoarthritis was only one of Stevison’s ailments, we look to the remaining evidence before the agency. This Court reviews the entire record to determine whether the agency’s findings were supported by substantial evidence. Pub. Employees’ Ret. Sys. v. Ross, 829 So.2d 1238, 1240(¶ 11) (Miss.2002). We begin by noting that we have combed the record before PERS and have found no statement by anyone that Stevison’s complaints had “hysterical overtones.” In fact, no medical professional expressed any doubts about the legitimacy of Stevison’s complaints of pain. Contrary to the finding of PERS, Stevison did submit the opinion of her treating rheumatologist, Dr. Daggett, that she suffered from piriformis syndrome and fibromyalgia. She was receiving treatment for these conditions from Drs. Dag-gett and her primary care doctor, Dr. Tynes. Dr. Tynes was also treating her for depression. Dr. Tynes opined that, due to her pain, fatigue, and significant depression, Stevison was disabled from performing the job of teacher’s assistant. No conflicting medical opinions appear in the record. The opinions of Drs. Tynes and Daggett tended to corroborate Stevi-son’s experience of severe pain while performing the FCE.

¶ 20. In its opinion, PERS expressed no doubt about the credibility of Stevison’s testimony about her symptoms. Rather, the basis for PERS’s determination of no disability appears to have been that Drs. Tynes’s and Daggett’s diagnoses were based upon Stevison’s subjective complaints, not upon objective medical testing. Because there was no credible, objective test that supported Stevison’s subjective complaints, PERS concluded that Drs. Tynes’s and Daggett’s diagnoses of disabling conditions constituted patient advocacy, not legitimate medical diagnoses. PERS also decided, because Stevison had failed to submit the medical records of all the doctors she saw, that those doctors had opined she was not disabled. However, PERS never requested those records.

¶ 21. PERS argues that the lack of evidence at the agency level became the substantial evidence upon which its decision was based. See Pub. Employees’ Ret. Sys. v. Cobb, 839 So.2d 605, 610(¶ 16) (Miss.Ct.App.2003). Indeed, in Cobb, we stated that we will affirm PERS’s denial of disability benefits upon “a determination that the agency’s conclusion that the evidence was so lacking or so unpersuasive that [the claimant] failed to meet her burden appears a reasoned and unbiased evaluation of the evidence in the record.” Id. at 609(¶ 16). We held that the record, which lacked any medical diagnosis attributing Cobb’s recurrent dizziness and other problems to an actual medical condition, “amply supported] the Board’s findings that Cobb failed to meet her burden of showing her eligibility for disability retirement.” Id. at 610(¶ 16).

¶ 22. In contrast with the record in Cobb, this record, in addition to Stevison’s subjective complaints, contains uncontra-dicted medical diagnoses of fibromyalgia, piriformis syndrome, Sjogren’s syndrome, and depression and Dr. Tynes’s uncontra-dicted opinion that Stevison is disabled from working at her former job as a result of these four conditions. Despite this medical evidence, PERS denied the disability claim because it found Stevison had put forth no objective evidence of disability; The medical evidence in this case, along with PERS’s rationale for its decision, bears similarity to several cases involving claims of disabling fibromyalgia or chronic fatigue syndrome. In Marquez, PERS denied benefits though the claimant presented medical evidence of numerous medical problems, including fibromyalgia, that suggested she could not perform the usual duties of her job as a school teacher. Marquez, 774 So.2d at 427(¶ 23). PERS denied benefits in part because there was a lack of objective medical evidence and Marquez’s more recent medical problems were based on her subjective complaints. Id. at 426(¶ 16). Regarding PERS’s rationale for the denial, the supreme court stated: “[i]f medical diagnoses by licensed physicians are to be labeled ‘subjective’ evidence of medical ailments, it is unclear what PERS would consider to be ‘objective’ evidence.” Id. at 427(¶ 22).

¶ 23. In Public Employees’ Retirement System v. Dearman, 846 So.2d 1014, 1019(¶ 15) (Miss.2003), the supreme court affirmed the reversal of PERS’s denial of benefits to a claimant who suffered from fibromyalgia, chronic fatigue syndrome, and other ailments. Dearman’s primary treating physician had submitted a report stating that Dearman’s medical conditions rendered her permanently disabled. Id. at 1016(¶ 3). The employer certified that Dearman was unable to perform the duties of her job and that no accommodations could be made to enable her to work. Id. The supreme court noted that the record was devoid of any evidence that Dearman was not disabled and that PERS did not order an independent medical examination of Dearman. Id. at 1018(¶ 11). The court held that, due to the uncontradicted evidence before the agency, its denial of benefits was arbitrary and capricious. Id. at 1019(¶ 14). The court stated “PERS cannot choose to ignore the only evidence in the record from the examining physician, especially where it chose not to exercise its right to an independent medical evaluation. ...” Id. at 1018(¶ 11).

¶ 24. This Court found that PERS’s denial of benefits to a fibromyalgia sufferer was arbitrary and capricious in Public Employees’ Retirement System v. Waid, 823 So.2d 595, 597(¶ 7) (Miss.Ct.App.2002). Waid’s doctors diagnosed her with fibro-myalgia, anxiety-depression, and HH & GERD and indicated that Waid was permanently disabled by these ailments due to chronic pain. Id. at 598(¶ 10). Everyone who testified at the hearing stated that Waid was unable to work due to her pain and that she had missed substantial time at work. Id. at (¶ 11). There was no medical evidence contradicting the opinions of Waid’s doctors. Id. The PERS order made no specific findings of fact, but indicated PERS denied the claim because “the medical documentation submitted in support of Waid’s claim shows that Waid’s complaints are subjective and that physicians are unable to find an objective basis for her complaints.” Id. at 597(¶¶ 15, 7). This Court reversed because the record substantially reflected that Waid was unable to perform the usual duties of her employment. Id. at 598(¶ 9).

¶25. The record in this case mirrors that in Waid. Stevison submitted uncontradicted medical opinions that she suffered from fibromyalgia, pirifor-mis syndrome, Sjogren’s syndrome, and depression, and that she could not perform the usual duties of her employment due to these conditions. Stevison’s employer stated that she was unable to perform the duties of her employment. This was corroborated by Stevison’s direct supervisor, Walker. The FCE showed that Stevi-son could perform in the light duty category but not without severe pain. In contrast, no record evidence tended to show that Stevison could perform the usual duties of her employment. As in Waid, the evidence of disability was substantial and uncontradicted by other record evidence. PERS determined that Stevison had failed to prove her claim with objective medical evidence and, therefore, her physician’s opinions were nothing more than patient advocacy. Yet, the supreme court has held that medical diagnoses by licensed physicians are objective, not subjective, evidence of disability. Marquez, 774 So .2d at 427(¶ 22). In support of the denial of benefits, PERS expressed its belief that Stevison’s fibromyalgia had an unexplored psychiatric component. However, PERS never exercised its option to order an independent medical evaluation of Stevison to confirm or refute its belief. Miss.Code Ann. § 25-11-113(1)(e) (Rev.2006). We observe that section 25-11-113(1)(a) provides for the payment of disability benefits to an employee who is mentally or physically incapacitated for the further performance of duty. Therefore, Stevison would have been entitled to benefits even if her disabling fibromyalgia had a psychiatric component.

¶ 26. PERS also based its decision on its assumption that, because Stevison had not submitted medical records from all her physicians, those physicians had opined she was not disabled. PERS possesses the authority to order additional medical records. Miss.Code Ann. § 25-11-113(1)(e). If PERS requests medical records and the claimant refuses the request, then “the application shall be considered void.” Id. To prevail in her claim, Stevison was not statutorily required to produce all of her medical records, but only to produce sufficient evidence to support the claim of inability to perform the usual duties of her employment. Stevison supplied medical records from four physicians and the Hattiesburg Clinic in an effort to meet this burden. PERS never requested additional medical records.

¶ 27. We observe that Stevison was not represented by counsel at the hearing before the Disability Appeals Committee. It is easily conceivable that Stevison did not submit all her medical records in an effort to conserve financial resources. Under section 25-ll-113(1)(3), it is only when the claimant refuses a request by PERS for additional medical records that adverse action will be taken. PERS never requested the missing records in this case. Our courts have recognized on numerous occasions that PERS is required to base its decision upon evidence in the record before the agency. Miss.Code Ann. § 25-11-120(1) (Rev.2006) (stating “the board shall receive the record and make its determination based solely on matters contained therein”); Byrd v. Pub. Employees’ Ret. Sys., 774 So.2d 434, 439(¶ 21) (Miss.2000); Pub. Employees’ Ret. Sys. v. Thomas, 809 So.2d 690, 694(¶ 14) (Miss.Ct.App.2001). PERS had the ability to populate the record with the information needed to render its decision, yet it chose to forego this option. PERS instead decided to assume the missing information contained opinions of no disability. Thus, it manufactured evidence adverse to Stevison. This was impermissible in light of PERS’s ability to obtain the records and the requirement that PERS base its decision on record evidence. We hold that, when PERS foregoes its option to order additional medical records, it cannot assume the missing records contained opinions of no disability.

¶ 28. We find that, due to the substantial, uncontradicted evidence of disability before the agency, PERS’s determination that Stevison failed to meet her burden was not a reasoned and unbiased evalúation of the record evidence. The denial of disability benefits lacked the support of substantial evidence and was arbitrary and capricious. Therefore, we reverse and remand this case for the award of disability benefits to Stevison.

¶ 29. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING, C.J., LEE AND MYERS, P.JJ., IRVING AND ISHEE, JJ., CONCUR. BARNES, J., CONCURS IN RESULT ONLY. GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN OPINION. ROBERTS AND CARLTON, JJ., NOT PARTICIPATING.

GRIFFIS, J.,

dissenting:

¶ 30. I respectfully disagree with the majority. In my opinion, the majority errs by reweighing the evidence and substituting its judgment for that of PERS. I am of the opinion that the PERS finding was based on substantial evidence.

¶ 31. In Pub. Employees’ Ret. Sys. v. Cobb, 839 So.2d 605, 609(¶ 12) (Miss.Ct.App.2003), a unanimous Court of Appeals held:

In administrative matters, the agency, and not the reviewing court, sits as finder of fact. Metal Trims Indus., Inc. v. Stovall, 562 So.2d 1293, 1296 (Miss.1990). That fact-finding duty includes assessing the credibility of witnesses and determining the proper weight to give to a particular witness’s testimony. Walker Mfg. Co. v. Butler, 740 So.2d 315(¶ 46) (Miss.Ct.App.1998). A reviewing court is obligated to afford such determinations of credibility in the fact-finding process substantial deference when reviewing an administrative determination on appeal and the court exceeds its authority when it proceeds to re-evaluate the evidence and makes its own determination of the trustworthiness of some particular testimony. Smith v. Jackson Const. Co., 607 So.2d 1119, 1123-24 (Miss.1992).

¶ 32. The evidence indicates that PERS properly considered the testimony and medical documentation. PERS specifically noted the following facts:

Disability is defined as the medical incapacity for further performance of duty that is likely to be permanent and the employee should be retired. See Mississippi Code Ann. Section 25-11-113 (1972, as amended); see, also, Regulation 45A, PERS Board of Trustees, Administration of PERS Disability Benefits. Ms. Stevison has the burden of persuading this Committee by objective medical evidence that she is disabled as defined in this matter.
Has Ms. Stevison provided objective medical proof that she is disabled? She has provided us with opinions of disability from Dr. Daggett and Dr. Tynes. But what are the objective bases for these opinions, as medical doctors are typically not aware of the specifics required by statute, to make a determination of disability. We know that Ms. Stevison developed problems in September of 2001, after lifting textbooks. Her left hip developed a pain that she described as like lightening. She saw Ibid doctors without relief. She had tests performed, including MRIs and EMG studies that were completely normal. Subsequently, she had a bone scan that showed every single joint had arthritis. This is very odd. Surprisingly, the MRI picked up none of the arthritis. General medical knowledge about arthritis is that it appears in one or more joints, usually bilaterally, but it would be quite unusual for all joints to light up with arthritis. Thus, a conclusion could be drawn, that the bone scan was inaccurate and therefore, unimpressive, especially in light of the fact that the MRI was normal.
In addition, we have no reports about the hip pain, which according to Ms. Stevison, is how all of this began anyway. The electric-like pain that Ms. Stevison complains of is probably related to muscles and tendons and not hard structures like bones, joints, and discs. We note that at least one provider documented that all of the complaints Ms. Stevison described had “hysterical overtones”. This Committee noted, as did the Rheumatolgist [sic], that Ms. Stevi-son’s sedimentation (SED) rate was slightly elevated, but okay. It certainly was not high.
Obviously, the opinions regarding inability to work are not supported by the records presented to us today. This point is evident not just through the medical records but also through what is not included in the record. Ms. Stevi-son, by her own testimony, saw many physicians and most of them could not find an objective reason to support her complaints of pain. We assume, for that reason, we were not provided the records from those physicians. May we assume that the other 10 plus doctors opined that no disability existed? It seems reasonable that we may. Only Dr. Daggett and Dr. Tynes find disability. The records from the Rheumatologist, which seem to be the area of diagnosis, make no determination regarding disability. If Ms. Stevison is disabled as a result of Fibromyalgia and the associated syndromes, wouldn’t it seem logical that the Rheumatologist would render an opinion about this? We believe that Dr. Weiss, the Rheumatologist, would have been in the best position to render an opinion of disability. He did not. Furthermore, it seems to this Committee that a major component is being overlooked, and that is the psychiatric component. This woman should have been evaluated for psychiatric care. Again, general knowledge is that fibro-myalgia has a psychiatric component and some believe that the psychiatric component results in the physical component. Definitely, Ms. Stevison has been under treated in this area. As referred to earlier, other doctors noted “hysterical overtones.”
Lastly, we must consider how the Functional Capacity Evaluation plays into this claim. The conclusions drawn from that evaluation are that Ms. Stevison is physically able to perform her job. Also to consider along those lines is that Ms. Stevison testified that she probably would have been offered a contract for the following school year. In addition, of course, we have Ms. Walker who testified that Ms. Stevison looked ill to her. Objectively, it appears that Ms. Stevison could perform her job, based upon the testing and the school administrators agreed she could do her job if there was going to be a continued offering of employment. Ms. Walker had no way to objectively measure whether Ms. Stevi-son was ill. She merely was able to tell this Committee that Ms. Stevison looked ill.
These cases are always difficult, but the statute is clear that objective evidence is what is required to prove disability in this forum. We have considered the opinions of the two physicians stating that Ms. Stevison is disabled, and maybe she is for Social Security purposes, but she does not have objective medical proof of same. This Committee has made a diligent search of this record looking for evidence to support Ms. Stevison’s claim of disability and it is just not here. We have to assume that Ms. Stevison’s physicians were acting as advocates for their patient and there is certainly nothing wrong with that, but the proof for disability is [sic] this case is measured objectively and the record is void of same.
We believe that Ms. Stevison loved her job and maybe when her father passed on she began needing some counseling. We certainly do not believe that some type of psychiatric evaluation would be detrimental in this matter, but a decision like that is solely up to Ms. Stevison. Nevertheless, we have no objective proof of any physical or psychiatric disability and since that is the case; we recommend that Ms. Stevison’s request for disability benefits be denied.

¶ 33. I am of the opinion that PERS, through its medical doctors, was in a far better position to evaluate Stevison’s medical history and the evidence presented. PERS’s decision was based on its review of the evidence, and its physicians' medical knowledge and expertise. This Court is required to give deference to the PERS decision. We cannot substitute our judgment, and we must not reweigh the facts. Howard, 905 So.2d at 1284(¶ 15). I respectfully dissent from the majority’s decision to reverse the circuit court. I would affirm the circuit court.

      . In Pub. Employees’ Ret. Sys. v. Howard, 905 So.2d 1279, 1287-88(¶ 23) (Miss.2005), the Mississippi Supreme Court held:
      The Medical Board which denied Howard's claim was made up of three physicians. The Appeals Committee which agreed with that determination included two physicians. Sorting through voluminous and contradictory medical records, then determinating whether an individual is permanently disabled is better left to physicians, not judges. This is the idea behind the creation and expansion of administrative agencies. "The existence within government of discrete areas of quasi-legislative, quasi-executive, quasi-judicial regulatory activity in need of expertise is the raison d’etre of the administrative agency.” McGowan v. Miss. State Oil & Gas Bd., 604 So.2d 312, 323 (Miss.1992). "Because of their expertise and the faith we vest in it, we limit our scope of judicial review.” Id.


author: GRIFFIS, J., for the Court.

text:
    James VARDAMAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00734-COA.
    Court of Appeals of Mississippi.
    Oct. 16, 2007.

      Donna Sue Smith, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ISHEE, JJ.
   GRIFFIS, J., for the Court.

¶ 1. James Vardaman was convicted for possession of 250 dosage units of pseu-doephedrine, in violation of Mississippi Code Annotated Section 41-29-313(2)(c) (Rev.2005), and conspiracy to manufacture methamphetamine, in violation of Mississippi Code Annotated Section 41-29-139 (Rev.2005). He was sentenced as an habitual offender to two consecutive terms of life imprisonment without the possibility of parole. Vardaman now appeals and argues that: (1) there was insufficient evidence to support the jury verdict, (2) the trial court erred in its instruction to the jury on note taking, (3) it was error to sentence him as an habitual offender, and (4) he was denied effective assistance of counsel. We find no error and affirm.

FACTS

¶ 2. On July 6, 2004, James Vardaman, Jerry Mullins and Julie Mason traveled to Brandon to renew Vardaman’s vehicle tag. They then drove across the street to a Shell station. Vardaman walked from the Shell station to Dollar General where he purchased pseudoephedrine pills that contain a key ingredient necessary to manufacture methamphetamine. The store manager of the Dollar General became suspicious because Vardaman was buying more than two boxes of pseudoephedrine and called 911 to report the purchase.

¶ 3. Mullins and Mason drove over from the Shell station to pick up Vardaman at the Dollar General. Vardaman got back into the car with the pills he bought concealed in his pants. Vardaman then asked Mullins to go into the Dollar General and get “some.” Vardaman did not specifically say pseudoephedrine pills but Mullins knew what he was referring to because, one week prior to this incident, Mullins had shown Vardaman how to “cook” crystal methamphetamine. Mullins went inside and purchased two boxes of pseu-doephedrine pills. The three defendants drove over to Family Dollar where Varda-man bought more pills.

¶ 4. After returning to the car, Varda-man noticed an unmarked car used by the police. Upon seeing the police, they decided to pull over at a BP station to get rid of the pills. Vardaman began popping the pills out of the blister packs. He got out of the car and threw all of the empty pill boxes and blister packs into a garbage can at the BP.

¶5. Pursuant to the 911 call from the Dollar General manager, narcotics agent Martin Mann and his partner, Matt Thornton, had been following Vardaman, Mullins and Mason since they left Family Dollar. Upon seeing Vardaman put a yellow bag into the BP garbage can, Mann called for a backup unit to make a traffic stop and Vardaman, Mullins and Mason were taken into'custody.

¶ 6. Mason, who had been driving, gave Mann permission to search the vehicle. He found a yellow plastic bag inside the dash that contained numerous pseu-doephedrine pills. He also recovered seven empty pseudoephedrine pill boxes and seven empty blister packs from the yellow bag in the BP garbage can.

¶7. Back at the police station, Mann counted the pills found in the dash of the car and determined that there were a total of 288 pills. Mann told his partner the total number of pills but never wrote the number down in a report.

¶ 8. While Mann and Thornton were conducting another interview, Vardaman somehow accessed the bag of pills and concealed them in his pants. Vardaman then repeatedly asked to use the bathroom. Another officer escorted him to the bathroom and left the door open in accordance with police policy. The officer saw Vardaman take a yellow bag out of his pants and began to dump several white pills into the toilet. A struggle ensued to keep Vardaman from flushing the toilet. A second officer also observed the white pills falling into the toilet and saw that the toilet was full of a pile of pills. Only one intact pill was recovered.

¶ 9. Vardaman was later interviewed by Officers Mann and Thornton. In a written statement, Vardaman admitted purchasing two boxes of pills at Dollar General and two boxes at Family Dollar. He also admitted that he did throw away the empty packs at the BP station.

¶ 10. In addition to his written statement, Vardaman told the officers that he and the other defendants planned to “make a cook” that night or the next day; in other words, they planned to extract the ephedrine from the pills in order to manufacture crystal methamphetamine. This statement was never recorded because the police officers erroneously believed the interview was being videotaped.

¶ 11. Both Mullins and Mason were convicted on charges related to the arrest. At trial, Mullins testified that he had “cooked meth” with Vardaman before and both Mullins and Mason said that they had used methamphetamine with Vardaman.

ANALYSIS

I. Was the evidence offered at trial sufficient to support the jury’s verdict?

¶ 12. Vardaman argues that the trial court erred when it denied his motion for a directed verdict because the evidence at trial was insufficient to uphold his convictions for possession of 250 dosage units of pseudoephedrine and conspiracy to manufacture methamphetamine. Specifically, he contends that there is no proof that he possessed 250 pseudoephedrine pills and no proof that he and either of the defendants conspired to manufacture methamphetamine.

¶ 13. When reviewing a motion for directed verdict, the Court looks to the sufficiency of the evidence. Gleeton v. State, 716 So.2d 1083, 1087(¶ 14) (Miss.1998). All of the evidence must be construed in a light most favorable to the verdict. Id. “We may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.” Id. (quoting Wetz v. State, 503 So.2d 803, 808 (Miss.1987)).

a. Possession of 250 dosage units of pseudoephedrine

¶ 14. Vardaman argues that the State did not show that he possessed the requisite 250 pills because only seven boxes and their respective blister packs were recovered from the garbage can at the BP station. Each box contained 24 pills; therefore, the seven boxes accounted for 168 pills. However, Sergeant Mann testified that he had no doubt that he counted 288 pills in the bag recovered from Varda-man’s vehicle. Detective Thornton also testified that the total number of pills was above 250. Furthermore, Mullins testified that he was placed in the same jail cell as Vardaman after the arrest. Vardaman told Mullins that his wife had picked up his car and found more pills that the police did not recover indicating that Vardaman was in possession of more pills than just those he had bought that day.

¶ 15. We find that there was sufficient testimonial evidence for the jury to conclude that Vardaman was in possession of 250 dosage units of pseudoephedrine. This issue has no merit.

b. Conspiracy to manufacture methamphetamine

¶ 16. Vardaman further argues that there was insufficient evidence of a conspiracy between himself and Mullins or Mason. He bases this argument primarily on the fact that he did not specifically tell Mullins to purchase pseudoephedrine pills but instead asked Mullins to go into the Dollar General and get “some.”

¶ 17. A conspiracy requires that the conspirator enter “into a common plan and knowingly intend to further its common purpose.” Nixon v. State, 533 So.2d 1078, 1092 (Miss.1987), overruled on other grounds by Wharton v. State, 734 So.2d 985, 991(¶ 23) (Miss.1998). A common plan may be “inferred from the circumstances, particularly by declarations, acts, and conduct of the alleged conspirators. Furthermore, the existence of a conspiracy, and a defendant’s membership in it, may be proved entirely by circumstantial evidence.” Id. A formal agreement is not required. Id.

¶ 18. Mullins testified that despite specific instructions from Vardaman, he knew exactly what to purchase. Because of their history of “cooking meth” and using meth together, Mullins knew exactly what to do. He went into the store, bought two boxes of pseudoephedrine pills and gave them to Vardaman. Additionally, while being interviewed by the police, Vardaman admitted that the purpose of their trip had been to purchase pseu-doephedrine. Detective Thornton testified to the following:

Q: Did the defendant indicate to you in his statement that he was actively involved with the other two parties that were in the vehicle in procuring this pseudoephedrine for the purpose of cooking crystal methamphetamine?
A: Yes.

¶ 19. Vardaman argues that his admissions about his plans to manufacture methamphetamine were not included in his written statement and that all he admitted to in writing was purchasing a legal amount of pseudoephedrine. However, both officers who interviewed Vardaman testified to his statements about his plan to “cook meth.” It is the role of the jury, and not this Court, to weigh such evidence. Meshell v. State, 506 So.2d 989, 992 (Miss.1987).

¶ 20. We find that there was sufficient evidence for a reasonable jury to find that Vardaman was involved in a conspiracy to manufacture methamphetamine. Accordingly, this issue has no merit.

II. Does the trial court’s delay in instructing the jury on note taking present a valid issue on appeal?

¶ 21. Vardaman contends that the trial judge’s instruction to the jury regarding note taking was untimely and prejudiced the jury’s ability to make an informed decision about whether or not they should take notes.

¶ 22. Rule 3.14 of the Uniform Rules of Circuit and County Court allows the trial judge to decide whether or not the jury will be given an opportunity to take notes during trial. The rule requires that the judge give both a preliminary instruction and an instruction at the close of all evidence setting forth the appropriate use of juror notes. URCCC 3.14(2).

¶ 23. Here, the court asked if any jurors were interested in taking notes during trial. Six jurors responded that they would like to do so. However, the court did not give the preliminary instruction regarding note taking until after the State had begun to examine its first witness. During a break early on in the examination, the court then gave the proper instruction.

¶ 24. The Mississippi Supreme Court ruled that “[i]n order to preserve a jury instruction issue on appeal, a party must make a specific objection to the proposed instruction in order to allow the lower court to consider the issue.” Crawford v. State, 787 So.2d 1236, 1244-45(¶ 35) (Miss.2001). This Court may not reverse upon an issue that has not been preserved for appeal. Haddox v. State, 636 So.2d 1229, 1240 (Miss.1994). Because defense counsel did not object to the timing of the instruction, this issue may not be presented on appeal.

¶25. Even so, the delay in giving the instruction constituted a harmless error on the part of the trial judge. To warrant reversal on an issue, a party must show both error and a resulting injury. Catholic Diocese of Natchez-Jackson v. Jaquith, 224 So.2d 216, 221 (Miss.1969). An error is only grounds for reversal if it affects the final result of the case. Id.

¶ 26. Here, those jurors who wished to take notes had already decided to do so before the State presented its first witness. After the judge gave the instruction, no juror changed his mind about whether or not to take notes. Thus, the short delay in receiving the note taking instruction does not warrant reversal. Indeed, Vardaman does not argue how he may have been prejudiced by this delay. This issue has no merit.

III. Was Vardaman properly sentenced as an habitual offender?

¶ 27. Vardaman contends that it was improper for the trial court to sentence him to life imprisonment as an habitual offender. Specifically, he argues that the State did not show that he served a prison term of one year or more for each of two prior felony convictions.

¶ 28. This Court reviews the terms of a sentence under an abuse of discretion standard. “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.” Hoops v. State, 681 So.2d 521, 537 (Miss.1996). Thus, if Vardaman qualifies as an habitual offender under the statute, this Court may not overturn the trial judge’s prescribed sentence.

¶ 29. The State amended its indictment to charge Vardaman as an habitual offender pursuant to Mississippi Code Annotated section 99-19-83 (Rev.2000). The statute states that

[e]very person convicted in this state of a felony who shall have been convicted twice previously of any felony ... upon charges separately brought and arising out of separate' incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution ... and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Miss.Code Ann. § 99-19-83.

¶ 30. At trial, a custodian of records for the Mississippi Department of Corrections testified regarding Vardanian’s prior felony convictions and prison timed served. She testified that, the records reflect Vardaman served at least a year in jail under a forgery conviction in Lincoln County. She further stated that a jury in Copiah County convicted Vardaman of simple assault on a police officer on August 2, 2000, and he was sentenced to two years imprisonment. He also entered a guilty plea to possession of methamphetamine on November 9, 2000, and received a three-year sentence. The M.D.O.C. records show that Vardaman served those two terms consecutively from December 6, 1999, until April 7, 2004.

¶ 31. Vardaman argues that because the simple assault charge and the possession charge were brought on the same indictment, the State did not prove that the crimes arose out of separate incidents at separate times. However, the trial court, noting that Vardaman had produced no evidence to controvert the records of MDOC, found that the crimes were separate and arose out of different circumstances. The assault on a police officer was the result of a jury verdict and the conviction for possession of methamphetamine resulted from a guilty plea.

¶ 32. Regardless of whether the crimes arose from different circumstances, there is evidence that Vardaman served at least one year for each of two prior felonies. The MDOC custodian of records testified that Vardaman served at least one year for the forgery conviction in Lincoln County and that he served at least one year under both his two-year sentence for simple assault on a police officer and his three-year sentence for possession of methamphetamine. The forgery conviction clearly arose out of different circumstances than either the assault or the possession charge.

¶ 33. Thus, the trial court did not err in finding that Vardaman qualified to be sentenced under the habitual offender statute. This issue has no merit.

TV. Was Vardaman denied effective assistance of counsel?

¶ 34. Lastly, Vardaman claims that he was denied effective assistance of counsel because his attorney failed to (1) alert the judge that the petit jury was never sworn in, (2) submit a cautionary jury instruction on accomplice testimony, (3) submit a cautionary jury instruction advising the jury to not consider testimony about Varda-man’s prior convictions, and (4) object to the admission of the MDOC records.

¶ 35. To prove ineffective assistance of counsel, a defendant must show (1) that his counsel’s performance was deficient and (2) that this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with the defendant. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, “[t]he defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.

¶ 36. “To prevail on this claim, [the defendant] must show under Strickland that counsel’s conduct ‘so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ ” Havard v. State, 928 So.2d 771, 790 (Miss.2006) (quoting Strickland, 466 U.S. at 686, 104 S.Ct. 2052).

a. Swearing of the jury

¶ 37. Vardaman argues that the record does not reflect that the petit jury was properly sworn as required under Mississippi Code Annotated Section 13-5-71 (Rev.2002). He states that his attorney’s performance was ineffective because no objection was made to this fact at trial thereby waiving the issue on appeal. However, Vardaman has failed to prove that his attorney’s inaction constitutes deficient performance.

¶ 38. When reviewing the swearing of jurors, there is a rebuttable presumption “that the trial judge properly performed his duties.” Bell v. State, 360 So.2d 1206, 1215 (Miss.1978). Furthermore, even if the record does not reflect that the oath was given to the jury, “when the judgment states that the jury was properly sworn it is presumed that the trial judge performed his duties.” Dubose v. State, 919 So.2d 5, 10(¶ 18) (Miss.2005) (quoting Stewart v. State, 881 So.2d 919, 923(¶ 13) (Miss.Ct.App.2004)).

¶ 39. The judgment entered on November 2, 2005, states that the jury was “empaneled and sworn according to law.” Because Vardaman has offered no evidence to rebut the presumption that the trial court properly performed its duty, he has not shown that his counsel’s lack of objection on the issue constituted deficient performance.

b. Jury instruction regarding accomplice testimony

¶ 40. Vardaman claims that his attorney’s failure to request a jury instruction regarding accomplice liability was a denial of his right to effective assistance of counsel. Even assuming, which we do not, that this rose to the level of deficient representation, Vardaman cannot prove that the outcome of the trial would have been different had counsel requested the instruction.

¶41. In fact, “[i]t is within the discretion of the trial court to grant a cautionary instruction pertaining to the testimony of an accomplice witness.” Slaughter v. State, 815 So.2d 1122, 1134(¶ 64) (Miss.2002). The trial judge abuses that discretion when the “State’s evidence rests solely upon the testimony of an accomplice.... ” Id. Here, the State’s evidence did not rest solely on the testimony of Mullins or Mason. Thus, the instruction was not mandatory and Varda-man has not shown that, if it had been given, it would have changed the jury’s verdict.

c. Jury instruction regarding testimony about Vardaman’s prior convictions

¶42. On this issue, Vardaman fails to prove that his attorney’s actions were deficient. To the contrary, his attorney filed a pre-trial motion to prevent any statements relating to Vardaman’s prior convictions to be presented at trial and immediately objected when Mullins testified that he had “done time” with Varda-man. Thereupon, the court gave a curative instruction and told the jury to not consider the testimony for any purpose in the case. We find that the failure to request another jury instruction on this issue does not rebut the presumption that counsel’s actions were reasonable.

d. MDOC records

¶ 43. Vardaman further claims that his counsel provided ineffective representation when he failed to object to the MDOC records introduced to prove his status as an habitual offender. Specifically, he contends that the records were not self-authenticating under Mississippi Rules of Evidence 902.

¶ 44. This claim is without merit because the record shows that the MDOC records were authenticated through the testimony of a witness with knowledge, an acceptable method of authentication under Rule 901. Testimony regarding the records was given by “a custodian of the records” for the MDOC. Her testimony was a sufficient manner of authentication.

¶ 45. After examining the totality of the circumstances, Vardaman’s claim that he was denied effective assistance of counsel is without merit.

¶ 46. We find no error and affirm.

¶ 47. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY OF CONVICTION ON COUNT I, POSSESSION OF 250 DOSAGE UNITS OF PSEUDOEPHEDRINE, AND SENTENCE OF LIFE IMPRISONMENT AND COUNT II, CONSPIRACY TO MANUFACTURE METHAMPHETAMINE, AND SENTENCE OF LIFE IMPRISONMENT, EACH SENTENCE SHALL NOT BE REDUCED OR SUSPENDED AND DEFENDANT SHALL NOT BE ELIGIBLE FOR PAROLE OR PROBATION, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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