author: BARNES, J.,

text:
    Janie STEWART, Appellant v. SINGING RIVER HOSPITAL SYSTEM and Sedgwick of MS, Inc., Appellees.
    No. 2004-WC-00707-COA.
    Court of Appeals of Mississippi.
    Aug. 9, 2005.
    Rehearing Denied Jan. 17, 2006.
    Certiorari Denied May 4, 2006.

      Douglas Bagwell, Thomas Lynn Carpenter, Gulfport, attorneys for appellant.
    Michael J. McElhaney, Gina Bardwell Tompkins, Pascagoula, attorneys for appel-lees.
    Before KING, C.J., CHANDLER and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. The Circuit Court of Jackson County affirmed the Mississippi Workers’ Compensation Commission’s findings that Janie Stewart was not permanently disabled as a result of her work-related injury. The Commission had reversed the decision of the administrative law judge who found Stewart disabled. We reverse the decision of the circuit court and the Commission and find that the decision. of the administrative law judge was correct. We therefore reverse and remand to the Commission to reinstate the decision of the administrative law judge and properly award Stewart benefits.

¶ 2. On appeal, Stewart raises the following issues, which we quote:

(1) The Commission’s decision in this case relies on an unsupportable opinion by Leon Tingle which is based on facts not in evidence, in that Tingle stated that Dr. Laseter reported that Stewart could' work at a sedentary level, when Dr. Laseter never made that finding;
(2) By determining that Stewart should have also gone back to work based upon non-treating physicians’- restrictions, one an IME opinion, and another given nearly two years before Stewart finally came off work, the Commission’s decision is clearly in conflict with established Mississippi law on whose medical advice a • claimant is entitled to rely upon . whether to seek employment, resulting in distinctive prejudice in this case;
(3) The Commission’s determination, ■ ■ made without any consideration of Stewart’s continuing pain arising from this accident, makes that decision clearly erroneous and incorrect as a matter of law;
(4) The Commission’s failure to determine whether this accident was a compensable injury under the Act, or even to address whether Stewart is entitled to continued medical treatment, is clearly erroneous.

FACTS

¶ 3. Janie Stewart obtained a licensed practical nurse (LPN) degree in 1968 and worked as a staff LPN nurse at Singing River Hospital from 1968 to 1979. In 1979 she became a registered nurse (RN) and continued to work at Singing River Hospital from 1979 to 1985. Stewart then worked briefly at the V.A. Medical Center in Biloxi from 1985 to 1987. After that, Stewart returned to work at Singing River Hospital System, working at the Ocean Springs Hospital from 1987 to 1994 as a RN staff nurse, and from 1994 to 1995 working as a RN charge nurse. Stewart then transferred within the Singing River Hospital System to Kare-in Home Health and worked as a RN staff nurse from 1995 to 1997.

¶ 4. On or about October 31, 1996, Stewart was injured while employed by Kare-in Home Health. Stewart attempted to sit in a chair which rolled out from under her and caused her to fall to the floor, landing on her buttocks and striking her head. Stewart reported the accident and initially only experienced slight discomfort. Her neck and low back pain gradually worsened.

¶ 5. After seeking treatment for her low back pain at Ocean Springs Hospital, Stewart then went to her family physician, Dr. Steven Fineburg, in January 1997. Dr. Fineburg advised Stewart to leave work at that time. Treatment with physical therapy was not successful, and Dr. Fineburg referred Stewart to Dr. John McCloskey, a neurosurgeon, for her low back pain and pain radiating down her right leg and into her foot.

¶ 6. After conducting a series of tests, including myelograms, Dr. McCloskey diagnosed Stewart with spinal stenosis or narrowing of the nerve cord spaces at L4-L5 and L5-S1. Dr. McCloskey found that the Stewart was a good candidate for surgery, specifically a decompressive forami-notomy. In March 1997, Dr. Robert White concurred with the need for decom-pressive surgery. On April 14, 1997, Dr. McCloskey performed hemilaminectomies, foraminotomies, and partial facetomies at the L4-L5 and L5-S1 levels.

¶ 7. After experiencing initial improvement after the surgery, in May 1997, Stewart began to experience a reoccurrence of pain in the same areas as before the surgery. Dr. McCloskey began a regime of physical therapy which did help Stewart with leg pain but did not resolve the problem with back pain. In August 1997, Dr. McCloskey stated that Stewart could return to work with certain restrictions. Stewart returned to work part-time at first and within a month, full time.

¶ 8. The result was that Stewart lost work from January 13, 1997, the date Dr. Fineburg advised her to stop work, until September 1997, when Dr. McCloskey allowed her to return to work with restrictions. Stewart worked as a re-certification nurse from September 1997 to November 1998, when the hospital discontinued its contract with Kare-in Home Health. Stewart was then reassigned to Ocean Springs Hospital in the education department teaching new nurse assistants.

¶ 9. During the time that Stewart was working for Kare-in Home, she was in a great deal of pain and was taking pain medication to control that pain. Her pain was evident to her co-workers and her supervisor, Nettie Coffey, who testified that she saw Stewart in pain on several occasions.

¶ 10. In August 1998, Stewart requested that Dr. McCloskey refer her to Dr. Jeffery Laseter. Dr. Laseter first saw Stewart in December 1998 and diagnosed her with post-laminectomy syndrome and cervical myofacial pain. Stewart continued to see Dr. Laseter, and in January 1999, Dr. Laseter placed Stewart on additional physical therapy which was not successful in reducing her pain.

¶ 11. In October 1999, Stewart was involved in an automobile accident which aggravated her pain, particularly in her neck. Stewart continued to work until July 6, 2000, when Dr. Laseter took Stewart off work because of her pain. Dr. Laseter’s specifically stated that Stewart was to be. “off work until further notice.” On August 25, 2000, at a follow-up visit to Dr. Laseter, he noted improvement due to her lack of work activity. On August 28, 2000, Dr. Laseter issued new restrictions, stating that Stewart was not to bend, crawl, stand or walk, twisVpush or pull and “patient is to remain off work for an undetermined period of time.”

¶ 12. On November 17, 2000, Dr. Laseter stated that Stewart. could not work at any activity full-time and stated that she had achieved maximum medical recovery for her condition. Dr. Laseter stated that he had attempted to find her a part-time position with the hospital, but that the Singing River Hospital System did not have any part-time positions. On May 17, 2001, Dr. Laseter stated that Stewart was permanently and totally disabled and “will not be able to work in any type of work capacity.”

¶ 13. Leon Tingle, a vocation rehabilita-tionist hired by the employer/carrier, interviewed Stewart in October 2001. In his statement, Tingle noted that Dr. Laseter felt that Stewart was totally and permanently disabled from any employment. Tingle stated that Dr. Laseter indicated “that there was a possibility she may be able to perform some sedentary level jobs.” Tingle sent sedentary job descriptions to Dr. Laseter for review, and Dr. Laseter rejected each of them for Stewart.

¶ 14. The administrative law judge found that Stewart had suffered a compen-sable injury, was entitled to continuing reasonable and necessary medical services relating to the injury, and was permanently and totally disabled as a result of the accident in October 1996. The administrative law judge based the decision on the testimony and the records presented, finding that Dr. Laseter’s medical opinion as the treating physician was “more compelling.”

¶ 15. The Mississippi Workers’ Compensation Commission reverséd the opinion of the administrative law judge. The Commission apparently gave no consideration to Dr. Laseter’s opinion and stated that “at no time after being taken off work by Dr. Laseter did claimant attempt to find employment.” The Commission’s decision seems to have been completely-based on Tingle’s opinion that there was “a possibility” that Stewart could work in sedentary employment, although this possibility was not included in Dr. Laseter’s deposition or medical notes.

¶ 16. The circuit court affirmed the Commission’s order with little comment.

STANDARD OF REVIEW

¶ 17. An appellate court must defer to an administrative agency’s findings of fact if there is even a quantum of credible evidence which supports the agency’s decision. Hale v. Ruleville Health Care Center, 687 So.2d 1221, 1224 (Miss.1997). “This highly deferential standard of review essentially means that this Court and the circuit courts will not overturn a Commission decision unless said decision was arbitrary and capricious.” Id. at 1225; Georgia Pacific Corp. v. Taplin, 586 So.2d 823, 826 (Miss.1991).

¶ 18. The supreme court has held:

We do not sit as triers of fact; that is done by the Commission. When we review the facts on appeal, it is not with an eye toward determining how we would resolve the factual issues were we the triers of fact; rather, our function is to determine whether there is substantial credible evidence to support the factual determination by the Commission.

South Central Bell Telephone Co. v. Aden, 474 So.2d 584, 589 (Miss.1985). 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 evidence. Myles v. Rockwell Int'l., 445 So.2d 528, 536 (Miss.1984) (citing Masonite Corp. v. Fields, 229 Miss. 524, 91 So.2d 282 (Miss. 1956)); Riverside of Marks v. Russell, 324 So.2d 759, 762 (Miss.1975). An appellate court may not reweigh the evidence and substitute its decision for that of the Commission. Indeed, this Court has a duty to defer to the Commission when its decision can be supported. Fought v. Stuart C. Irby, Co., 523 So.2d 314, 317 (Miss.1988).

¶ 19. This is one of those rare cases where we cannot find sufficient support for the Commission’s findings and are compelled to remand with directions to adopt the findings of the administrative law judge.

ISSUES AND ANALYSIS

1. WHETHER THE COMMISSION’S DECISION WAS BASED ON UNSUPPORTED OPINION

¶ 20. The appellant first argues that the Commission improperly relied on the opinion of Leon Tingle which incorrectly stated that Dr. Laseter found that Stewart could work at a sedentary level.

¶ 21. The opinion of Mr. Tingle (with emphasis added) was that

Dr. Laseter indicated that he felt that Ms. Stewart was totally and permanently disabled and would not be able to return to work in any type of capacity. Later in his deposition, Dr. Laseter was open to the possibility that Ms. Stewart may be able to perform some positions that are sedentary in nature.

Tingle went on to say that

Ms. Stewart is severely limited in her return to work options at this particular time. Additionally, as mentioned earlier in this report, Dr. Laseter indicated in his deposition that he felt Ms. Stewart was totally and permanently disabled from any employment. However, he did indicate that there was a possibility she may be able to perform some sedentary level jobs. If this is the case, Ms. Stewart’s future employment options will involve a very narrow range of skilled sedentary jobs.

Tingle’s assessment of Stewart was based on a single meeting with her on October 8, 2001, and also on the deposition of Dr. Laseter. On November 9, 2001, Tingle submitted to Dr. Laseter a number of job descriptions for sedentary work for Stewart. Dr. Laseter disapproved of all the job descriptions as unsuitable for Stewart.

¶ 22. In his deposition, Dr. Laseter stated the following:

Q. Are you of the opinion that Ms. Stewart is entitled to a permanent impairment rating? And if so, what would it be that can be stated with a reasonable degree of medical probability?

And I am talking about an anatomical rating.

Q. Are you of the opinion that she would be entitled to a—
A. Yes.
Q. —permanent rating?
A. Yes.
Q. Okay. And that would be a result of her historical work injury?
A. Yes, sir.
Q. And in that letter [dated May 7, 2000], you state in the second to the last paragraph that you feel that Janie is totally and permanently disabled and will not be able to return to work in any type of work capacity. Is that correct?
A. Yes.
Q. And as we sit here today, do you continue to be of that opinion, and is that opinion stated within a reasonable degree of medical certainty?
A. Yes, sir.
Q. And are you of the opinion that her condition and injuries are permanent in nature?
A. Yes.
A. Well, any — any activity made her pain worse and continued to flare up her condition. So with activity on a regular basis, she just continued to have problems with pain. And it is my opinion that she could not continue that activity on a regular basis.
When questioned, Dr. Laseter stated that prior to Stewart being taken off work he had suggested part-time duties, sedentary work and the hospital had refused and not been able to guarantee such work. He specifically stated, “She could not work eight hours a day.” When asked if she would progress to the point where she could do full-time work, Dr. Laseter said, “No.”
Q. Okay. Would it be fair that you’d like to see — if we could find something and do that — to try it out and see if she could do it based on, you know—
A. Like I say, we’ve already entertained this. We’d done this approximately a year ago. And the response from the hospital was there’s not a position for her, that she would have to have her full duties, she would have to be pulled to the floor if necessary and do medium work. And I didn’t think the patient was — was able to do that.
And I have — I offered that over a year ago. And since that time, the patient has continued to work against my recommendations, she’s in the position that we’re in now where she’s, you know, completely off work and— disabled at this point.

¶ 23. For the Commission to rely on the overly optimistic interpretation by Tingle of Dr. Laseter’s deposition was clearly erroneous, particularly in light of Tingle’s inability to find a single job description that met with Dr. Laseter’s approval. Tingle’s opinion was based on a single interview with Stewart, compared to that of a treating physician who steadfastly stated that Stewart was permanently disabled. Dr. Laseter did not change his opinion that Stewart was totally disabled and should not remain at work.

¶ 24. The Commission’s statement that “Employer at all time maintained a position at the Singing River Hospital which met the claimant’s restrictions and limitations” is directly contradicted by the deposition testimony of Dr. Laseter and not supported by the opinion and job descriptions proposed by Tingle or any other evidence. Consistent with Dr. Laseter’s deposition testimony, Tingle noted twice in his opinion that Dr. Laseter found that Stewart was totally and permanently disabled and would not be able to return to work in any type of capacity. Any other conclusion that there was other employment available to Stewart was purely based on hypothetical speculation.

¶25. In Burnley Shirt Corporation v. Simmons, 204 So.2d 451, 453 (Miss.1967), the court specifically stated that recovery in a compensation case must be based on probabilities, rather than “predicated only upon a possibility.” The court quoted Franks v. Goyer, 234 Miss. 833, 839, 108 So.2d 217, 219 (1959):

Long before Mississippi had a Workmen’s Compensation Law, this Court has repeatedly held that recoveries must rest upon reasonable probabilities and not upon mere possibilities. See Illinois Central Railroad Company v. Cathy, 70 Miss. 332, 12 So. 253; Kramer Service, Inc. v. Wilkins, 184 Miss. 483, 186 So. 625; Tombigbee Electric Power Association v. Gandy, 216 Miss. 444, 62 So.2d 567, and the long list of like cases cited in 216 Miss, at page 456, 62 So.2d at page 571.

Burnley Shirt Corporation, 204 So.2d at 454. Because Tingle stated that employment for Stewart was “a possibility” or “the possibility,” then it was error for the Commission to use that statement as a basis for its decision.

¶ 26. The only time that the hospital announced that a position was available was at the hearing before the administrative law judge. We reject the notion that a job can be offered solely for the purpose of attempting to defeat a claim or extended out of sympathy. See McCray v. Key Constructors, Inc., 803 So.2d 1199, 1202(¶ 10) (Miss.Ct.App.2000). Further, when that position was subsequently forwarded to Dr. Laseter, he rejected it as inappropriate for Stewart.

¶ 27. We find that this assignment of error has merit.

2. WHETHER THE COMMISSION’S DECISION IS IN CONFLICT WITH MISSISSIPPI LAW

¶ 28. As part of its findings, the Commission stated that “the overwhelming weight of the medical evidence suggests that prior to the motor vehicle accident, claimant had been seen by two well respected physicians practicing on the Mississippi Gulf Coast area and neither Dr. McCloskey nor Dr. Terry Smith opined that the claimant was unable to work.”

¶ 29. Dr. McCloskey first saw Stewart on February 4, 1997. He later performed surgery and released Stewart to work part-time with restrictions on August 18, 1997. On September 29, 1997, Dr. McCloskey found maximum medical recovery and assigned a ten percent (10%) permanent impairment to the whole body. In August 1998, Stewart asked for a referral to Dr. Laseter.

¶ 30. On December 21, 1998, Stewart first saw Dr. Laseter, a pain management specialist, on referral from Dr. McCloskey. Stewart saw Dr. Laseter at least sixteen times between December 1998 and May 2001. On September 6, 2000, Dr. Laseter took Stewart off work. Stewart thereafter took medical retirement and applied for and received Social Security disability benefits.

¶ 31. On or about October 23, 2001, Dr. Terry Smith provided an independent medical examination. He was hired by the employer and carrier to prepare his medical report and noted that he thought that her reasons for stopping work were “more psychological than physical.” Dr. Terry Smith’s curriculum vitae does not indicate that he had particular training in psychological evaluation. When Stewart was seen by other doctors with specific training in psychology/psychiatry — Dr. Steve Smith, a psychologist, and Dr. William Smith, a psychiatrist, both physicians diagnosed Stewart as having a depressive disorder secondary to chronic pain. In other words, the two medical professionals trained to deal in psychological evaluation found that Stewart’s pain was the primary problem.

¶ 32. The opinion of the Commission recognized that there was no dispute as to the October 31, 1996 injury “nor is there any dispute that the motor vehicle accident of October 21, 1999 exacerbated the symptoms that the claimant suffered as a result of the work related injury....” With this the Commission then turned solely to the medical evidence from Dr. McCloskey, who last saw and treated Stewart more than two years before the auto accident. The Commission’s opinion incorrectly stated that Dr. Terry Smith saw Stewart “prior to the motor vehicle accident” rather than two years after the accident. The opinion also failed to note that Dr. Terry Smith was hired by the employer/carrier to perform this evaluation. In argument before the Court, it was noted that neither Dr. McCloskey nor Dr. Terry Smith was aware that Stewart had been involved in the October 1999 accident.

¶ 33. The brief of the appellee fails to address the issues raised by Stewart in this assignment of error. Rather, the ap-pellee argues that the Commission determined that the October 1999 auto accident was a subsequent intervening accident which terminated any further liability of the employer and carrier. As previously quoted, the Commission found, without any contradiction, the accident exacerbated Stewart’s condition. There was no finding that the employer was not liable for Stewart’s condition at the time of the hearing. In argument before the Court, the appellee conceded that the Commission did not make a specific finding that the 1999 accident was an intervening cause which absolved the employer of responsibility. It was also noted that the issue of intervening cause was not an issued raised by the appellees before the Commission.

¶ 34. In Marshall Durbin Co. v. Warren, 633 So.2d 1006, 1010 (Miss.1994), quoting Johnson v. Ferguson, 435 So.2d 1191, 1195 (Miss.1983), the court held that expert testimony based on an inadequate or incomplete examination does not carry as much weight and has little or no probative value compared to the opinion of an expert who made a thorough and adequate examination.

¶ 35. In his deposition testimony, taken November 9, 2001, Dr. McCloskey stated that he was not giving any opinion as to Stewart’s condition from any time after he last saw her on February 17, 1998. He specifically stated that Dr. Laseter would be in a better position to give an evaluation and opinion as to her condition. Dr. McCloskey also noted that Dr. Laseter’s opinion would probably be better than that of someone who had only seen Stewart once for an independent medical examination.

¶ 36. In Johnson v. Ferguson, 435 So.2d 1191, 1193-95 (Miss.1983), the Mississippi Supreme Court held that the decision of the Commission was against the overwhelming weight of the evidence when it disregarded the testimony of the claimant’s treating physician and instead relied on the employer’s expert. In addition to citing Ferguson, this Court in Clements v. Welling Truck Service, Inc., 739 So.2d 476, 478 n. 1, cited Larson’s Workers Compensation Law § 80.24(b) n. 83.1, for noting that Ferguson is “one of many cases standing for two ‘self evident propositions’ that treating physicians’ opinions carry more weight than those of physicians who examine a claimant solely for purposes of testifying and opinions of treating specialists carry more weight than those of general practitioners.” Accord, South Central Bell Telephone Co., v. Aden, 474 So.2d 584, 593 (Miss.1985).

¶ 37. Consistent with case law, we find that the Commission incorrectly relied on the opinion of Dr. McCloskey, who clearly stated that he could offer no opinion on Stewart’s present condition and who had not treated her for more than two years prior to his testimony, and on the opinion of Dr. Terry Smith who reviewed some of Stewart’s medical records for purposes of testifying for the employer/carrier. Again, we find that there is merit to the appellant’s issue.

3. WHETHER THE COMMISSION’S DECISION IS CLEARLY ERRONEOUS AND INCORRECT FOR FAILING TO CONSIDER STEWART’S PAIN

¶ 38. In this assignment of error, the appellant faults the Commission’s opinion for failing to note that Stewart still experiences pain and has been in pain for some period of time. In Spann v. Wal-Mart Stores, Inc., 700 So.2d 308, 312(¶ 15) (Miss.1997), the court stated that if the claimant is “still suffering from and being treated for pain, immobility and inability to perform all but the slightest duties, then it logically follows that he has some temporary or permanent disability.”

¶ 39. The Commission’s primary holding in its opinion was that Stewart was under a duty to seek employment despite the fact that her treating physician had stated that she was totally disabled and had taken her off work. In order for Stewart to seek employment she would have had to go directly against medical advise. The hospital’s statement at the hearing that there was a job available which met the medical restrictions is directly in conflict with the testimony of Dr. Laseter that he had contacted the hospital about alternative employment and that the hospital had not been cooperative or offered any such employment. Each of the attempts by Tingle to find other related employment was specifically rejected by Dr. Laseter, including the alleged job of patient educator that the hospital stated met the medical limitations.

¶ 40. While the Commission is correct that “neither Doctor McCloskey nor Dr. Terry Smith (the IME physician) opined that the claimant was unable to work,” neither of these doctors had current or complete information about Stewart’s condition. Dr. McCloskey had not seen or evaluated Stewart in more than two years at the time of his deposition and was not aware of the additional exacerbation of her injury brought on by the automobile accident or her otherwise declining health. Dr. Terry Smith did not review all of Stewart’s medical information, was equally unaware of Stewart’s additional automobile injury, and seemingly offered an opinion outside his area of expertise.

¶ 41. The Commission should have taken into consideration Stewart’s continuing pain. After Dr. McCloskey found that Stewart had reached maximum medical improvement in September 1997, Stewart returned to work at Singing River and worked for several years. Her supervisor, Nettie Coffey, noted that Stewart was in pain, although working. Both the psychologist and the psychiatrist who treated Stewart noted that pain was a significant factor in her psychological problems. Dr. Terry Smith’s opinion is not to the contrary. While he states that Stewart’s reason for stopping work was more “psychological than physical,” he offers no opinion as to the cause of her psychological problems. According to both treating physicians, pain was a significant cause. The significance of this is noted in Spann, 700 So.2d at 311 — 12(¶ 15):

If Spann had achieved maximum medical improvement, following an injury all parties agree occurred during the course and scope of employment, then Spann should be pain free as he was prior to the accident, with full mobility, and able to return to his prior duties. If he has reached maximum improvement and is still suffering from and being treated for pain, immobility and inability to perform any but the lightest duties, then it logically follows that he has some temporary or permanent partial disability.

¶ 42. Based on uncontradicted evidence that Stewart experienced pain and the Commission’s failure to recognize pain as an indicator of disability, we conclude that the decision by the Commission lacks validity and must be reversed.

4. WHETHER THE COMMISSION’S DECISION IS CLEARLY ERRONEOUS AND INCORRECT FOR FAILING TO CONSIDER STEWART’S PAIN

¶ 43. The compensability of the accident was never an issue in this case. The appellee has not challenged that the October 1996 injury was compensable. Whether Stewart is entitled to continued medical treatment has also not been seriously contested. The parties stipulated that the only issue to be resolved was “the existence and extent of any permanent disability and the loss of wage earning capacity attributable to the Claimant’s injury.”

¶ 44. The Commission’s opinion that “the findings of the Commission be substituted for those of the Administrative Judge and that the workers’ compensation claim of the claimant, Janie Stewart, be, and the same hereby is DENIED,” is inadequate and further evidences that the Commission’s holding is clearly erroneous and cannot be upheld.

CONCLUSION

¶ 45. The long-standing rule of the courts is that doubtful cases must be resolved in favor of compensation, so as to fulfill the beneficent purposes of the statute. Marshall Durbin, 683 So.2d at 1010; Clements, 739 So.2d at 481 (¶ 21). We conclude that the Commission erred in both its findings of fact and in its legal conclusions. Stewart had a right to rely on her treating physician’s conclusion that there were no jobs which met her limitations and that she was totally disabled as a result of her compensable injury. Dr. McCloskey deferred to Dr. Laseter’s findings based on the fact that Dr. McCloskey had not seen the claimant for more than two years. The one-time evaluations by Dr. Terry Smith and Leon Tingle, paid for by the employer, were either based on incomplete information or were so speculative as to be of questionable value to the Commission.

¶ 46. In particular, the Commission applied the wrong legal standard. When a claimant has been removed from work and declared totally disabled based on competent medical evaluation, there is no requirement that the claimant go against medical advise and seek employment. If the employer seeks to challenge the claim of total occupational disability, then the employer must come forward with testimony showing that the claim is invalid. While Tingle mentioned the “possibility” of other employment, each of his job descriptions was rejected by Stewart’s doctor, including the position which the hospital claimed to have open.

¶ 47. Our limited appellate review leads to the inescapable conclusion that the finding of the Commission is without support and therefore arbitrary and capricious. We reverse and remand this matter to the Commission for a determination of the appropriate award of compensation.

¶ 48. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY IS REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLEES.

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


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Ronald Scott WESTBROOK, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01209-COA.
    Court of Appeals of Mississippi.
    Oct. 4, 2005.
    Rehearing Denied Feb. 21, 2006.
    Certiorari Denied May 4, 2006.

      Mose Lee Sudduth, Jr., Columbus, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ISHEE, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Ronald Scott Westbrook was convicted of the sale of hydrocodone (count I) and the sale or delivery of less than one ounce of marijuana (count II). For count I, Westbrook was sentenced to serve twenty-two years in the custody of the Mississippi Department of Corrections and ordered to pay a fíne of $5,000 plus all court costs. For count II, Westbrook was sentenced to serve three years. The sentences were to run consecutively, for a total of twenty-five years to serve. On appeal, Westbrook asserts that: (1) he received ineffective assistance of counsel, (2) the district attorney committed prosecuto-rial misconduct during closing arguments, and (3) his sentence was improper and excessive. We find no error and affirm.

FACTS

¶ 2. On March 4, 2003, a confidential informant (“Cl”) met with Officer Steve Hatcher and two other officers with the Lowndes County Sheriffs Office Narcotics Unit to arrange for the Cl to make three drug buys. One of the buys included Westbrook. Officer Hatcher searched the Cl and his truck, provided him with purchase money, and fitted him with audio/visual equipment. The Cl had known West-brook for approximately one year. He drove to Westbrook’s trailer to “make the deal.”

¶ 3. While inside Westbrook’s trailer, the Cl asked Westbrook if he had any Lortabs for sale. Westbrook responded that he did and offered to sell three tablets for $6.00 each. The Cl gave Westbrook $20 for three tablets, and Westbrook handed him the pills. Westbrook then pulled out a sack of a “green leafy material” and gave the Cl several joints. The Cl then left Westbrook’s trailer.

¶ 4. At a post-buy meeting, the Cl gave Officer Hatcher the drugs he had purchased from Westbrook. Officer Hatcher took the audio/visual equipment and again searched the Cl and his truck before allowing him to leave. The audio/visual equipment was entered into evidence and played for the jury. The State’s expert witness identified the pills as hydrocodone and the “green leafy material” as marijuana.

¶ 5. A jury found Westbrook guilty of sale of hydrocodone and sale or delivery of marijuana. Westbrook filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial, which was denied by the trial court.

ANALYSIS

I. Did Westbrook receive ineffective assistance of counsel?

¶ 6. Ineffective assistance of counsel claims must meet the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail, Westbrook must demonstrate that his counsel’s performance was deficient and that this deficiency prejudiced his defense. Id. at 687, 104 S.Ct. 2052. The burden of proof rests with Westbrook. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990).

¶ 7. Westbrook lists several deficiencies in his trial counsel’s performance. He specifically points us to his counsel’s failure to: object during voir dire, demand that the video tape from the drug buy be shown in full, and object to the denial of his jury instructions. He claims these deficiencies prejudiced his defense. However, as circuit court judge James T. Kitchens, Jr. noted during the hearing on the motion for judgment notwithstanding the verdict or, in the alternative, a new trial,

Mr. Westbrook was convicted ... on the strength of a videotape and a confidential informant who testified that he had, in fact, purchased hydrocodone and had received or the marijuana had been delivered to him by Mr. Westbrook. There was video evidence. While the picture evidence on video may not have been the best in the world, the sound on the video was quite damming [sic], quite honestly. It was clear that it was Mr. Westbrook’s voice.

¶ 8. Upon review, we find that West-brook failed to show that his counsel’s alleged deficiencies prejudiced the outcome of his trial. Thus, we conclude that this issue lacks merit.

II. Did the district attorney commit prosecutorial misconduct during closing arguments?

¶ 9. During closing arguments, Westbrook’s counsel told the jurors that they were “the last defense of a defendant.” In his final summation, the district attorney countered with the following:

Ladies and gentlemen, likewise, you’re told that, well, in this particular case, it comes down to the jury being the last defense of the criminal defendant, the jury being the last thing that stands between him and the power of the State. Ladies and gentlemen, that’s not your job. Your job when you took the oath and got impaneled as a juror was to render a true verdict based on the evidence. It’s not your job to protect the defendant. It’s the Judge’s job to make sure that his rights are protected. If you want to say it’s your job to protect the defendant, ladies and gentlemen, it’s equally your job to protect the communities from people who are selling drugs. Your job, ladies and gentlemen, is to render a true verdict based on the evidence, the whole of the evidence. No matter what effect, no matter what consequences, that’s your job.

¶ 10. Westbrook characterizes the prosecutor’s comments as a “send the message” argument, which he contends constitutes prosecutorial misconduct. Williams v. State, 522 So.2d 201 (Miss.1988). Initially, we note that Westbrook failed to object to the district attorney’s comments during closing arguments. Further, West-brook failed to include this issue in his post-trial motion as a ground for a judgment notwithstanding the verdict or, in the alternative, a new trial. This Court has held that error not raised at trial or in post-trial motions may not be reviewed on appeal. Davis v. State, 660 So.2d 1228, 1245-46 (Miss.1995); Foster v. State, 639 So.2d 1263, 1288-89 (Miss.1994). Thus, we find that this issue is procedurally barred.

¶ 11. Procedural bar notwithstanding, “any allegedly improper prosecutorial comment must be evaluated in context, taking into consideration the circumstances of the case when deciding the comment’s propriety.” Brooks v. State, 763 So.2d 859, 864(¶ 12) (Miss.2000) (citing Davis, 660 So.2d at 1248). The district attorney did not tell the jurors that their sole function was to protect the community. Rather, the district attorney argued that if the defendant could argue that the jury had a duty to protect the defendant, then the State could argue that the jury also had a duty to protect the community. The district attorney further clarified his statement by telling the jury that their ultimate job was “to render a true verdict based on the evidence, the whole of the evidence.” The district attorney’s comments did not constitute prosecutorial misconduct. Therefore, we find no error.

III. Was Westbrook’s sentence improper and excessive?

¶ 12. Westbrook contends that his sentence was improper and excessive. It is well settled law that 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. Wall v. State, 718 So.2d 1107, 1114(¶29) (Miss.1998).

¶ 13. Mississippi Code Annotated Section 41-29-139 (Rev.2001) states that any person who knowingly and intentionally sells, barters, transfers, manufactures, distributes, dispenses or possesses with the intent to sell, barter, transfer, manufacture, distribute or dispense a controlled substance “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.” It further states that “[i]n the case of one (1) ounce or less of marihuana, such person may, upon conviction, be imprisoned for not more than three (3) years or fined not more than Three Thousand Dollars ($3,000.00), or both.” Miss.Code Ann. § 41-29-139 (Rev.2001).

¶ 14. Westbrook’s sentence of twenty-two years for the sale of hydroeo-done and three years for the sale or delivery of marijuana is within the statutory guidelines. A sentence consistent with the statutory parameters will not be disturbed. Corley v. State, 536 So.2d 1314, 1319 (Miss.1988). Westbrook’s sentence was neither improper nor excessive. We find this issue to lack merit.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY OF CONVICTION OF COUNT 1, SALE OF HYDROCODONE: SENTENCED TO SERVE A TERM OF TWENTY-TWO YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND ORDERED TO PAY A FINE OF $5000, AND COUNT 2, SALE OF MARIJUANA LESS THAN ONE OUNCE: SENTENCED TO SERVE A TERM OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, SAID SENTENCE TO RUN CONSECUTIVELY WITH THE SENTENCE IMPOSED IN COUNT 1, FOR A TOTAL OF 25 YEARS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

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


author: LEE, P.J.,

text:
    Dwight SMITH a/k/a Smokey, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-CP-01959-COA.
    Court of Appeals of Mississippi.
    Nov. 1, 2005.
    Rehearing Denied Feb. 14, 2006.
    Certiorari Denied May 4, 2006.
    Dwight Smith, Appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. On July 11, 2003, in the Marion County Circuit Court, Dwight Smith entered a plea of guilty to burglary of a building as an habitual offender. Smith was sentenced to serve seven years in the custody of the Mississippi Department of Corrections. On August 10, 2004, Smith filed a motion for post-conviction relief. The trial court denied Smith’s motion for relief on August 24, 2004. Smith now appeals to this Court, asserting the following: (1) his due process rights were violated; (2) his right to a speedy trial was violated; (3) the indictment was insufficient; and (4) he received ineffective assistance of counsel. Finding no merit to any of Smith’s issues, we affirm.

STANDARD OF REVIEW

¶ 2. The standard of review in post-conviction relief cases is well-stated: The findings of the trial court must be clearly erroneous in order to overturn a lower court’s denial of a post-conviction relief motion. McClinton v. State, 799 So.2d 123, 126(¶ 4) (Miss.Ct.App.2001).

DISCUSSION

I. WERE SMITH’S DUE PROCESS RIGHTS VIOLATED?

II. WAS SMITH’S RIGHT TO A SPEEDY TRIAL VIOLATED?

III. WAS THE INDICTMENT INSUFFICIENT?

¶ 3. As Smith’s first three issues relate to his guilty plea, we will address them together. During his plea hearing, Smith testified that it was his decision to plead guilty, that no one pressured him into pleading guilty, that he understood the consequences of pleading guilty rather than going to trial, and that he was satisfied with his attorney’s advice.

¶ 4. According to Anderson v. State, 577 So.2d 390, 391 (Miss.1991), “a valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial.” Other rights waived by entering a guilty plea are the right to a speedy trial (see Anderson, 577 So.2d at 391), any defenses to the charge (see Taylor v. State, 766 So.2d 830(¶ 24) (Miss.Ct.App.2004)), and the right that the prosecution must prove each element of the charge beyond a reasonable doubt (see Jefferson v. State, 556 So.2d 1016, 1019 (Miss. 1989)).

¶ 5. In his order, the trial court determined that Smith’s guilty plea was entered into knowingly and voluntarily and, as a result, his arguments were waived. We can find no error in the lower court’s finding; thus, we find these issues to be without merit.

IV. WAS SMITH’S COUNSEL INEFFECTIVE?

¶ 6. In his last issue on appeal, Smith argues that his trial counsel was ineffective. Smith claims that his attorney failed to object to a defective indictment; failed to request discovery; failed to assert his right to a speedy trial; failed to investigate his defense to the charge; and failed to object to his sentencing as an habitual offender. Smith must demonstrate that his trial counsel’s performance was deficient and the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 7. During the plea colloquy Smith stated that he was satisfied with his counsel’s representation and his counsel had not pressured him into pleading guilty. The trial court also found that Smith’s ineffective assistance of counsel claims were waived by his guilty plea. Furthermore, the trial court also noted that, “Thanks to the work of Smith’s counsel, he pled guilty to the crime of burglary of a building as a habitual offender under the ‘Little Habitual Offender Statute’, and thus received a seven year sentence instead of the aforementioned life sentence.” Smith was originally indicted as an habitual offender, which carried a mandatory sentence of life without the possibility of parole. Smith has failed to meet the requirements of Strickland; thus, we find no merit to this issue.

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

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


text:
    Charles L. CLARK, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-02611-COA.
    Court of Appeals of Mississippi.
    Feb. 21, 2006.
    Certiorari Denied May 4, 2006.

      Thomas M. Fortner, Jackson, Lynn Watkins, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
   GRIFFIS, J.,

for the Court.

¶ 1. The Appellant’s motion for rehearing is denied. However, the previous opinion of this Court is withdrawn and this opinion is substituted.

¶ 2. Charles Clark was convicted of aggravated assault with weapon in the Circuit Court of Hinds County. He was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections. On appeal, Clark contends that: (1) the trial court erred by admitting the second knife into evidence, (2) the trial court erred in granting the motion in limine barring any mention of the civil suit pending between David Wood-ruff, the victim, and Gateway Rescue Mission, (3) the trial court erred in excluding Clark’s testimony regarding his fears of Durham and Woodruff, and (4) the trial court erred in refusing jury instruction D-9. We find no error and affirm.

FACTS

¶ 3. Gateway Rescue Mission was home to David B. Woodruff, Tom Durham, and Charles Clark. The three men were employees as well as residents. However, during the trial, their relationship was consistently described as “hostile” and “difficult.”

¶ 4. On July 3, 2002, Durham informed Woodruff that Clark had urinated in the sink. Woodruff confronted Clark about the reported conduct. After this warning, the parties’ stories are inconsistent. Clark testified that Woodruff and Durham came to his room yelling and threatening to physically harm him. Woodruff testified that such threats were never made. Rather, it was Woodruffs testimony that he merely admonished Clark and reprimanded him for his behavior.

¶ 5. After the confrontation, it is undisputed that Woodruff left Clark and went into the lounge where he sat talking and smoking a cigarette with Joseph Evans. Clark took a knife from his room and proceeded to the lounge. Clark entered the lounge and attacked Woodruff. Clark stabbed Woodruff once in the abdomen and once in the leg. Ted Downing distracted Clark by throwing a milk carton at him allowing Woodruff time to escape. Clark then dropped the knife and ran out of the building. He went to a nearby building that Gateway used to house transients and remained there until police arrived. When the police arrived, they found Clark sitting with a knife in his hand. Police talked to Clark for approximately five minutes until Clark surrendered the knife. Clark surrendered without further incident and was arrested.

STANDARD OF REVIEW

¶ 6. The standard of review for denial of a motion for directed verdict or for judgment notwithstanding the verdict is the same. Alford v. State, 656 So.2d 1186, 1189 (Miss.1995). Once the jury has returned a guilty verdict, neither the trial court nor this Court is at liberty to direct that the defendant be found not guilty unless, viewed in the light most favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was guilty. Conners v. State, 822 So.2d 290, 293(¶ 6) (Miss.Ct.App. 2001). This Court must consider as true all evidence consistent with the defendant’s guilt, and the State must be given the benefit of all favorable inferences. McClain v. State, 625 So.2d 774, 778 (Miss. 1993). It is not for this Court to pass on the credibility of witnesses, and where the evidence justifies the verdict, it must be accepted as having been found worthy of belief. Grooms v. State, 357 So.2d 292, 295 (Miss.1978). Under this standard of review, we look at the evidence presented at trial that favors the guilty verdict.

ANALYSIS

I. Whether the trial court erred by admitting the second knife into evidence.

¶ 7. Clark’s first assignment of error is that the trial court erred by admitting a second knife into evidence. The second knife was admitted into evidence as Exhibit 5. Clark makes two similar arguments. First, he argues that the prosecution did not “connect the dots.” He contends that the testimony did not establish that the second knife was involved in the assault on Woodruff. Next, he argues that the knife was not relevant, but rather unduly prejudicial, and the knife should have been excluded. Clark does not specify how he was prejudiced by the knife’s admission, but makes a general assertion that it was not relevant.

¶ 8. Relevancy and admissibility of evidence are largely within the discretion of the trial court, and this Court will reverse only where that discretion has been abused. Burt v. State, 493 So.2d 1325, 1326 (Miss.1986). “Relevant evidence” is broadly defined in favor of admissibility. “If the evidence has any probative value at all, the rule favors its admission.” M.R.E. 401, cmt.

¶ 9. The record proves that the second knife was indeed relevant. Durham testified that after Clark stabbed Woodruff with the butcher knife, Clark tried to stab him with a different knife. Officer Robinson’s testimony also referred to the second knife. The police found Clark with the second knife in his hands. During his testimony, Clark said the following about the second knife (Exhibit 5):

Q. So you admit that Exhibit 5, the knife that was found on your person, this was your knife?
A. That’s the knife.
Q. Why did you have a knife?
A. Why did I have a knife.
Q. Why did you have a big ol’ butcher knife stuck in your pants or where-ever it was?
A. I didn’t have it stuck in my pants.
Q. Or in your hand. Why did you have it in your hand when the police officer came over to arrest you?
A. Why did I have it in my hand?
Q. Why did you have it in your hands?
A. Because that’s the knife I had.
Q. That you just stabbed a man with?
A. That’s the knife I had, but I didn’t have that other one.
Q. Well, my question was why did you have that knife?
A. Say again.
Q. Why did you have the knife in your hands on July 3rd, 2002?
A. Because that’s the knife — that’s the knife I used to stab him with.

Based on Clark’s own testimony, the admission of the second knife (Exhibit 5) was relevant. We find that the trial court did not abuse its discretion. Therefore, this issue is without merit.

II. Whether the trial court erred in granting the motion in limine barring any mention of the civil suit pending between David Woodruff, the victim, and Gateivay Rescue Mission.

¶ 10. Clark argues that it was error for the trial court to exclude testimony regarding the pending civil suit between Woodruff and Gateway. Clark maintains that had such evidence been allowed the bias and animosity of Woodruff towards Clark would have been proven and would support Clark’s self-defense theory.

¶ 11. Clark fails to specify how such bias would have been proven and how such evidence was relevant. Accordingly, given the trial court’s broad discretion reviewing evidence, we fail to find error or abuse of discretion by the trial court. Baldwin v. State, 784 So.2d 148, 160(¶ 46) (Miss.2001). Before ruling on the motion, the trial court heard testimony regarding the civil suit and found such testimony to be irrelevant. Rather, the trial court found the evidence to be more prejudicial than probative. Even at trial, Clark’s counsel did not offer a proffer detailing how such evidence would be relevant to Clark’s defense.

¶ 12. Notwithstanding the trial court’s ruling, after an examination of the record, we find that Clark was not prevented from testifying regarding the alleged bias of the prosecution’s witnesses. Clark testified that Woodruff, Durham, and Downing were not “friendly with him,” and furthermore, that he was “afraid” of them. The jury heard and considered this testimony and found the prosecution’s witnesses more credible. Therefore, we find no merit to this issue.

III. Whether the trial court erred in excluding Clark’s testimony regarding his fears of Durham and Woodruff.

¶ 13. Next, Clark argues that the trial court erred in excluding a portion of his testimony. Specifically, Clark claims that the excluded testimony was relevant because it proved his state of mind, i.e., that he was acting in self-defense, at the time of the attack. Clark maintains that since he feared Durham and Woodruff, his attack on Woodruff was justified.

¶ 14. After our examination of the record, we find that Clark was not prevented from testifying about his fear of Durham and Woodruff. Rather, Clark testified regarding such fears on both direct and cross-examination. Clark testified that Durham threatened him and that Wood-ruff and Downing heard the threats. He also testified that Woodruff cursed him. When Clark was asked, “What was your fear based on?” He responded, “I was going to get hurt.”

¶ 15. Furthermore, the prosecution offered evidence regarding Clark’s alleged fears of Durham and Woodruff. Joseph Evans, Ted Downing, and Durham were eyewitnesses to the assault and they each testified regarding Clark’s state of mind. Each witness testified that no threats were made against Clark before he attacked Woodruff. They also testified that Wood-ruff was sitting down, smoking a cigarette, and had no weapon on him when Clark stabbed him. Clark’s own testimony on cross-examination admitted the same.

¶ 16. Clark simply misstates the trial court’s ruling. The trial judge found Clark’s testimony admissible but excluded the repetition of such testimony on redirect. Thus, the record proves that Clark did testify regarding who threatened him, what was said, and under what circumstances. The trial judge properly exercised his discretion to either accept or reject the evidence offered and no prejudice resulted. Austin v. State, 784 So.2d 186, 193-94 (¶¶ 23-24) (Miss.2001). We find this issue to lack merit.

IV. Whether the trial court erred in refusing jury instruction D-9.

¶ 17. Finally, Clark argües that the trial court erred in refusing jury instruction D-9, his self-defense instruction. In denying instruction D-9, Clark argues that the jury was not adequately instructed on the prosecution’s burden of proof. Specifically, Clark maintains that the jury should have been instructed to acquit him if they found that he acted in self-defense.

¶ 18. The evidence from the view of the party requesting the instruction is reviewed when examining jury instructions refused by the trial court. Splain v. Hines, 609 So.2d 1234, 1239 (Miss.1992). Each party has the right to have his theory of the case presented to the jury by instructions, provided that there is credible evidence that supports that theory. Alley v. Praschak Machine Co., 366 So.2d 661, 665 (Miss.1979).

¶ 19. The lower court enjoys considerable discretion regarding the form and substance of jury instructions. Our principal concern is that the jury was fairly instructed and that it understood both Clark’s and the prosecution’s theories of the case. Rester v. Lott, 566 So.2d 1266, 1269 (Miss.1990).

¶ 20. Here, we find that the jury was properly and fully instructed as to Clark’s self-defense theory by jury instruction S-3. Instruction S-3 read:

The Court instructs the Jury that a person may not use more force that reasonably appears necessary to save his life or protect himself from great bodily harm. The question of whether he was justified in using the weapon is for the determination by the Jury.
The law tolerates no justification and accepts no excuse for an assault with a deadly weapon on the pleas of self defense except that the assault by the defendant on the victim was necessary or apparently so to protect the defendant’s own life or his person from great bodily injury and there was immediate danger of such design being accomplished. The danger to life or of great personal injury must be, or being accomplished. The danger to life or of great personal injury must be, or reasonably appears to be, imminent and present at the time the defendant commits the assault with the deadly weapon. The term “apparent” as used in “apparent danger” means such overt, actual demonstration by conduct and acts of a design to take life or do some great personal injury as would make the assault apparently necessary to self-preservation or to escape great bodily harm.

This instruction included each element of self-defense. The instruction also provided that it was the responsibility of the jury to determine whether Clark was justified in using the knife to defend himself.

¶ 21. We have reviewed instruction D-9, requested by Clark and refused by the trial court, and find it to be repetitious of instruction S-3. The trial court is not required to instruct a jury over and over on a principle of law even though some variations are used in different instructions. Groseclose v. State, 440 So.2d 297, 302 (Miss.1983). It is well-settled that all jury instructions are to be read together and if the jury is fully and fairly instructed by other instructions the refusal of any similar instruction does not constitute reversible error. Rester v. Lott, 566 So.2d 1266, 1269 (Miss.1990). Having reviewed the instructions of the trial court to the jury, we find that they accurately and sufficiently guided the jury in their deliberations. Accordingly, this issue is without merit.

¶ 22. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT WITH A WEAPON AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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


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

text:
    In re B.N.N., A Minor. M.A. and A.A., Appellants v. M.D., Appellee.
    No. 2004-CA-00370-COA.
    Court of Appeals of Mississippi.
    April 11, 2006.

      Marcie Tanner Southerland, Vicksburg, attorney for appellants.
    Mary Barnette Cotton, attorney for Ap-pellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. This case results from the denial of a petition to adopt a minor child. In an effort to protect the identity of the child, this Court has removed the names of the parties from the style of the case; To avoid confusion, this Court will refer to the parties with fictitious names.

¶2. Betsy North was born to Maggie North in December 2001, and Maggie died shortly thereafter. Maggie was married at the time Betsy was born; however, Maggie and her husband had been estranged for several months and were in the process of securing a divorce. Maggie was also involved with Bob Jones around the time of Betsy’s birth, but neither he nor Maggie claimed that he was Betsy’s father. As such, no father was listed on Betsy’s birth certificate.

¶ 3. The day after Maggie died, Betsy’s maternal aunt and uncle, Mike and Alice Abies, secured custody of Betsy in the Warren County Youth Court.

¶ 4. On January 16, 2002, Mitch Dixon filed a petition seeking custody and a paternity test, the results of which revealed that Dixon was Betsy’s father. Maggie was never married to . Dixon, who was, and is currently, married to another woman. On March 22, 2002, the Abies filed a petition ■ to adopt Betsy, and Dixon filed a motion for custody or, in the alternative, visitation. The trial court granted the Abies custody of Betsy but denied their petition to terminate Dixon’s parental rights and adopt Betsy. The court also denied Dixon’s motion for custody but granted him visitation.

¶ 5. It is from this ruling that the Abies appeal, arguing, that the chancellor committed error in not terminating Dixon’s parental rights and in denying the Ables’s petition to adopt Betsy. The Abies do not attack, and therefore we do not address, the custody and visitation arrangement which provides Dixon with supervised visitation twice a week. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 6. Our scope of review is limited. “This Court will not overturn a Chancellor’s findings of fact when supported by substantial evidence unless an erroneous legal standard is applied or is manifestly wrong.” Grafe v. Olds, 556 So.2d 690, 692 (Miss.1990).

I. DID THE TRIAL COURT ERR IN FAILING TO TERMINATE DIXON’S PARENTAL RIGHTS AND IN DENYING THE ABLES’S PETITION TO ADOPT BETSY?

¶ 7. Because Maggie was married at the time Betsy was born, we must first address the common-law presumption that the husband of the mother is the father of the child. Although this presumption is “one of the strongest presumptions known to law,” it is not absolute. Krohn v. Migues, 274 So.2d 654, 657 (Miss.1973). At common law, this presumption was rebutted by showing either that the husband was incapable of procreating or that the mother and husband were physically separated at the time of conception. Id. Scientific and technological advancements have resulted in other means of rebutting this presumption, such as paternity testing. See Miss.Code Ann. §§ 93-9-21, 93-9-27 (Rev.2004).

¶ 8. Mississippi law provides that if the probability of paternity, as calculated by an expert qualified as an examiner of genetic tests, is 98% or greater, there is a rebuttable presumption of paternity. Miss.Code Ann. § 93-9-27(2). Dixon and Betsy’s test results showed that Dixon’s probability of paternity was 99.5%, and the court entered an agreed order of paternity acknowledging that Dixon was Betsy’s father based upon the test results. As there is no evidence in the record refuting the statutory presumption, we agree with the chancellor’s finding that Dixon, and not Maggie’s estranged husband, was Betsy’s father.

¶ 9. The Abies argue that Mississippi Code Annotated Section 93-17-5(3) (Rev.2004), which addresses the rights of an unmarried father during an adoption proceeding, controls. That sub-section provides as follows:

In the case of a child born out of wedlock, the father shall not have a right to object to an adoption unless he has demonstrated, within the period ending thirty (30) days after the birth of the child, a full commitment to the responsibilities of parenthood. Determination of the rights of the father of a child born out of wedlock may be made in proceedings pursuant to a petition for determination of rights as provided in Section 93-17-6.

¶ 10. Section 93-17-6 provides in part that “any person alleged or claiming to be the father of a child born out of wedlock who is proposed for adoption ... may file a petition for determination of rights as a preliminary pleading to a petition for adoption .... ” Such petition may not be filed within thirty days of the child’s birth, but may be filed any time after the thirty-day period has expired. Id.

¶ 11. Section 93-17-6(4) addresses how an alleged father may show his commitment to parenthood as required by Section 93-17-5(3).

(4) Proof of an alleged father’s full commitment to the responsibilities of parenthood would be shown by proof that, in accordance with his means and knowledge of the mother’s pregnancy or the child’s birth, that he either:
(a) Provided financial support, including, but not limited to, the payment of consistent support to the mother during her pregnancy, contributions to the payment of the medical expenses of pregnancy and birth, and contributions of consistent support of the child after birth; that he frequently and consistently visited the child after birth; and that he is now willing and able to assume legal and physical care of the child; or (b) Was willing to provide such support and to visit the child and that he made reasonable attempts to manifest such a parental commitment, but was thwarted in his efforts by the mother or her agents, and that he is now willing and able to assume legal and physical care of the child.

¶ 12. On January 16, Dixon filed a petition seeking a paternity test, which he argues should be considered as a demonstration of his willingness to make “a full commitment to parenthood” under Section 93-17-5(3). In turn, the Abies argue that Dixon evidenced no willingness to parent the child; therefore, he lacked standing to contest the adoption. The Abies point to testimony that Dixon and Maggie had agreed to keep their relationship secret, allowing Bob to rear Betsy as his own child. While Dixon did not support Maggie during her pregnancy, he maintains that he refrained from doing so as part of their agreement to lure Bob into believing that Maggie was carrying Bob’s child. Dixon argues that his lack of support prior to Maggie’s death should not be counted against him, as he was merely following her request. The Abies also argue that Dixon never made any attempt to financially support Betsy after she was born, and Dixon counters that the Abies thwarted his attempts to give Betsy clothing and gifts after she was born.

¶ 13. The chancellor addressed the adoption as a contested adoption under Mississippi Code Annotated Section 93-17-8. In so doing, she obviously agreed with Dixon’s argument that his efforts to prove his paternity and secure custody of Betsy in the weeks following her birth sufficiently evidenced his willingness to assume full parental responsibility as required under Section 93-17-5(3). Furthermore, Dixon testified that he attempted to support Maggie prior to Betsy’s birth, but at Maggie’s insistence he did not assist her during the pregnancy. Dixon also testified that he tried to give Betsy gifts after her birth, but the Abies rejected such gestures. In her fifty-two page opinion, the chancellor discussed both the arguments presented by the parties and the applicable law. Recalling our deferential standard of review, we find no error in her conclusion that Dixon did, indeed, demonstrate his commitment to parenthood.

¶ 14. Mississippi law allows adoption over the objection of a parent in limited circumstances. Such circumstances include abandoning or deserting the child or when the objecting parent is mentally, morally, or “otherwise unfit” to rear and train the child. Miss.Code Ann. § 93-17-7(1) (Rev.2004). The statute further provides that adoption may be allowed over a parent’s objection when the parent has abused the child; the parent consistently refused to provide adequate food, clothing, shelter and medical treatment for the child; the parent suffers from a medical or emotional illness, substance abuse or chemical dependancy or other mental or physical deficiency or disability that renders the parent unable or unwilling to provide a permanent home for the child; or the parent’s past or present conduct would pose a risk of “substantial harm” to the child. Miss.Code Ann. § 93-17-7(2) (Rev.2004).

¶ 15. Additionally, a parent may lose his right to object to the adoption of his child by engaging in acts which would permit termination under Section 93-15-103 (Rev.2004). A person may have his parental rights terminated by deserting the child; having no contact for six months with a child under the age of three; abusing the child or another child; where the child evidences “extreme and deep-seated antipathy” toward the parent or when there is “substantial erosion” of the parent-child relationship caused by the parent’s behavior; when the parent has been convicted of certain crimes involving children; and when the child has been adjudicated to be an abused or neglected child and custody of the child has been transferred and a court has determined that reuniting the parent and child is not in the child’s best interest. See Miss.Code Ann. § 93-15-103.

¶ 16. There is a two-step process in determining whether or not a party should be permitted to adopt a child. The court must first determine that one of the grounds for adoption is present: (1) desertion or abandonment or (2) moral unfitness. In re M.L.W., 755 So.2d 558, 562(¶ 16) (Miss.Ct.App.2000) (citing Natural Mother v. Paternal Aunt, 583 So.2d 614, 618 (Miss.1991)). The standard of proof in terminating a parent’s parental rights is “clear and convincing proof.” Miss.Code Ann. § 93-15-109 (Rev.2004); N.E. v. L.H., 761 So.2d 956, 960(¶ 11) (Miss.Ct.App.2000). If the “clear and convincing” standard is met, the chancellor must then consider the child’s best interests. Id. In considering the best interest of a child, Mississippi law presumes that “the best interest of the child will be served by remaining in the custody of [her] natural parents.” Lauderdale County Dep’t. of Human Serv. v. T.H.G. and L.D.G., 614 So.2d 377, 385 (Miss.1992).

¶ 17. Regarding the Ables’s claim that Dixon abandoned or deserted Betsy, abandonment is defined as “any conduct by a parent which evinces a settled purpose to forego all duties and relinquish all parental claims to the child.” Natural Mother, 583 So.2d at 618. The test for abandonment is an objective one: “whether under the totality of the circumstances ... the natural parent has manifested [his] severance of all ties with the child.” S.N.C. v. J.R.D., Jr., 755 So.2d 1077, 1081(¶ 11) (Miss.2000) (quoting Ethredge v. Yawn, 605 So.2d 761, 764 (Miss.1992)). Abandonment deals with the relinquishment of a right or claim, whereas desertion involves an avoidance of a duty or obligation. Ainsworth v. Natural Father, 414 So.2d 417, 420 (Miss.1982).

¶ 18. The Abies argue that Dixon’s behavior prior to Betsy’s birth, coupled with his behavior while the litigation was pending, meets the criteria outlined in Section 93-17-7 and Section 93-15-103 and, therefore, permits the chancellor to allow the adoption over his objection. The Abies point to Dixon’s extensive criminal record, including a conviction for house burglary in 1987; three drug-related convictions in 1988, 1993, and 1998; a 1998 conviction for simple assault on his current wife; and his guilty plea to charges of domestic violence in 2003.

¶ 19. Notwithstanding Dixon’s criminal history, the chancellor found that the Abies failed to present sufficient evidence to terminate his parental rights. There was no evidence that Dixon abused Betsy, nor any of his other children. There was no evidence that Dixon had been convicted of a crime of sexual abuse involving children as outlined in section 93-15-103(g), and there was no evidence that Dixon had abused or neglected Betsy during his visits with her.

¶ 20. There was no evidence presented that Dixon had consistently refused to provide for Betsy’s needs; to the contrary, there was testimony that Dixon attempted to give her gifts, though the Abies consistently rebuffed his gestures. We cannot find error in the conclusion that Dixon did not desert Betsy.

¶ 21. Dixon has attended many of his allowed visits with Betsy, as well as every legal proceeding since the onset of the litigation. His involvement, however limited by the court’s custody arrangement, evidences that Dixon has no intention of severing his ties with Betsy.

¶ 22. Furthermore, although Dixon was self-employed but not working at the time of trial, there was testimony that Dixon cared for his wife’s children full-time and was involved in the children’s activities. Because of Dixon’s drug convictions and because Dixon admitted to previously using marijuana, the chancellor required both Dixon and his wife to submit to random drug tests, which they passed.

¶ 23. The chancellor considered all the testimony presented and concluded that the Abies had failed to present clear and convincing evidence that Dixon’s parental rights should be terminated. On appeal, we are required to “respect the finding of fact made by a chancellor supported by credible evidence and not manifestly wrong.” Bryant v. Cameron, 473 So.2d 174, 179 (Miss.1985). Giving deference to the fact-finding of the chancellor, we agree. This issue is without merit.

¶ 24. THE JUDGMENT OF THE CHANCERY COURT OF WARREN COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


text:
    Keston Taron MIMMITT, Appellant v. ALLSTATE COUNTY MUTUAL INSURANCE COMPANY, INC., Appellee.
    No. 2004-CA-01942-COA.
    Court of Appeals of Mississippi.
    April 18, 2006.

      Floyd J. Logan, Gulfport, attorney for appellant.
    Michael Verdier Cory, Jackson, attorney for appellee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Keston Taron Mimmitt and Wanda Wileta Rodriguez were involved in an automobile accident in the parking lot of the Beau Rivage Hotel and Casino in Biloxi on March 8, 1999. Following the accident, Mimmitt filed a personal injury action against Rodriguez. When no answer was filed, Mimmitt obtained a default judgment in the amount of $25,000.

¶ 2. Mimmitt then filed a writ of garnishment against Rodriguez’s insurer, Allstate County Mutual Insurance Company, Inc. (“Allstate”). Following a bench trial, the trial judge found that Allstate did not have notice of the suit pending against its insured. Therefore, Allstate was not liable for the judgment against Rodriguez.

¶ 3. On appeal, Mimmitt raises three issues: (1) whether the trial court abused its discretion in failing to apply the adverse inference rule to the failure of the garnishee/insurance carrier to offer the claims file into evidence at the trial, (2) whether the garnishee/insurance carrier failed to meet its burden of proof that it exercised reasonable diligence to secure the cooperation of the insured in the defense of the claim, and (3) whether the garnishee/insurance carrier failed to meet its burden of proof that the insured failed to provide notice of the filing of the suit against the insured. We find no error and affirm.

FACTS

¶ 4. On March 8, 1999, Keston Taron Mimmitt was sitting in his vehicle in the parking lot of the Beau Rivage, when the vehicle driven by Wanda Wileta Rodriguez backed into the driver’s side of his parked vehicle. Rodriguez was covered by a policy of insurance issued by Allstate, which provided liability limits in the amount of $25,000 per person and $50,000 per occurrence.

¶ 5. On July 8, 1999, Mimmitt’s attorney wrote a letter to Allstate notifying it of the claim. Joan Vines, an Allstate adjuster, acknowledged the claim and requested a recorded statement from Mimmitt, an estimate of damage, and an opportunity to photograph the vehicle. Allstate then attempted to contact Rodriguez. On August 5, 1999, Allstate tendered a check to Mim-mitt in the amount of $368.25 for the property damage to his automobile.

¶ 6. On August 17, 1999, Allstate wrote to Mimmitt’s attorney and offered to settle the claim for $750. Allstate again wrote to Rodriguez and advised her that Mimmitt may file a lawsuit. Rodriguez was instructed to contact Allstate immediately if she was served with a lawsuit. Allstate took no further action.

¶ 7. On November 30, 2000, Mimmitt filed suit against Rodriguez. Rodriguez was served with process through the Mississippi Secretary of State, pursuant to Rule 4(d)(1)(a) of the Mississippi Rules of Civil Procedure and Mississippi Code Annotated Section 13-3-63 (Rev.2002). Rodriguez did not file an answer to the suit. An entry of default was entered on January 23, 2001. A default judgment, in the amount of $25,000, was entered on May 29, 2001.

¶ 8. On June 11, 2001, Mimmitt filed a suggestion for writ of garnishment against Allstate. Allstate answered and alleged that it was not liable for the judgment because it did not have notice of the lawsuit filed against its insured.

¶ 9. A bench trial was held on June 28, 2004. The trial judge concluded that Allstate did not have notice of the default proceedings against its insured, and the writ of garnishment was the first notice Allstate had of the proceedings. This lack of notice deprived Allstate of the opportunity to further negotiate or defend the lawsuit. Further, Allstate was deprived of any opportunity to contest the damages claimed by Plaintiff. The trial judge found that this lack of notice compelled him to find for Allstate.

STANDARD OF REVIEW

¶ 10. This Court reviews the factual determinations made by a trial judge sitting without a jury using the substantial evidence standard. Classic Coach, Inc. v. Johnson, 823 So.2d 517, 520(¶8) (Miss.2002) (citing Church of God Pentecostal, Inc. v. Freewill Pentecostal Church of God, Inc., 716 So.2d 200, 204(¶ 15) (Miss.1998)). In reviewing the decision of á trial judge sitting without a jury, this Court may only reverse when the findings of the trial judge are manifestly wrong or clearly erroneous. Singley v. Smith, 844 So.2d 448, 451(¶ 9) (Miss.2003).

ANALYSIS

I. Whether Allstate met its burden of proof that it did not have notice of the lawsuit against Rodriguez.

¶ 11. In its answer, Allstate pled that it had no notice of the lawsuit filed against its insured and no notice of the legal proceedings on which the writ of garnishment was based. Here, both parties argue that the other had the burden of proof. We need not decide who had the burden of proof because all of the evidence supported Allstate’s position, and Mimmitt offered no evidence to the contrary.

¶ 12. This case is factually similar to Leader Nat Ins. Co. v. Lindsey, 477 So.2d 1323, 1327-28 (Miss.1985), where the supreme court considered whether the notice of litigation was sufficient. In Lindsey, there was conflicting proof of whether the insurance company had notice. Id. The court determined that there was sufficient evidence of “actual knowledge ... of the existence of a lawsuit sufficient to enable the insurance company to take the necessary steps to protect itself from legal liability,” and the issue was for the finder of fact to determine. Id. at 1328.

¶ 13. Here, the trial judge correctly found that Allstate had no notice, or actual knowledge, of the original lawsuit. Rodriquez, the insured, failed to provide notice to Allstate. Allstate was denied the opportunity to defend Mimmitt’s lawsuit because of Rodriquez’s failure to notify Allstate. Under these circumstances, it would violate the terms of the liability insurance coverage to require Allstate to pay Mim-mitt. Allstate was prejudiced, and it is not liable for the default judgment.

¶ 14. Allstate affirmatively pled lack of notice as a defense to the garnishment action. At trial, Allstate introduced several letters that were sent to Rodriguez about the accident. Marguerite Lowery, an Allstate senior claims analyst, testified that the last letter Allstate sent to Rodriguez instructed Rodriguez to contact Allstate immediately if she was served with a lawsuit. Lowery testified, as the Allstate corporate representative, that Allstate did not have notice of the lawsuit filed against Rodriguez.

¶ 15. Lowery also testified that Allstate hired a private investigator to locate Rodriguez. The investigator contacted Rodriguez and made an appointment to meet with her. Rodriguez did not keep the appointment. The investigator was unsuccessful in further efforts to contact Rodriguez.

¶ 16. Accordingly, we find no merit to this issue.

II. Whether the trial court abused its discretion in failing to apply the adverse inference rule to Allstate’s failure to offer the claims file into evidence.

¶ 17. Mimmitt next argues that the trial court abused its discretion in failing to apply the adverse inference rule to the failure of Allstate to offer the claims file into evidence at the trial. This argument was raised by Mimmitt in his brief to the trial judge, but there Mimmitt asked that the adverse inference rule be applied in light of the duty to diligently secure the cooperation of the insured.

¶ 18. On appeal, Mimmitt argues that the trial court abused his discretion in failing to apply an adverse inference to whether or not Allstate had notice of the lawsuit. We view these as two different arguments. The trial judge was never asked to apply the adverse inference rule to whether or not Allstate had notice of the lawsuit. We will not review on appeal that which was not raised at the trial level. Shaw v. Shaw, 603 So.2d 287, 292 (Miss.1992). This Court will not put a trial judge in error for issues not first presented to the trial court for resolution. New Bellum Homes, Inc. v. Swain, 806 So.2d 301, 306(1111) (Miss.Ct.App.2001). Issues not presented in the trial court may not first be argued on appeal. Id.

¶ 19. The trial judge could not have abused his discretion because he was never asked to apply the adverse inference rule to whether or not Allstate had notice of the lawsuit. Accordingly, we find no merit to this issue.

III. Whether Allstate met its burden of proof that it exercised reasonable diligence to secure the cooperation of Rodriguez.

¶ 20. Mimmitt’s final issue is that Allstate had an affirmative duty to exercise reasonable diligence to secure the cooperation of the insured in the defense of the claim. Mimmitt cites Nationwide Mutual Ins. Co. v. Tillman, 249 Miss. 141, 161 So.2d 604 (1964), as authority for his contention that insurance companies must exercise diligence and good faith to bring about the cooperation of their insured. Tillman was decided under New York law and this proposition has never been found to apply in Mississippi.

¶ 21. In Tillman, the supreme court determined that the law of New York controlled the construction of the insurance contract. The supreme court found that “New York courts have further held that the obligations under the co-operation clause are reciprocal in that, while the insured must co-operate under the conditions of the policy, there is also an obligation on the part of the insurer to exercise diligence and good faith to bring about co-operation.” Id. at 167-68, 161 So.2d at 615. No such duty has been imposed on insurance companies under Mississippi law.

¶ 22. Mimmitt cites this Court to Lindsey to support his proposition that we should follow the general rule announced in Tillman. We disagree. Lindsey does not suggest that the rule in Tillman be extended to Mississippi cases, and in fact, Tillman was not cited in Lindsey.

¶23. The liability insurance policy issued to Rodriguez contains a provision that required Rodriguez to promptly send Allstate copies of notices or legal papers received in connection with the accident. The policy clearly states that if the insured’s “failure to provide notice prejudices our defense, there is no liability coverage under the policy.”

¶ 24. Allstate has a duty to defend claims brought against the insured, when the insured is sued on covered claims. Moeller v. American Guar. & Liability Ins. Co., 707 So.2d 1062, 1068 (Miss.1996), (citing Hartford Acc. & Indem. Co. v. Foster, 528 So.2d 255, 263 (Miss.1988)). The obligation of the insurer is two-fold: (1) to furnish a legal defense to the claim covered under the policy, and (2) to pay all sums the insured becomes legally obligated to pay therefor. Id. at 1069.

¶ 25. Rodriguez had a contractual obligation to notify Allstate that she had been sued. The duty to defend presupposes the duty to notify the insurance carrier of any proceedings instituted against them. Without notice the insurance carrier cannot be expected to provide a defense. Courtney v. Stapp, 232 Miss. 752, 759, 100 So.2d 606, 609. (1958).

¶ 26. We find no merit to this issue. Accordingly, we affirm the judgment of the Harrison County Circuit Court.

¶ 27. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COST OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: IRVING, J.,

text:
    Timothy ALEXANDER, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00813-COA.
    Court of Appeals of Mississippi.
    April 25, 2006.
    David L. Walker, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinehcliff, attorney for appellee.
    Before LEE, P.J., IRVING, GRIFFIS and ROBERTS, JJ.
   IRVING, J.,

for the Court.

¶ 1. A Tate County jury convicted Timothy Alexander of grand larceny, and the court sentenced him to serve ten years in the custody of the Mississippi Department of Corrections. Aggrieved, Alexander appeals and asserts that the trial court erred in granting the prosecution’s motion to require that he be placed in restraints during trial.

¶ 2. Finding no error, we affirm.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 3. Alexander contends that the trial court denied him “a fundamentally fair trial by requiring him to stand trial in shackles.” According to Alexander, the court’s ruling was an abuse of discretion because he was not a flight risk, and there was no proof that he had ever attempted to escape or assault anyone during previous court appearances. In addition, Alexander argues that four law enforcement officers were present during the trial, thereby providing adequate security for all who were present in the courtroom. In Rush v. State, 301 So.2d 297, 300 (Miss.1974), the Mississippi Supreme Court stated:

The appellant contends that being exposed to the jurors in handcuffs denied him a fair trial. It is a common-law right of a person being tried for the commission of a crime to be free from all manner of shackles or bonds, whether of hands or feet, when in court in the presence of the jury, unless in exceptional cases where there is evident danger of his escape or in order to protect others from an attack by the prisoner. Whether that ought to be done is in the discretion of the court, based upon reasonable grounds for apprehension. But, if this right of the accused is violated, it may be ground for the reversal of a judgment of conviction.

(emphasis added).

¶ 4. Prior to the start of trial, the circuit court judge indicated that security officers assigned to the courtroom had informed him that Alexander was an unpredictable and erratic person. The court held a brief hearing in which it permitted the prosecution to question George Hullette, Tate County jail administrator, about Alexander. Hullette testified that Alexander had exhibited aggressive and erratic behavior over the period of time that he had been incarcerated in the jail. According to Hul-lette, Alexander never got along with the other inmates, and had to be isolated and placed in an individual cell. Hullette also testified that Alexander had engaged in fights with other inmates on different occasions. Hullette further testified that he had been assaulted by Alexander while attempting to break up a fight. In light of the incidents involving Alexander, the prosecution asked the court to take extra precautions.

¶ 5. Hullette recommended to the court that Alexander be placed only in leg restraints so that if he decided to run, the courtroom security officers would then have a better chance of capturing him. Based on Hullette’s testimony and the concerns of other courtroom security officers, the judge ordered that Alexander’s legs be shackled, but his hands were ordered to be free of any restraints so that he could take notes, review exhibits, or assist his lawyer in any other manner throughout the trial. The court cited safety concerns for all who may have been potentially present in the courtroom during the trial as the basis for its ruling. From the record testimony, it is clear that the trial judge had sufficient justification for requiring that Alexander be placed in leg restraints during his trial.

¶ 6. Furthermore, the record reveals that the prosecution had made arrangements for the defense to use a witness room immediately adjacent to the defense table in an effort to avoid having the jury see Alexander in shackles. Moreover, in an effort to mitigate any possible prejudice, Alexander’s attorney had him placed at the defense table' outside of the presence of the jury. Alexander was asked to put his feet under the table and keep them there because there was a rail or bar in front of the defense table that blocked his feet from the jury’s viewpoint. We note that the record does not indicate whether the jury was even aware of Alexander’s leg restraints.

¶ 7. There was evidence that Alexander posed a flight risk; therefore, we cannot say that the trial court abused its discretion in ordering him to be placed in leg restraints. This issue is without merit.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF TATE COUNTY OF CONVICTION OF GRAND LARCENY AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TATE COUNTY.

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

      . The grand larceny charge stemmed from the theft of a vehicle owned by Rodney B. Evans.


text:
    Demetrius McCLAIN, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00390-COA.
    Court of Appeals of Mississippi.
    April 25, 2006.
    W.S. Stuckey, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Quanterri Thomas was working the night shift on June 7, 2004, at Gas and Go in Greenwood. Demetrius McClain arrived at the store in a red Chevy Cavalier, entered the gas station and spoke with Thomas but left the premises. McClain returned on foot a short time later, and Thomas and McClain had a short conversation before McClain left again. After McClain left, two individuals appeared on the security television monitor entering and exiting the supply room in which the car wash supplies were stored. Thomas called the police.

¶ 2. Officer Melvin Cook of the Greenwood Police Department responded to Thomas’s call, and as he approached the Gas and Go he saw Russell Thornton standing at the storage room door, while McClain entered and exited the storage space. Officer Cook also observed a red car parked by the storage room. The two men attempted to leave in the red car which McClain was driving. Officer Cook apprehended the men and searched the vehicle, finding a crowbar, a white sock containing coins, a leaf blower and two cases of Armor All. At trial, Money Pillai, who owns Gas and Go, identified the items as his.

¶ 3. McClain was convicted by a jury in Leflore County of burglary of a business and sentenced to serve seven years in the custody of the Mississippi Department of Corrections with three and one-half years suspended, followed by three and one-half years of post-release supervision to run concurrently to the sentence McClain was serving in an unrelated matter.

¶ 4. It is from this conviction that McClain appeals. Finding no error, we affirm.

DISCUSSION

¶ 5. McClain’s attorney, W.S. Stuckey, Jr., filed a brief with this Court which stated as follows:

1. It is the opinion of counsel for the Appellant that there are no arguable issues supporting Appellant’s appeal, and that he has reached this conclusion after scouring the record thoroughly, specifically examining:
(a) the reason for the arrest and the circumstances surrounding the arrest;
(b) any possible violations of Appellant’s right to counsel;
(c) the entire trial transcript:
(d) all rulings of the trail [sic] court;
(e) possible prosecutorial misconduct;
(f) all jury instructions;
(g) all exhibits, whether admitted into evidence or not; and
(h) possible misapplication of the law in sentencing.
2. Counsel for Appellant shall forward a copy of this Brief to Appellant that counsel could find no arguable issues in the record, but that he has the right to file a pro se supplemental brief, if he desires.
3. Counsel for Appellant requests this Court allow 30 days additional time for Appellant to file said supplemental brief.

¶ 6. These declarations were filed in conformity with Lindsey v. State, No.2003KA-00331-SCT, —. So.2d-, 2005 WL 613396 (Miss. Mar.17, 2005). Under Lindsey, should McClain file a brief raising “any arguable issue” or if this Court should discover “any arguable issue” on our review of the record, if circumstances warrant, this Court must require counsel for the appellant to file supplemental briefing “regardless of the probability of the defendant’s success on appeal.” Id. at 5 (¶18).

¶ 7. To date nothing has been received by this Court from McClain. Additionally, the State agrees with Stuckey’s assertion that there are no arguable issues supporting an appeal.

¶ 8. This Court has reviewed the record, the clerk’s papers and the exhibits and has found no arguable issues on the merits of this case. As we find no issue warranting reversal, we affirm. See Eaton v. State, 913 So.2d 413, 416 (¶ 6) (Miss.Ct.App.2005)

¶ 9 THE JUDGMENT OF THE CIRCUIT COURT OF LEFLORE COUNTY OF CONVICTION OF BURGLARY OF A BUSINESS AND SENTENCE OF SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THREE AND ONE-HALF YEARS TO SERVE AND THREE AND ONE-HALF YEARS OF POST-RELEASE SUPERVISION, TO RUN CONCURRENTLY TO THE SENTENCE THE APPELLANT IS NOW SERVING AND PAY RESTITUTION OF $400, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEFLORE COUNTY.

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