author: ISHEE, J.,

text:
    CASINO MAGIC and Zurich American Insurance Company, Appellants, v. Dixie NELSON, Appellee.
    No. 2006-WC-00493-COA.
    Court of Appeals of Mississippi.
    Feb. 6, 2007.
    Rehearing Denied June 12, 2007.

      William D. Blakeslee, Gulfport, attorney for appellants.
    James Kenneth Wetzel, Gulfport, attorney for appellee.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. On April 11, 2002, Dixie Nelson injured her right shoulder while working for her employer, Casino Magic in Bay St. Louis, Mississippi. Casino Magic and its insurance carrier, Zurich American Insurance Company, (collectively referred to as Casino Magic) provided light-duty work and certain medical benefits, but then denied the compensability of the injury and did not pay any workers’ compensation disability benefits. Nelson filed a petition to controvert. The Mississippi Workers’ Compensation Commission (Commission) affirmed the decision of the administrative judge finding that Nelson had been temporarily totally disabled. The Circuit Court of Hancock County affirmed the Commission’s decision. Aggrieved, Casino Magic appeals asserting the following issues for this Court’s review:

I. Whether the finding of the Commission that Nelson has been temporarily totally disabled since April 11, 2002 is wrong as a matter of law or is not supported by substantial evidence.
II. Whether the finding of the Commission that Nelson’s medical condition is related to her employment with Casino Magic is supported by substantial evidence.

Finding no error, we affirm.

FACTS

¶ 2. At the time of the administrative judge’s decision, Nelson was a forty-three-year-old resident of Bay St. Louis, Mississippi. After graduating from high school, Nelson took some classes at Pearl River Junior College, but did not receive a degree. She had vocational and other training, such as cake decorating, flower arranging, home interior decorating, and word processing.

¶ 8. Casino Magic opened in September of 1992. Approximately four months later, in January of 1993, Nelson began working for Casino Magic as a clerk in the main cage of the casino. She was eventually promoted to the position of “main banker,” a position which she held for five or six years. Over the course of her employment with Casino Magic, Nelson always received top pay raises, was never in trouble, and was twice named “employee of the month.”

¶ 4. In her main banker position, Nelson was responsible for performing any necessary job in the cage, which functions as the bank of the casino. Nelson, who is only four feet and eleven and one-half inches tall, testified that she had a very difficult time reaching for things across the counters on the inside of the cage because they came up to her breasts. She further testified that she spent much of her eight hour workdays stretching across the counters in order to reach a time clock to stamp every “piece of paper work” coming in or out of the cage. According to Nelson, she reached for the time clock as many as 300 to 400 times a day, as the exact time of every transaction had to be documented. Nelson complained to her superiors on numerous occasions about her struggle to reach the time clock, but nothing was done to accommodate her.

¶ 5. On April, 11, 2002, Nelson injured her right shoulder while reaching for the time clock. Nelson later testified that the pain was an excruciating stabbing pain underneath her right shoulder. She reported the injury to her supervisor, and later that day, Nelson went to Gulf South Urgent Care where she was seen by Dr. Romine. Dr. Romine diagnosed Nelson with “cervical myositis” and stated that she was able to return to light-duty, but advised that she do no cross-body arm twisting and no lifting, pulling, or twisting movements with more than ten pounds. Dr. Romine also advised Nelson to see her own doctor. Consequently, on April 22, 2002, Nelson went to see Dr. Bertin C. Chevis, a family practitioner in Bay St. Louis. Dr. Chevis gave Nelson a steroid injection, took her off work for two days, and limited her to light duty (lifting no more than ten pounds) upon her return to work. Dr. Chevis ordered an MRI of the cervical spine and noted that Nelson was unable to lift, bend, stoop or cope in stressful situations. Dr. Chevis also requested a medical leave of absence for Nelson, but Casino Magic denied the request.

¶ 6. On April 25, 2002, Casino Magic assigned Nelson to light-duty work which consisted of rolling silverware and napkins in the buffet. Nelson testified that rolling silverware was more difficult for her to perform than her regular job. Consequently, after performing this job for a week and a half, Nelson took vacation time and then requested to return to her regular position. She returned to her job as main banker until she had the MRI and was given medical leave.

¶ 7. In addition to Dr. Romine and Dr. Chevis, Nelson was seen by several physicians following her injury on April 11, 2002, including Dr. David B. Clause, an orthopaedic surgeon, Dr. Terry Smith, a neurosurgeon, Dr. Michael W. Lowry, a neurosurgeon, and Dr. Joe Jackson, a neurologist. Nelson also underwent physical therapy with Matthew Capo, a physical therapist in Bay St. Louis. Capo initially examined Nelson on April 12, 2002. He opined that Nelson’s symptoms were work-related because she complained of pain when she reached for chips or time cards at Casino Magic.

¶ 8. Casino Magic sent Nelson to Dr. Clause on May 6, 2002. Dr. Clause noted that Nelson was complaining of shooting pain in her trapezium and neck pain when her arm was lifted overhead. He further noted that there were no obvious signs of trauma, but there was tenderness over the trapezium. Dr. Clause advised Nelson to continue physical therapy, but he did not recommend that she have an MRI. Nelson returned to Dr. Clause for a follow-up visit on June 3, 2002. Dr. Clause opined that the “big problem is coming from her neck,” and he recommended a cervical MRI. Nelson visited Dr. Clause again on June 26, 2002. Dr. Clause noted that the MRI showed a “severe herniated nucleus pulposus at C5-6 and C6-7,” and he recommended that she see Dr. Smith, a neurosurgeon, for further evaluation.

¶ 9. Dr. Smith reviewed Nelson’s MRI and noted that the disc abnormality was more on the left than the right. Thus, Dr. Smith stated that he was not sure whether the disc abnormality was causing her right arm symptoms. Nonetheless, Dr. Smith recommended that Nelson receive a steroidal epidural injection in the neck. On July 15, 2002, Nicole Fritshce, a workers’ compensation claim representative, wrote a letter to Nelson stating that “Dr. Smith has determined that your cervical complaints are not related to your work injury.” Consequently, Casino Magic stopped payment on a check for $645.80 for temporary total disability benefits.

¶ 10. At Dr. Chevis’s recommendation, Nelson went to see Dr. Lowry, a neurosurgeon, on August 26, 2002. After examining Nelson and reviewing the cervical MRI, Dr. Lowry concluded that Nelson had degenerative cervical disc disease. Dr. Lowry further concluded that “[t]he degenerative nature of [the] lesions make[s] it pretty clear that they have been longstanding in getting to their current degree, but it is also clear that the incident at work most likely aggravated this underlying condition.” Consequently, Dr. Low-ry recommended that Nelson undergo surgery and additional diagnostic testing. Around this period of time, Nelson lost all medical benefits when her husband was terminated from his job and when she was fired by Casino Magic.

¶ 11. On March 6, 2003, almost a year after her injury, Nelson was examined by Dr. Jackson, a neurologist. Dr. Jackson reviewed Nelson’s medical records, including Nelson’s deposition and the deposition of Dr. Lowry, which were submitted to him by Casino Magic’s attorney. Dr. Jackson concluded that Nelson sustained a muscle ligament injury to the shoulder on April 11, 2002, due to repetitive overuse of the shoulder. Dr. Jackson also concluded, however, that Nelson’s cervical spine problem was unrelated to the work incident. Nevertheless, in a subsequent report, Dr. Jackson opined that it was “likely that the April 11, 2002 injury simply exacerbated” a pre-existing condition. Dr. Jackson recommended that Nelson undergo further tests, including EMG nerve conduction studies and a functional capacity evaluation.

¶ 12. After conducting a lengthy hearing, the administrative law judge determined that Nelson received a work-related injury to her neck, right shoulder, and/or thoracic spine on April 11, 2002. The administrative law judge further found that Nelson had “severe degenerative problems in her cervical spine and other possible problems with her right shoulder and thoracic spine which were significantly aggravated by the work situation at Casino Magic.” According to the administrative law judge, Nelson received a “gradual and repetitive injury” that became disabling on April 11, 2002. The administrative law judge found substantial medical evidence to support a finding that repetitive reaching for the time clock aggravated a preexisting condition. Consequently, the administrative law judge found that Nelson was temporarily totally disabled and held that Casino Magic was responsible for additional medical treatment and diagnosis testing as recommended by her treating physicians.

STANDARD OF REVIEW

¶ 13. This Court’s scope of review in appeals of Workers’ Compensation cases is limited to a determination of whether the decision of the Commission is supported by substantial evidence. Westmoreland v. Landmark Furniture, Inc., 752 So.2d 444, 447(¶ 7) (Miss.Ct.App.1999). The Commission sits as the ultimate finder of facts; its findings are subject to normal, deferential standards upon review. Natchez Equip. Co. v. Gibbs, 623 So.2d 270, 273 (Miss.1993). We will only reverse the Commission’s rulings where findings of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious. Westmoreland, 752 So.2d at 448(¶ 8); Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1225 (Miss.1997).

ISSUES AND ANALYSIS

I. Whether the finding of the Commission that Nelson has been temporarily totally disabled since April 11, 2002 is wrong as a matter of law or is not supported by substantial evidence.

¶ 14. Under this assignment of error, Casino Magic takes issue with the administrative law judge’s finding that “there is an unpleasantness surrounding this employee, employer, and workers’ compensation claim that makes it understandable that Ms. Nelson would not want to return to an employer that has been unwilling to believe her medical complaints or provide medical benefits.” Casino Magic asserts that “unpleasantness” regarding a workers’ compensation claim is not a legal basis for a disability under the Mississippi Workers’ Compensation Act. Casino Magic further asserts that the finding of disability in this case was not supported by medical findings, as Nelson was returned to light-duty work, and such light-duty work was provided by Casino Magic.

¶ 15. The administrative law judge reviewed much of the medical evidence in finding Nelson to be temporarily totally disabled. In support of her findings, as adopted by the Commission, the administrative law judge specifically noted the records from the urgent care clinic stating that Nelson’s condition was aggravated by her work. The judge further noted Dr. Lowry’s conclusion that the reaching incident at work aggravated Nelson’s underlying degenerative condition, as well as Dr. Jackson’s conclusion that it was “likely that the April 11, 2002 injury simply exacerbated” a pre-existing condition. Consequently, the administrative law judge determined that there was substantial medical evidence to support Nelson’s claim that repetitive reaching for the time clock aggravated a pre-existing condition.

¶ 16. In addition to this medical evidence, the administrative law judge also considered Nelson’s testimony that she did not believe that she could hold down any form of gainful employment due to her condition, as well as her testimony that the light-duty work provided to her was more difficult than her previous position as main banker. The administrative law judge determined that Nelson was “an articulate, believable witness in her own behalf’ and noted that Nelson was employed by Casino Magic for more than nine years, and that she earned awards and recognition as an excellent worker until the incident on April 11, 2002. Consequently, we find substantial evidence to support the Commission’s finding that Nelson was temporarily totally disabled. This issue is without merit.

II. Whether the finding of the Commission that Nelson’s medical condition is related to her employment with Casino Magic is supported by substantial evidence.

¶ 17. Casino Magic argues that Nelson failed to prove that she sustained a work-related injury which resulted in a condition requiring medical treatment. In support of this argument, Casino Magic asserts that, although Nelson claimed that she had no symptoms until a sudden traumatic event took place on April 11, 2002, she testified that the accident was cause by “[cjontinuously” having to reach for things ... causing [her] to stretch and reach.” Casino Magic also cites Nelson’s medical records which report no acute trauma as a cause of her complaints. Noting these inconsistencies, Casino Magic argues that the finding of medical causation is unsupported by substantial evidence.

¶ 18. Mississippi Code Annotated section 71-3-3(b) (Rev.2000) contemplates the aggravation of a pre-existing condition, as it provides in relevant part that an injury arises “out of and in the course of employment ... if contributed to or aggravated or accelerated by the employment in a significant manner.” The record shows that Nelson, at four feet and eleven and one-half inches tall, was required by her job to reach over a counter and stretch for the time clock as many as 300 to 400 times a day. Furthermore, despite complaining to her supervisors about her difficulty reaching for the time clock, Casino Magic failed to take steps to accommodate Nelson. The record further shows that on April 11, 2002, Nelson complained to her supervisor of excruciating pain in her shoulder after reaching for the time clock at work. Nelson went to an urgent care clinic later that day to receive treatment for the pain. Thus, Nelson’s extensive medical treatment clearly began after an incident at work on April 11, 2002.

¶ 19. Dr. Lowry concluded that the reaching incident at work aggravated an underlying degenerative condition. Furthermore, although Dr. Jackson, initially stated that he did not believe Nelson’s complaints were related to the reaching incident, he later concluded that the reaching incident on April 11, 2002 exacerbated a pre-existing condition. Consequently, we find that substantial, both medical and the lay testimony of Nelson, supports the Commission’s decision. This issue is without merit.

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

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


source: Caselaw Access Project

author: CARLTON, J„

license: Public Domain

text:
    Anthony Ryan LOVELESS, Appellant v. CITY OF BOONEVILLE, Mississippi, Appellee.
    No. 2006-KM-00435-COA.
    Court of Appeals of Mississippi.
    May 22, 2007.

      Tommy Dexter Cadle, Kenneth Eugene Floyd, attorneys for appellant.
    William Wayne Smith, Booneville, attorney for appellee.
    Before LEE, P.J., BARNES and CARLTON, JJ.
   CARLTON, J„

for the Court.

¶ 1. Anthony Ryan Loveless was convicted by a Prentiss County Circuit Court judge for the crimes of driving under the influence of intoxicating liquor, possession of beer in a dry county, and speeding. On appeal, he challenges the jurisdiction of the circuit court and the sufficiency of the evidence. Finding no error, we affirm.

FACTS

¶2. On April 25, 2006, just after 9:00 p.m., Booneville Police Officer Joshua Davis conducted a traffic stop. Officer Davis testified that he conducted the traffic stop because Loveless was driving fifty-two miles per hour in a thirty-five miles per hour speed zone. Officer Davis noticed that Loveless exhibited signs of intoxication. After Officer Davis radioed in the tag number of the vehicle he had stopped, he was notified that a vehicle had recently run over a sign and pushed it into another vehicle while exiting a local restaurant. When Officer Davis received the information, the dispatcher told him to disregard the call because the tag number of the stopped vehicle matched that of the vehicle that had caused the damage at the restaurant.

¶3. Officer Greg Mitchell, who at the time had nine years of law enforcement experience, arrived at the scene to assist with the traffic stop. Officer Davis had been certified as a law enforcement officer approximately six weeks prior to the traffic stop. Officer Davis had never been involved in a DUI arrest prior to the incident with Loveless. Officer Davis had been trained in administering field sobriety tests but had never previously administered the tests to a suspected offender.

¶ 4. Officer Davis conducted a horizontal gaze nystagmus (HGN) test on Loveless, and the walk and turn field sobriety test. Officer Davis testified that the wind was blowing “pretty decent” during the traffic stop. During the tests Loveless informed the officer that Loveless had previously suffered from head trauma and also had an injured hip. Both of these alleged physical conditions were factors that could negatively impact an individual’s performance during a field sobriety test.

¶5. Loveless exhibited signs of intoxication from the HGN test and stumbled more than once during the walk and turn test. The two officers then transported Loveless to the Booneville justice center for the purpose of conducting a breath analysis on the Intoxilyzer 5000. The machine at the police station was out of service. Officers Davis and Mitchell took “approximately an hour or more” trying to get the Intoxilyzer 5000 machine to function at the station. There was a functioning machine fifteen minutes away from their location but it was not utilized to test Loveless. No breath analysis was ever obtained from Loveless. The officers did not perform any additional sobriety test, nor was Loveless afforded the opportunity to take a blood or urine alcohol test. Officer Davis decided to charge Loveless with simple driving under the influence instead of getting an analysis of alcohol content and charging Loveless with a more serious offense.

¶ 6. Loveless was charged with committing three offenses. He was issued a citation for speeding, a second citation for operating a motor vehicle under the influence of intoxicating liquor in violation of Mississippi Code Annotated § 63 — 11— 30(l)(a) (Rev.2004), and also for possession of beer in a dry county in violation of Mississippi Code Annotated § 67-3-13 (Rev.2005).

¶ 7. On June 9, 2005, Loveless was convicted by the Booneville Municipal Court for the crimes of driving under the influence of intoxicating liquor first offense, possession of beer in a dry county, and speeding. He appealed the convictions for a de novo trial in the Prentiss County Circuit Court. Loveless was convicted by the circuit court for the crime of driving under the influence of intoxicating liquor first offense, possession of beer in a dry county, and speeding. The circuit court sentenced Loveless to forty-eight hours imprisonment, but suspended that sentence pending this appeal. Loveless was fined $1,000 for driving under the influence, $500 for possession of beer, and $100 for speeding. On appeal, he challenges the jurisdiction of the circuit court and the sufficiency of evidence for his conviction of driving under the influence. His appeal has been assigned to this Court.

DISCUSSION

1. Jurisdiction

¶ 8. The uniform traffic ticket Loveless received for driving under the influence stated that the municipal court was located at 203 N. Main Street, Boone-ville, MS 38829. Over five years prior to the issuance of this citation, the municipal court had changed locations to 1901 East Chambers Drive in Booneville. This correct address was printed on the ticket Loveless received for speeding. Loveless raised this point in the circuit court. The circuit court granted the City’s motion to amend the address on the ticket. The circuit court ruled that Loveless received adequate notice as to the date, time and place of his court appearance. The circuit court also held that there was no prejudice to Loveless as he never claimed that he failed to appear or otherwise received inadequate notice of his court appearance.

¶ 9. Loveless argues that both the Booneville Municipal Court and the Circuit Court of Prentiss County were without jurisdiction. He argues that the City’s attempt to amend the ticket was insufficient to cure the defect because nothing in the record transmitted from the municipal court reflected any amendment. He cites the following case law to support his conclusion. Wheeler v. Stewart, 798 So.2d 386, 390 (Miss.2001) (discussing statutory requirements of traffic tickets); Bramlette v. State, 193 Miss. 24, 8 So.2d 234 (1942) (circuit court cannot acquire jurisdiction where lower court was without jurisdiction). He also relies on an opinion by the Mississippi Attorney General which relies upon Municipal Traffic Tickets, 000015214 Op. Att’y Gen. No.2002-0487 (Sept. 6, 2002).

¶ 10. The City argues that there is no jurisdictional defect because it moved the circuit court to amend the address reflected on the citation. The City also argues that nowhere is there a statutory mandate that the address of the municipal court be located on the ticket. The City argues that the wrong address on the ticket is merely a scrivener’s error of no consequence.

¶ 11. Whether the circuit court had jurisdiction to hear the charges against Loveless is a question of law which we review de novo. Jensen v. State, 798 So.2d 383, 384(¶ 6) (Miss.2001). Concerning the interpretation of a statute, the supreme court has stated that:

a statute imposing criminal penalties must be strictly construed in favor of the accused, it should not be so strict as to override common sense or statutory purpose. Strict construction means reasonable construction. This Court has held that the test concerning statutory construction is whether a person of ordinary intelligence would, by reading the statute, receive fair notice of that which is required or forbidden.

Palmer v. City of Oxford, 860 So.2d 1203, 1211(¶ 23) (Miss.2003) (internal citations omitted).

¶ 12. Statutory law requires that all municipal “criminal proceedings shall be brought by sworn complaint filed in the municipal court.” Miss.Code Ann. § 21-23-7 (Rev.2001). Our Uniform Traffic Ticket Law requires the following:

Every traffic ticket shall show, among other necessary information, the name of the issuing officer, the name of the court in which the cause is to be heard, and the date and time such person is to appear to answer the charge. The ticket shall include information which will constitute a complaint charging the offense for which the ticket was issued, and when duly sworn to and filed with a court of competent jurisdiction, prosecution may proceed thereunder.

Miss.Code Ann. § 63-9-21(3)(c) (Rev. 2004).

¶ 13. The supreme court has held that the sworn complaint requirement of Section 21-23-7 is met when the traffic ticket includes the information required in Section 63-9-21(3)(c). Wheeler, 798 So.2d at 391(¶ 8). The tickets in Wheeler “notified Wheeler to appear at the municipal court on a date certain, or to contact the municipal court clerk on or before that date certain.” Id. at 389(¶ 5). That information met the requirements of the statute. Id. at 391(¶ 8).

¶ 14. Here, all of the statutorily required information was contained on the traffic citation issued to Loveless. There is no requirement that the address of the municipal court be contained on the ticket. Prudence suggests that the proper address should be contained on traffic tickets to avoid situations where an alleged offender may be prejudiced by incorrect information. However, where no such prejudice occurs, and without a statutory mandate to include the location of a municipal court, the ticket issued to Loveless satisfied the requirements of the statute. The municipal court and circuit court had jurisdiction to hear the charges against Loveless.

2. Sufficiency of Evidence

¶ 15. Loveless argues that there was insufficient credible evidence that he was driving under the influence of intoxicating beverages. He relies on case law to conclude that evidence against him has already been held as insufficient to convict a defendant of driving under the influence. Richbourg v. State, 744 So.2d 352 (Miss.Ct.App.1999). Loveless directs our attention to evidence favorable to him, such as the more seasoned officer not rendering an opinion whether Loveless was under the influence of intoxicating liquor.

¶ 16. In Richbourg, this Court rejected the sufficiency of the HGN test as proof of intoxication. Richbourg, 744 So.2d at 354(¶ 5) (citing Young v. City of Brookhaven, 693 So.2d 1355 (Miss.1997)). We also held that there was legally insufficient evidence to convict Richbourg of driving under the influence of intoxicating liquor. The evidence against Richbourg could not include the results of the HGN test. Id. at 355(¶ 8). Testimony of the state trooper included that there were beer cans in the trunk of the vehicle, and an odor of intoxicating beverages on Richbourg’s person. Other than the HGN, no other field sobriety test was conducted such as the walk and turn or leg stand tests. The trooper testified that Richbourg did not have slurred speech and was not stumbling or staggering. Id. at 356 (¶¶ 9-11).

¶ 17. This Court has distinguished Richbourg twice: Saucier v. City of Poplarville, 858 So.2d 933 (Miss.Ct.App.2003); Knight v. City of Aberdeen, 881 So.2d 926 (Miss.Ct.App.2004). In Saucier, field sobriety tests were administered that have been distinguished from the HGN test. Saucier, 858 So.2d at 936 (¶¶ 16-17). The officer testified that Saucier was unable to pass these coordination tests and that Saucier exhibited “slurred speech, smell of alcohol, and glazed eyes.” Id. This evidence was sufficient to prove intoxication. Id.

¶ 18. In Knight, sufficient evidence consisted of Knight stating that he had consumed six beers, one just twenty minutes prior to the traffic stop. The arresting officer witnessed Knight driving his vehicle erratically, smelled alcohol, observed Knight stumble and attempt to stabilize himself by holding on to the bed of his truck, and the portable Intoxilyzer machine reflected that Knight was intoxicated. Knight, 881 So.2d at 929 (¶¶ 8 — 14).

¶ 19. In reviewing whether evidence is legally sufficient, we consider all of the evidence in the light most favorable to the City. Shaw v. State, 915 So.2d 442, 448(¶ 24) (Miss.2005). The relevant statutory provision states: “(1) It is unlawful for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor....” Miss.Code Ann. § 63-11-30(l)(a) (Rev.2004). The State must advance proof that Loveless was driving under the influence of intoxicating liquor, not that the driving ability of Loveless was impaired.

¶ 20. In accordance with the precedent established in Young, we exclude the testimony concerning the HGN test. Officer Davis testified that he noticed a strong smell of alcohol coming from Loveless. Officer Davis observed that Loveless had glazed, bloodshot, and heavy eyes, and that his speech was slurred. Loveless was unable to multitask when Officer Davis asked him for his proof of insurance and questions like where Loveless was coming from. Loveless had difficulty obtaining his insurance document and simultaneously answering the officer’s questions.

¶ 21. Upon exiting the vehicle, Loveless was holding onto the tailgate as he walked, as if to be stabilizing himself. Officer Davis asked Loveless how much Loveless had to drink that night. Loveless responded that he had consumed three or four beers approximately two or three hours prior to the stop. Officer Davis began to administer the walk and turn field sobriety test to Loveless. After Loveless stumbled more than once the officer did not perform any further field sobriety tests for fear that Loveless would fall and injure himself. Officer Davis concluded that Loveless was under the influence of intoxicating liquor. The officer’s opinion was properly accepted as lay testimony. Christian v. State, 859 So.2d 1068, 1070-71 (¶¶ 5-10) (Miss.Ct.App.2003). Viewing the evidence in a light most favorable to the City, the evidence presented to the trial court was sufficient to convict Loveless.

¶ 22. THE JUDGMENT OF THE PRENTISS COUNTY CIRCUIT COURT OF CONVICTION OF DRIVING UNDER THE INFLUENCE FIRST OFFENSE, POSSESSION OF BEER IN A DRY COUNTY, AND SPEEDING AND SENTENCE OF FORTY-EIGHT HOURS IN THE PRENTISS COUNTY JAIL AND $1,600 IN FINES IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: ROBERTS, J.,

text:
    John D. RICHARDSON, Appellant v. Sheri Richardson STOGNER, Appellee.
    No. 2006-CA-00777-COA.
    Court of Appeals of Mississippi.
    May 29, 2007.

      Richard C. Fitzpatrick, Poplarville, attorney for appellant.
    Jose Benjamin Simo, attorney for appel-lee.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. This domestic relations matter arose from a divorce of the parties in the State of Louisiana. Following Sheri Richardson Stogner’s move to Mississippi, she filed a complaint requesting child support, which was later amended to include a request for a determination of child custody, as at the time of her complaint there was no court-issued order speaking to support or custody. Following a denial of John Richardson’s motion to dismiss, which raised the defenses of lack of personal and subject matter jurisdiction, the Chancery Court of Walthall County granted Stogner legal and physical custody of the parties’ son and also awarded her child support. Aggrieved by this, Richardson now appeals and raises the following issues:

I. WHETHER THE CHANCERY COURT HAD PERSONAL JURISDICTION OVER THE PERSON OF RICHARDSON REQUIRED TO ENTER AN AWARD OF CHILD SUPPORT.
II. WHETHER THE CHANCERY COURT HAD SUBJECT MATTER JURISDICTION TO ENTER THE CHILD SUPPORT AWARD.

¶2. Finding that the trial court lacked personal jurisdiction over Richardson and subject matter jurisdiction over the issues, we reverse and render.

FACTS AND PROCEDURAL HISTORY

¶ 3. Richardson and Stogner were married in Louisiana on May 2, 1987, and their son, Shae Richardson, was born November 22, 1987. Several years later, while the parties still lived in Louisiana, Richardson filed for divorce in the Twenty-Second Judicial District Court in the Parish of Washington in November of 2000. Within his complaint for divorce, Richardson also requested an adjudication on child custody, child support and property division. Prior to adjudication by the Washington Parish court, the parties reached an agreement, entitled “consent judgment,” concerning child custody, visitation and support, and a letter explaining as such was sent to the Washington Parish court on December 4, 2001. The consent judgment stipulated, in part, that Richardson was to pay $400 per month to Stogner for child support and that Stogner would be the primary domiciliary parent. Subsequently, a judgment of divorce was entered on February 5, 2002. However, the parties’ consent judgment was not sent to, nor entered by, the Washington Parish court. In accordance with the consent judgment, Richardson paid support to Stogner regularly at their shared place of employment in Louisiana. In 2001, Stogner moved to Walthall County, Mississippi with Shae, though she continued to work in Louisiana. Also, Shae continued to attend school in Louisiana. Additionally, Richardson continued to pay child support at the parties’ place of employment in Louisiana and he never exercised visitation with Shae in Mississippi.

¶ 4. The parties continued to abide by the consent judgment until December 6, 2005, when Stogner initiated a Rule 81 action and filed her complaint for child support and related relief in the Chancery Court of Walthall County. Though the initial hearing date was set for December 19, 2005, it was continued until March 21, 2006. Following this continuance, an agreed order setting the case for trial was signed by counsel for both parties. On February 7, 2006, Richardson filed a motion to enter the consent judgment with the Washington Parish court. The court granted the motion and signed the consent judgment the same day. On February 14, 2006, Richardson filed a motion to dismiss raising lack of subject matter jurisdiction and personal jurisdiction. On March 1, 2006, Stogner filed an amended complaint in which she requested, in addition to child support, custody of Shae. The hearing was subsequently held on March 21, 2006. Though Richardson was not present at the March 21 trial, his counsel, Richard Fitzpatrick, appeared on his behalf for the sole purpose of challenging jurisdiction. After hearing arguments from both parties, the court denied Richardson’s motion to dismiss and proceeded to hear the merits of Stogner’s complaint, though Fitzpatrick declined to participate. Following the testimony of Stogner, the court ordered that Richardson pay child support in the amount of $629.68 per month, provide health insurance for Shae, pay one half of other reasonable and necessary medical, dental, optical and pharmaceutical expenses and one-half of Shea’s post-secondary education expenses. Additionally, the court awarded legal and physical custody of Shae to Stogner, subject to reasonable visitation rights of Richardson. Following this ruling, Richardson appealed.

ANALYSIS

¶ 5. Our standard of review concerning questions of personal and subject matter jurisdiction is de novo. Patriot Commer. Leasing Co. v. Jerry Enis Motors, Inc., 928 So.2d 856(¶ 22) (Miss.2006).

I. WHETHER THE CHANCERY COURT OF WALTHALL COUNTY HAD PERSONAL JURISDICTION OVER RICHARDSON SUFFICIENT TO ENTER THE CHILD SUPPORT AWARD.

¶ 6. Richardson argues that the order awarding child support issued by the trial court is void as it lacked personal jurisdiction over him. In support, Richardson cites Scaife v. Scaife, 880 So.2d 1089 (Miss.Ct.App.2004) and Gowdey v. Gowdey, 825 So.2d 67 (Miss.Ct.App.2002). However, both cases are distinguishable from the facts before us. In Scaife, it was argued that the non-resident respondent in a child support action entered a general appearance by filing an answer without contesting personal jurisdiction. Scaife, 880 So.2d at (¶ 20). However, as a result of the respondent filing an amended answer which raised the issue of jurisdiction, this Court held that no general appearance was made as the defense related back to the filing of the original answer. Id. at (¶ 23). Similarly, in Gowdey, which also involved a non-resident respondent, though this Court decided the ease on the basis of a lack of subject matter jurisdiction, the underlying facts of Gowdey show that the respondent filed a motion for continuance along with a response contesting jurisdiction. Gowdey, 825 So.2d at (¶¶ 1, 10). The facts of the case at hand show that Richardson’s counsel agreed to an order setting the case for trial prior to his filing of a motion to dismiss. As such, the precise issue before us is, in a Rule 81 matter, whether agreeing to an order setting the case for trial acts as a general appearance or otherwise waives the defense of lack of personal jurisdiction.

¶ 7. In order for a judgment imposing a duty to pay child support to be valid, the issuing court must have jurisdiction over the person of the defendant. Department of Human Servs. v. Shelnut, 772 So.2d 1041(¶ 10) (Miss.2000) (citing Hamm v. Hall, 693 So.2d 906, 909 (Miss.1997)). As this domestic relations matter originated in Louisana, the Uniform Interstate Family Support Act (UIFSA), codified in sections 93-25-1 through 93-25-117 of the Mississippi Code Annotated, controls. Within the confines of the UIFSA, section 93-25-9 provides the basis for personal jurisdiction over a non-resident, and states as follows:

In a proceeding to establish or enforce a support order or to determine parentage, a tribunal of this state may exercise personal jurisdiction over a nonresident individual or the individual’s guardian or conservator if:
(a) The individual is personally served with process within this state;
(b) The individual submits to the jurisdiction of this state by consent, by entering a general appearance or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;
(c) The individual resided with the child in this state;
(d) The individual resided in this state and provided prenatal expenses or support for the child;
(e) The child resides in this state as a result of the acts or directives of the individual;
(f) The individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse;
(g) The individual asserted parentage as provided by law; or
(h) There is any other basis consistent with the Constitutions of this state and the United States for the exercise of personal jurisdiction. Unless Section 93-25-101 or 93-25-
107 applies, the bases of personal jurisdiction set forth in this section may not be used to acquire jurisdiction for a tribunal of this state to modify a child support order issued by a tribunal of another state.

Miss.Code Ann. § 93-25-9 (Rev.2004).

¶ 8. In the case sub judice, the parties were residents of Louisiana at the time of marriage, conception of their child and at the time of divorce. While Stogner would eventually relocate to Mississippi, Richardson would remain in Louisiana and, as indicated in the record, had no contacts with the State of Mississippi. In fact, there is nothing in the record to indicate that Richardson has ever in any way entered the State of Mississippi. Though he was personally served with a Rule 81 summons at his place of employment in Louisiana, that alone does not impart a Mississippi court with personal jurisdiction over him. Additionally, none of the paragraphs of section 93-25-9 would grant a court personal jurisdiction over Richardson with the possible exception of paragraph (b). Therefore, we must determine if Richardson “submitted] to the jurisdiction of this state by consent, by entering a general appearance or by filing a responsive document having the effect of waiving any contest to personal jurisdiction.”

¶ 9. In denying Richardson’s motion to dismiss, the trial court indicated that it obtained personal jurisdiction over him when his counsel agreed to an order setting the case for trial. Rule 12(h) of the Mississippi Rules of Civil Procedure states that the defense of lack of personal jurisdiction is waived “(A) if omitted from a motion [made under Rule 12] .... or (B) if it is neither made by a motion under this rule nor included in a responsive pleading ...” M.R.C.P. 12(h). However, if no responsive pleading is required, any defense in law or fact may be asserted at trial. M.R.C.P 12(b). In child support actions, Rule 81 instructs that no answer is required, absent a request by the court. M.R.C.P. 81(d)(1), (4). This has been interpreted to mean that an affirmative defense is not waived, and may be raised at trial, even if absent from a responsive pleading as no responsive pleading is required. Miss. Dep’t of Human Servs. v. Guidry, 830 So.2d 628(¶23) (Miss.2002). As such, in the context of a Rule 81 matter, we cannot say that the lone action of agreeing to an order setting the case for trial acts as a general appearance or otherwise waives the defense that the court lacks personal jurisdiction. Pursuant to Rules 12(b) and 81(d), Richardson could have raised the defense of lack of personal jurisdiction for the first time at trial. Therefore, the act of agreeing to set the case for trial, without speaking to the merits of the matter (such as setting temporary child support and custody within the order), is not a general appearance for the purpose of exercising personal jurisdiction over Richardson. Therefore, the trial court did not have personal jurisdiction over Richardson for the purpose of establishing child support.

II. WHETHER THE CHANCERY COURT HAD SUBJECT MATTER JURISDICTION TO ENTER THE CHILD SUPPORT AWARD.

A. CHILD SUPPORT

¶ 10. In his November 2000 complaint for divorce, Richardson requested a determination of child support and child custody. He and Stogner would subsequently come to an agreement on those issues and inform the Louisiana court of their “consent judgment” detailing the specifics they agreed upon concerning child support, child custody and other issues. However, through an oversight by Richardson’s then counsel, this judgment was never presented to the court for formal ratification until February of 2006. It appears that the parties thought the consent judgment had in fact been entered by the Louisiana district court in 2001 as they abided by its terms until Stogner initiated her Mississippi action. Richardson argues that his initial request for a determination of the issues placed continuing and exclusive subject matter jurisdiction over the matter with Louisiana courts.

¶ 11. So long as Louisiana remains the residence of the obligor, a tribunal of that state issuing a support order consistent with its laws retains continuing and exclusive jurisdiction over a child support order. La. Child Code Ann art. 1302.5 (2007). In Louisiana, an action is deemed abandoned if no steps are taken in its prosecution or defense for a period of three years. La. Code Civ. Proc. Ann. A(l) 561 (2007). However, article 561 “is not designed to dismiss actions on mere technicalities.” Benjamin-Jenkins v. Lawson, 781 So.2d 893, 895 (La.Ct.App.2001). In Richardson’s motion to enter the consent judgment filed with the Washington Parish court on February 7, 2006, he explained that the parties were granted a divorce in February of 2001, but the consent judgment detailing their agreement as to child support and custody was never filed with the court. Nevertheless, Richardson’s motion was granted and the consent judgment was signed by the court on February 7, 2006. Implicit in the court’s granting of the motion was a determination by the court that the action had not been abandoned despite the delay. The record before us contains no evidence that Stogner appealed or otherwise questioned this determination in Louisiana. Therefore, from November 2001, when Richardson filed for divorce and requested an adjudication of child support and custody, to February 7, 2006, when the Washington Parish court entered the consent judgment, there was an active request for a determination of child support and custody between the parties in Louisiana.

¶ 12. In a case such as this, in order for a Mississippi court to obtain subject matter jurisdiction over the establishment of child support, Mississippi Code Annotated section 93-25-15 states, in pertinent part:

(1) A tribunal of this state may exercise jurisdiction to establish a support order if the petition or comparable pleading is filed after a petition or comparable pleading is filed in another state only if:
(a) The petition or comparable pleading in this state is filed before the expiration of the time allowed in the other state for filing a responsive pleading challenging the exercise of jurisdiction by the other state;
(b) The contesting party timely challenges the exercise of jurisdiction in the other state; and
(c) If relevant, this state is the home state of the child.

Miss.Code Ann. § 93-25-15 (Rev.2004). It is clear from the record that Stogner never challenged the jurisdiction of the Louisiana courts to establish child support. Therefore, the Chancery Court of Walthall County did not have subject matter jurisdiction needed in order to establish a support order. Additionally, pursuant to article 1302.5 of the Louisiana Children’s Code, noted above, when the Washington Parish court finally entered the consent judgment on February 7, 2006, it obtained continuing and exclusive jurisdiction over the matter.

B. CHILD CUSTODY

¶ 13. Our Uniform Child Custody Jurisdiction and Enforcement Act, section 93-27-206 states, in pertinent part:

Except as otherwise provided in Section 93-27-204, a court of this state may not exercise its jurisdiction under this act if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under Section 93-27-207.

Miss.Code Ann. § 93-27-206(1) (Rev.2004). Under Louisiana’s Uniform Child Custody Jurisdiction Law, a Louisiana “court ... which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if ... [Louisiana] is the home state of the child at the time of commencement of the proeeeding[.]” La. Rev.Stat. 1702 A(l) The initial pleading requesting a determination of child custody was filed in Louisiana in November of 2001. As discussed supra, while there was a five-year delay from the initial filing and an adjudication of child custody, the action was not abandoned or otherwise terminated. As Louisiana was the home state of the parties’ child at the time of commencement of the Louisiana action, the Louisiana court had jurisdiction to decide the matter. As such, pursuant to section 93-27-206, the Chancery Court of Walthall County did not have subject matter jurisdiction to decide the issue.

¶ 14. THE JUDGMENT OF THE CHANCERY COURT OF WALTHALL COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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


text:
    Tommie Lee WHITE, Sr., Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00721-COA.
    Court of Appeals of Mississippi.
    May 29, 2007.

      Belinda J. Stevens, Jackson, attorney for appellant.
    Office of the Attorney General by Desh-un Terrell Martin, attorney for appellee.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

STATEMENT OF THE CASE

¶ 1. On November 13, 2002, there was an altercation between Tommie Lee White, Sr. and Lloyd Jones at the home of Geraldine Shaffer that resulted in the stabbing of Jones, and subsequent arrest of White. Following a trial, White was found guilty of aggravated assault and sentenced to twenty years in the custody of the Mississippi Department of Corrections. After the trial court denied his motion for new trial, White brought this appeal. He raises the following issues:

I. THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
II. WHETHER THE STATE COMMITTED REVERSIBLE ERROR DURING ITS CLOSING ARGUMENT BY ARGUING FACTS NOT IN EVIDENCE AND WITH IMPROPER REMARKS THAT APPEALED TO THE BIAS AND PREJUDICE OF THE JURORS.
III.WHETHER THE CUMULATIVE EFFECT OF THE ABOVE ERRORS DENIED THE APPELLANT A FUNDAMENTALLY FAIR TRIAL.

Finding no error, we affirm.

STATEMENT OF THE FACTS

¶ 2. Ed Warren, police chief of Bentonia at the time, responded to a complaint of domestic violence at Shaffer’s house on November 13, 2002. Warren testified that White was living with Shaffer at this time and Jones used to rent the garage apartment behind Shaffer’s house. Upon arriving, he discovered that Shaffer was the only individual still present and that she had bruises on her face. Warren testified that after questioning her regarding the dispute and her injuries, his only suspect was White. Further, he stated that after walking through the house he saw that the bed was broken and found a broken radio and a knife with blood covering its blade. Warren then called the Yazoo County Sheriffs Department for assistance.

¶ 3. Maurice Shaffer, a patrolman with the Yazoo County Sheriffs Department at the time of the incident, arrived and began to inspect the scene and collect evidence. He noted that Ms. Shaffer was the only individual present, other than law enforcement, when he arrived. He testified that he also spoke with Ms. Shaffer when he arrived and, as a result, identified White as a suspect. He then identified pictures he took during his investigation. These included a picture of a radio used in the scuffle, pictures of the bruises on Ms. Shaffer’s face and a picture of the knife used. Shaffer then testified that he collected the knife from Ms. Shaffer’s home and packaged it with a description of “one white-handled Dexter Russell knife with a five-inch blade.” When he examined the knife during trial he testified that there appeared to be dried blood on the blade, but would later testify during cross-examination that the knife was never tested for blood or fingerprints.

¶4. Upon completing his initial investigation at Ms. Shaffer’s home and learning that Jones had been transported to the University Medical Center in Jackson for treatment, Deputy Shaffer visited Jones at UMC and questioned him regarding the assault. Deputy Shaffer testified that before he left, however, White returned to Ms. Shaffer’s home and was arrested. Deputy Shaffer testified that Jones told him White came into the house and hit him in the head with the radio and attempted to strike him with a broom handle. Deputy Shaffer further stated that Jones told him White went to the kitchen to get a knife and exclaimed that he was going to kill Jones. Lastly, Jones, according to Deputy Shaffer’s testimony, stated he and White fought and Jones wrestled him to the bed having his finger cut and being stabbed in the side in the process. Pictures of each wound were identified by Deputy Shaffer during trial. Deputy Shaffer would also testify that he found blood on the bed, kitchen counter, radio, a door frame, a chair and a pair of pants.

¶ 5. At trial, when asked who stabbed him, Jones testified that it was White. Jones testified that he was renting from Ms. Shaffer in November of 2002. He stated that when he first went into the house, White was in bed. He continued that he was in the kitchen when White kicked in the door and stated, “I tried to kill you one time.... I’m going to kill you this time.” Jones testified that White hit and pushed Ms. Shaffer against the wall then began attacking him. Jones continued that he eventually overpowered White and threw him on a bed, but not before White stabbed him while he was coming through the hall. Jones testified that once he escaped, an ambulance took him to UMC where he was informed that one of his lungs collapsed. He elaborated that he is still having trouble because of it.

¶ 6. Though not admitted as an exhibit, during cross-examination of Jones, defense counsel made reference to a police report drafted by Deputy Shaffer. The report stated that Jones was lying in bed when White stabbed him; however, Jones testified he never said that. Additionally, defense counsel asked whether the report was correct that Jones told Deputy Shaffer that he was hit with a radio and a stick. Jones responded that he was not hit with either, but explained that White did forcefully take a radio from his possession.

¶ 7. Ms. Shaffer testified that no one was staying at her house at the time of the altercation, but that White did stay there at one time and Jones was just visiting. She stated she never spoke to Deputy Shaffer, did not remember having photographs of her bruises taken, did not have a radio at the time of the incident and did not see the fight. She explained that she was in the living room when the fight took place and in the bedroom. On cross-examination, the State questioned Ms. Shaffer about White assaulting her in an attempt to alter her testimony. She testified that White did hit her and left bruises on her legs, but not because of her testimony and not the night of the fight. However, after being assured that she was safe, Ms. Shaffer testified that White did stab Jones. Finally, on redirect Ms. Shaffer again stated that she did not see the fight.

¶ 8. White was the final individual to testify. He stated that when he came home Jones was waiting for him. According to his testimony, after being informed by Ms. Shaffer that she asked Jones to leave but he refused, he told Jones to leave. White testified that at this point he hit Jones with a radio from the dresser when Jones retrieved a knife from his pocket. Jones then fell back on the bed, breaking it, and, after pushing White back, ran out of the house through the kitchen. White explained that Ms. Shaffer was standing behind the kitchen door and as Jones exited the kitchen he swung the door open and it hit her. He then testified that he stayed at the house until Warren arrived, at which time he spoke with him. When asked about the bruises on Ms. Shaffer’s legs, White explained that they were not a result of any attempted intimidation, but that he unintentionally kicked her during Christmas.

PROCEDURAL HISTORY

¶ 9. White was indicted on May 28, 2004, by the grand jury of Yazoo County of aggravated assault in violation of Mississippi Code Annotated Section 97 — 3—7(2)(a) (Rev.2004). A trial was held on April 3, 2006, in the Circuit Court of Yazoo County and White was found guilty. White was subsequently sentenced to twenty years in the custody of the Mississippi Department of Corrections. White then filed his motion for a new trial or, in the alternative, for judgment notwithstanding the verdict raising the issue of whether the verdict of the jury was against the overwhelming weight of the evidence. His motion was denied and White subsequently appealed. Finding no error, we affirm.

ANALYSIS

I. A PRELIMINARY MATTER

¶ 10. White’s indictment charged him with a violation of section 97-3 — 7(2)(a) which states that “a person is guilty of aggravated assault if he ... attempts to cause serious bodily injury to another, or causes such injury purposefully, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.” Miss.Code Ann. § 97-3-7(2)(a) (Rev.2004). The language used in the indictment describing the crime states that White “unlawfully, willfully, feloniously, purposefully, and knowingly caused bodily injury to Lloyd Jones with a deadly weapon, to-wit: by stabbing him with a knife.” Such language is more in line with section 97-3-7(2)(b). “The primary purpose of an indictment is to notify an accused of the charges against him in order to allow him to prepare an adequate defense.” Brown v. State, 944 So.2d 103(¶ 8) (Miss.Ct.App.2006). Furthermore, “the incorrect citation of a statute number does not alone render an indictment defective, but rather is ‘mere surplusage’ and not prejudicial to a defendant.” Id. (quoting Evans v. State, 916 So.2d 550(¶ 6) (Miss.Ct.App.2005)). As such, this discrepancy is of no moment.

II. THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 11. White argues that “the State has failed to present sufficient and consistent evidence to establish beyond a reasonable doubt that the appellant committed the act of aggravated assault,” citing the “inconsistent statement of the alleged victim, the repudiation of the incident report and the lack of testing of any of the physical evidence.” In order to prove that White committed aggravated assault, the State was required to prove that White purposefully or knowingly caused bodily injury to Jones with a deadly weapon. Miss.Code Ann. § 97 — 3—7(2)(b) (Rev.2006). It is not entirely clear whether White challenges the weight of the evidence alone, or additionally attacks the sufficiency of the evidence. As such, we will address each issue independently.

A. Sufficiency of the Evidence

¶ 12. In reviewing the sufficiency of evidence, the supreme court has stated:

that in considering whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows “beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” However, this inquiry does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citations omitted) (emphasis in original). Should the facts and inferences considered in a challenge to the sufficiency of the evidence “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,” the proper remedy is for the appellate court to reverse and render. Edwards v. State, 469 So.2d 68, 70 (Miss.1985) (citing May v. State, 460 So.2d 778, 781 (Miss.1984)); see also Dycus v. State, 875 So.2d 140, 164 (Miss.2004). However, if a review of the evidence reveals that it is of such quality and weight that, “having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,” the evidence will be deemed to have been sufficient. Edwards, 469 So.2d at 70; see also Gibby v. State, 744 So.2d 244, 245 (Miss.1999).

Bush v. State, 895 So.2d 836(¶ 16) (Miss.2005). Without restating the testimony detailed above in its entirety, it is apparent that there were discrepancies in the testimony offered at trial. These include inconsistencies in Jones’s testimony from Deputy Shaffer’s report, testimony from Ms. Shaffer that she did not see the fight but nonetheless stated that White did stab Jones and inconsistencies in White’s version of events from the testimony of Ms. Shaffer, Deputy Shaffer, Warren and, of course, Jones. However, “the jury has the duty to determine the impeachment value of inconsistencies or contradictions as well as testimonial defects of perception, memory and sincerity.” Noe v. State, 616 So.2d 298, 303 (Miss.1993) (quoting Jones v. State, 381 So.2d 983, 989 (Miss.1980)); see also Curry v. State, 939 So.2d 785(¶ 23) (Miss.2006) (stating that “determining the credibility of witness testimony is squarely within the province of the fact-finder.”). Jones unequivocally stated that White stabbed him with a knife he retrieved from the kitchen. Ms. Shaffer echoed this statement, although she claims she never saw the fight. However, both Warren and Deputy Shaffer testified that after speaking with Ms. Shaffer at her home immediately after the fight they came to the conclusion that White was the only suspect. After viewing this evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Therefore, this issue is without merit.

B. Weight of the Evidence

¶ 13. The supreme court has recently reiterated the standard of review this Court employs when considering whether a verdict was against the weight of the evidence as follows:

When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Herring v. State, 691 So.2d 948, 957 (Miss.1997). We have stated that on a motion for new trial, the court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (Miss.2000). However, the evidence should be weighed in the light most favorable to the verdict. Herring, 691 So.2d at 957. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, “unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict.” McQueen v. State, 423 So.2d 800, 803 (Miss.1982). Rather, as the “thirteenth juror,” the court simply disagrees with the jury’s resolution of the conflicting testimony. Id. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Id. Instead, the proper remedy is to grant a new trial.

Bush, 895 So.2d at (¶ 18).

¶ 14. Viewing the evidence and testimony detailed above in a light most favorable to the verdict, we cannot say that to allow it to stand would sanction an unconscionable injustice.

III. WHETHER THE STATE COMMITTED REVERSIBLE ERROR DURING ITS CLOSING ARGUMENT BY ARGUING FACTS NOT IN EVIDENCE AND WITH IMPROPER REMARKS THAT APPEALED TO THE BIAS AND PREJUDICE OF THE JURORS.

¶ 15. It has been established “that to preserve an objection to alleged improper remarks by counsel during closing argument, the complaining party must not only make a contemporaneous and specific objection to the remarks, but must also obtain a definitive ruling from the trial court on his objection and must request corrective action.” Moffett v. State, 938 So.2d 321(¶ 22) (Miss.Ct.App.2006) (quoting Rials v. Duckworth, 822 So.2d 283, 287(¶ 22) (Miss.2002)). White’s counsel neither made an objection during the duration of the State’s closing, nor raised this issue in his motion for new trial. As a result, this issue is waived for appeal.

IV. WHETHER THE CUMULATIVE EFFECT OF THE ABOVE ERRORS DENIED THE APPELLANT A FUNDAMENTALLY FAIR TRIAL.

¶ 16. In White’s final issue, he argues that the cumulative effect of the supposed errors he raised warrants reversal of his conviction. As was the case with the previous issue, this issue was never raised before the trial court. As such, the issue cannot now be raised on appeal. Gibson v. State, 731 So.2d 1087(¶30) (Miss.1998); Price v. State, 749 So.2d 1188(¶ 31) (Miss.Ct.App.1999).

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

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


author: CARLTON, J.,

text:
    Tequelia T. THOMAS, Appellant v. FIVE COUNTY CHILD DEVELOPMENT PROGRAM, INC. and Commerce and Industry Insurance Company, Appellees.
    No. 2006-WC-00121-COA.
    Court of Appeals of Mississippi.
    May 29, 2007.

      Sorie S. Tarawally, Jackson, attorney for appellant.
    Bryan Gray Bridges, Ridgeland, attorney for appellees.
    Before LEE, P.J., BARNES and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. This case arises from the Circuit Court of Warren County’s dismissal of Tequelia Thomas’s appeal for failure to file a brief. The appeal was taken from a decision of the Mississippi Workers’ Compensation Commission which affirmed the decision of an administrative law judge denying Thomas’s claim for worker’s compensation benefits. Aggrieved by the circuit court’s dismissal, Thomas appeals to this Court challenging the circuit court’s dismissal of her appeal as well as the merits of the Commission’s decision. We find that the circuit court erred in dismissing Thomas’s appeal; therefore, we reverse and remand without reaching the merits of the Commission’s decision.

FACTS

¶ 2. Thomas began working with Five County Child Development Program, Inc. in June 2003 as an operator/driver, providing transportation services for clients and their children to and from work and childcare. On September 7, 2003, Thomas, while at her mother’s house, received a call to pick up a client. Thomas walked out of the house and attempted to enter her work vehicle but was confronted by an ex-boyfriend who highjacked the vehicle and ran over her with it.

¶ 3. On March 31, 2004, Thomas filed a worker’s compensation claim. Her employer, Five County Child Development Program, Inc., and carrier, Commerce and Industry Insurance Company (collectively “Five County”), denied compensability. A hearing was held before an administrative law judge of the Mississippi Workers’ Compensation Commission, who, by order dated January 14, 2005, denied Thomas’s claim. Aggrieved by the administrative law judge’s decision, Thomas perfected an appeal to the Commission, which, after a hearing, affirmed the findings of the administrative law judge.

¶ 4. Thomas then perfected an appeal of the Commission’s decision to the Circuit Court of Warren County, filing a notice of appeal on July 7, 2005. The Commission forwarded its transmittal letter to the circuit court on July, 25, 2005. Two days later, counsel for Thomas received a phone message from the clerk’s office that a filing fee and a case cover sheet were needed before the case could be docketed. Thomas’s attorney called the clerk to voice his belief that no filing fee is required in an appeal from an administrative agency. Unable to convince the clerk, counsel for Thomas sent an e-mail to the clerk’s office on August 3, 2005, citing case authority to support his contention. The next day, counsel for Thomas was at the Warren County Circuit Court for an unrelated matter and spoke with the clerk’s office. He inquired if the case had been docketed and received a response that the clerk would have to consult with an attorney and get back with him. The record reflects no further contact between Thomas’s attorney and the clerk until September 16, 2005, when counsel for Thomas sent a copy of the cover sheet and a letter to the office of the clerk asking them to docket the case. Counsel for Thomas, waiting to receive notice of docketing and a briefing schedule from the clerk, filed no brief for the appeal.

¶ 5. On November 8, 2005, Five County filed a motion to dismiss for Thomas’s failure to file a brief. Upon receipt of this motion, counsel for Thomas again called the clerk to inquire regarding the docketing of the case and the briefing schedule. As a result of this conversation, the clerk then mailed Thomas’s attorney a copy of the Commission’s transmittal letter postmarked November 18, 2005. Counsel for Thomas still did not file a brief in the circuit court. After a hearing, Five County’s motion was granted by the Circuit Court of Warren County by order dated December 22, 2005. Aggrieved by the circuit court’s decision, Thomas appeals.

STANDARD OF REVIEW

¶ 6. Ordinarily, this Court reviews the decision of a circuit court regarding an agency action under the same standard of review that the lower court was required to apply. The order of an administrative agency will only be overturned where this Court determines that it “1) was unsupported by substantial evidence, 2) was arbitrary or capricious, 3) was beyond the power of the administrative agency to make, or 4) violated some statutory or constitutional right of the complaining party.” Miss. Sierra Club, Inc. v. Miss. Dep’t of Envtl. Quality, 819 So.2d 515, 519(15) (Miss.2002) (citation omitted).

¶ 7. However, in the instant case, the appellant is challenging the circuit court’s granting of a motion to dismiss her case. “The decision to grant or deny a motion to dismiss is in the discretion of the trial court and will not be reversed unless that discretion is abused.” Williams v. Fornett, 906 So.2d 810, 812(2) (Miss.Ct.App.2004) (citing Roebuck v. City of Aberdeen, 671 So.2d 49, 51 (Miss.1996)).

DISCUSSION

¶ 8. Thomas argues that the circuit court’s dismissal of her appeal for failure to file a brief was an abuse of discretion. She claims that the clerk’s office at the Warren County Circuit Court delayed in docketing the case and failed to provide notice to the parties that the record had been received by the circuit court. Thomas contends that, due to the clerk’s failure to give notice, the time for filing briefs did not begin to run, and the obligation to brief did not arise. Thomas further claims that the circuit court had a duty to rule on the record notwithstanding her failure to file a brief.

¶ 9. Thomas argues alternatively, that if the obligation to brief had come to fruition and the time to file a brief had passed, she was not given prior notice of any deficiencies and an opportunity to cure any deficiencies and that the case should therefore be reversed.

¶ 10. “[A] circuit court [sits] as an appellate court in reviewing the final order of the Workers’ Compensation Commission.” Zurich Am. Ins. Co. v. Beasley Contr. Co., 779 So.2d 1132, 1134(8) (Miss.Ct.App.2000). Uniform Circuit and County Court Rule 5.06 provides that “[bjriefs filed in an appeal on the record must conform to the practice of the Supreme Court, including form, time of filing and service. ... The consequences of failure to timely file a brief will be the same as in the Supreme Court.” URCCC 5.06.

¶ 11. The practice of the Supreme Court as it pertains to the filing of briefs is set forth in Mississippi Rule of Appellate Procedure 31, which states:

(a) Notice of Briefing Schedule. Immediately upon filing of the record in the office of the clerk of the Supreme Court, the clerk shall notify counsel of the filing of the record. However, failure of the clerk to give, or of a party to receive, notice of the filing of the record shall not excuse any delay in filing briefs.
(b) Time for Filing and Service of Briefs. The appellant shall serve and file the appellant’s brief within 10 days after the date on which the record is filed.

M.R.A.P. Rule 31(a)(b) (emphasis added).

¶ 12. Thomas was delinquent in failing to file a brief with the circuit court. Rule 31(b) mandates that a brief be filed within forty days of the filing of the record in the circuit court. Rule 31(a) provides that the clerk’s failure to provide notice of the receipt of the record or a party’s failure to receive such notice does not excuse an untimely filed brief. The instant case presents a unique circumstance where the clerk refused to docket the appeal. The record reflects that the commission forwarded the record to the circuit clerk’s office for filing on July 25, 2005. However, it was not until six weeks later that the clerk, after reviewing the authority cited by Thomas’s counsel and consulting with an attorney, decided to docket the case. Ultimately, the case was docketed in the circuit court on September 19, 2005. Thus, Thomas had forty days therefrom to timely file a brief pursuant to M.R.A.P. 31(b). No brief was ever filed by Thomas nor was a motion for extension or enlargement of time. Accordingly, we find that the time for filing a brief began to run when the circuit clerk filed the record, and we reject Thomas’s contentions that the filing of a brief is not mandatory, and that the time to file a brief did not begin to run.

¶ 13. Notwithstanding, Thomas’s failure to file a brief, we find that, pursuant to Mississippi Rule of Appellate Procedure 2(a)(2), Thomas was entitled to written notice from the clerk of the deficiencies in the appeal and a fourteen day period in which to cure any deficiencies.

¶ 14. As stated above, the consequences of failure to file a brief in the circuit court are the same as in the supreme court. Rule 31(d) sets forth the consequences of the failure to file a brief in the supreme court. Rule 31(d) provides that “[i]f an appellant fails to file the appellant’s brief within the time provided by this rule or within the time as extended, the appeal may be dismissed on motion of appellee or on the Supreme Court’s oum motion as provided in Rule 2. ...” Rule 2, as referenced in Rule 31(d), provides in pertinent part as follows:

(a) Dismissal of Appeal
(1) Mandatory Dismissal. An appeal shall be dismissed if the notice of appeal was not timely filed pursuant to Rules 4 or 5.
(2) Discretionary Dismissal. An appeal may be dismissed upon motion of a party or on motion of the appropriate appellate court (i) when the court determines that there is an obvious failure to prosecute an appeal; or (ii) when a party fails to comply substantially with these rules. When either court, on its on motion or on motion of a party, determines that dismissal may he warranted under this Rule 2(a)(2), the clerk of the Supreme Court shall give written notice to the party in default, apprising the party of the nature of the deficiency. If the party in default fails to correct the deficiency within fourteen (Ilf) days after the notification, the appeal shall he dismissed by the clerk of the Supreme Court.

M.R.A.P. 2(a)(1) and (2) (emphasis added).

¶ 15. Five County argues that Thomas’s appeal finds no refuge under the provisions of Rule 2. They contend that the filing of their motion to dismiss Thomas’s appeal was sufficient to satisfy the notice requirement of Rule 2. We disagree.

¶ 16. In Van Meter v. Alford, 774 So.2d 430, 432(4) (Miss.2000), our supreme court specifically held that “[a] motion to dismiss cannot be substituted for an official notice of deficiencies from the court clerk.” In Van Meter, the appellant perfected an appeal by timely filing a notice of appeal. Appellee filed, and the circuit court granted, a motion to dismiss for the appellant’s failure to comply in several ways with requirements of appellate procedure. Id. at 431(2). On appeal, the supreme court held that the circuit court improperly dismissed the appeal by failing to comply with Rule 2(a)(2). Id. at 432 (¶ 3-5). The court stated that “Rule 2(a)(2) mandates that, after a motion to dismiss has been filed, the court clerk (the circuit clerk in this instance) officially notify an appellant of deficiencies in his appeal and that the appellant be given fourteen days therefrom to correct any deficiencies.” Id. at (3). The case was remanded with instructions that proper notice and a fourteen day period be given to the appellant to cure any deficiencies. Id. at (5).

¶ 17. Additionally, we find that a plain reading of the Rules requires that, as a prerequisite for dismissal of an appeal for failure to file a brief, the defaulting party must be provided written notice from the clerk and a fourteen day period to cure. Rule 2(a)(2) employs language which mandates notice before dismissal, (“the clerk of the Supreme Court shall give written notice to the party in default _” (emphasis added)). The comment to Rule 2 defines what constitutes proper notice under the rule stating as follows:

Where dismissal appears warranted for [any reason other than failure to timely file a notice of appeal], the rule provides for the clerk to give written notice of the deficiency to counsel for the defaulting party. Specifically, the clerk will notify counsel that the party is in default in some manner and has 14 days to correct the noted deficiency.

Rule 2 cmt.

¶ 18. In accordance with the above-cited authority, we find that the circuit court erred in dismissing Thomas’s appeal without first giving her written notice from the clerk apprising her of the deficiencies in her appeal and giving her a fourteen day window in which to correct any deficiencies. This case will be remanded to the Circuit Court of Warren County with instructions that proper notice and an opportunity to cure be given to Thomas.

¶ 19. Additionally, we find that the circumstances of the instant ease warrant that the cost of this appeal be assessed equally between the parties. While we recognize that the circuit court clerk was partly responsible for the delay, we find that the actions and/or inactions of Thomas’s counsel departed from our rules of procedure, delayed the administration of the case at the trial level, and resulted in the filing of this appeal, in which Five County, through no fault of their own, was burdened to participate. For these reasons we depart from our normal practice of assessing costs to the losing party and split them equally between the parties.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED IN EQUAL PARTS TO THE APPELLANT AND THE APPEL-LEES.

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

      . The Van Meter court also found that while dismissal was improper, the consideration of lesser sanctions was appropriate. Id. at (¶ 7-8). The court reasoned that:
      Even though Van Meter did not receive actual notice from the court clerk, Alford’s motion to dismiss provided constructive notice that his appeal was subject to dismissal. The administration of justice was hindered when Van Meter, who was under a duty to insure that proper appellate procedure was complied with, sat back and waited for the court to give him actual notice of something of which he already had constructive notice and something he had a duty to know. Alford has a right to a speedy disposition of this case.

        Id. at 432-33(¶ 8).


author: ISHEE, J„

text:
    William G. DAVIS a/k/a Willie Davis, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-01350-COA.
    Court of Appeals of Mississippi.
    May 29, 2007.

      William G. Davis, Appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, Attorney for Appellee.
    Before LEE, P.J., BARNES, ISHEE and CARLTON, JJ.
   ISHEE, J„

for the Court.

¶ 1. On February 1, 1999, William Davis pled guilty in the Oktibbeha County Circuit Court to Count I the sale of cocaine in exchange for the dismissal of Counts II through VIII. The court sentenced him, on April 22, 1999, to twenty-five years in the custody of the Mississippi Department of Corrections with five years of post-release supervision. Davis filed an amended motion for post-conviction relief on January 25, 2006, which the trial court found to be time-barred. Aggrieved, Davis appeals. Finding no error, we affirm.

FACTS

¶ 2. Willie Davis was indicted by the grand jury of Oktibbeha County for eight counts of sale of cocaine. On April 22, 1999, Davis pled guilty to Count I of sale of cocaine, and Counts II through VIII were passed to the files. Davis was sentenced, according to a plea agreement, to twenty-five years in the custody of the Mississippi Department of Corrections with five years of post-release supervision.

¶ 3. On January 25, 2006, Davis filed an amended motion for post-conviction relief. The trial court denied Davis’s motion as being time barred by the statute of limitations that requires a motion for post-conviction relief be filed within three years of entry of a guilty plea. The order denying the motion also stated that the motion met none of the exceptions that would allow it to be heard outside of that time period. Davis asserts the following issues on appeal:

I. Davis’s attorney coerced him into pleading guilty; therefore, his plea was involuntary.
II. Davis received ineffective assistance of counsel.
III. The indictment was defective and improper.
IV. There was misconduct on the part of the state officials.

STANDARD OF REVIEW

¶ 4. We will not reverse the denial of a motion for post-conviction relief by a trial court absent a finding that the trial court’s ruling was clearly erroneous. Kirksey v. State, 728 So.2d 565, 567(¶8) (Miss.1999).

ISSUES AND ANALYSIS

¶ 5. Section 99-39-5(2) of Mississippi Code Annotated (Rev.2000) provides that a prisoner has three years following entry of judgment on a guilty plea to file a motion for post-conviction relief. Excepted from the three-year statute of limitations are situations in which the prisoner can show an intervening decision of the Supreme Court of Mississippi or of the United States that adversely affects his conviction or sentence or when the prisoner has new evidence that was not reasonably discoverable at trial and that would have caused a different outcome at the trial. Miss.Code Ann. § 99-39-5(2).

¶ 6. A motion for post-conviction relief must be filed within three years following the entry of judgment of conviction. Johnson v. State, 923 So.2d 237, 238(¶ 8) (Miss.Ct.App.2006). Failure to file within the three-year statute of limitations procedurally bars appeal of the dismissal of the motion. Id. The statute of limitations may be waived when a fundamental constitutional right is implicated. McGleachie v. State, 840 So.2d 108, 110(¶ 12) (Miss.Ct.App.2002) (citing Sneed v. State, 722 So.2d 1255, 1267(¶ 11) (Miss.1998)). “Errors affecting fundamental rights may be excepted from procedural bars which would otherwise prohibit their consideration.” Luckett v. State, 582 So.2d 428, 430 (Miss.1991) (citing Smith v. State, 477 So.2d 191, 195-96 (Miss.1985)). Merely raising a claim, however, is insufficient to surmount the procedural bar. Bevill v. State, 669 So.2d 14, 17 (Miss.1996). Lastly, the three-year statute of limitations applies to post-conviction relief claims based on a defective indictment, ineffective assistance of counsel, and the involuntariness of a guilty plea. Luckett, 582 So.2d at 429-30.

¶ 7. The issues presented by Davis in this motion for post-conviction relief are procedurally barred because he waited too long to file his motion. Since Davis pled guilty and was sentenced in April 1999, the three year statute of limitations means he had until April 2002 to file his motion. Instead, Davis filed his motion in January 2006, more than six years after he entered a guilty plea and was sentenced. Furthermore, the trial court found that none of the exceptions to the statute of limitations were applicable. We find that the trial court properly denied Davis’s motion for post-conviction relief as time-barred.

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

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


author: IRVING, J.,

text:
    Zavien T. BEAL, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KM-00345-COA.
    Court of Appeals of Mississippi.
    May 29, 2007.

      Aafram Yaphet Sellers, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Zavien Beal was convicted by the Jefferson County Justice Court of speeding and D.U.I. first offense (other substance) and was sentenced to pay a fine and serve a term of forty-eight hours in jail, with the forty-eight hours suspended upon payment of the fine. Aggrieved, Beal appealed his conviction for D.U.I. first offense to the Jefferson County Circuit Court, which reviewed the case de novo and also found Beal guilty of D.U.I. first offense. Thereafter, Beal appealed to this Court, asserting that insufficient evidence exists to convict him of D.U.I. Finding no error, we affirm.

FACTS

¶ 2. Beal was a student at Alcorn State University in 2005. On November 3, 2005, Beal left school and went to Natchez, Mississippi, some twenty-five miles or so away. After spending some time in Natchez, Beal left to return to Alcorn State when he was stopped by Officer Kenny Tarleton of the Mississippi Highway Safety Patrol. Officer Tarleton stopped Beal because Beal was traveling at eighty-seven miles per hour in a fifty-five-miles-per-hour zone. Officer Tarleton testified that as he approached the vehicle, he smelled a strong odor of burnt marijuana coming from it. Upon reaching the vehicle, Officer Tarleton testified that he observed a green leafy substance that appeared to be marijuana on Beal’s clothing.

¶ 3. Officer Tarleton stated that he then asked Beal why there was marijuana on his clothing. According to Officer Tarle-ton, Beal stated that he had smoked marijuana when he left Alcorn State and had smoked again before departing from Natchez. Officer Tarleton observed that Beal’s eyes “were bloodshot, red and very glazy.” Officer Tarleton also testified that Beal appeared to be very nervous throughout the encounter. Officer Tarleton admitted that he did not perform any field sobriety tests on Beal, nor did he take a sample of blood or urine for testing. Officer Tarleton stated that he did not do these things because Beal freely admitted that he had smoked marijuana before leaving Natchez, which was a relatively short distance away.

¶ 4. By contrast, Beal testified that there was no marijuana on his shirt. Rather, he claimed that there was a printed pattern on the shirt that might have been confusing. Beal admitted that he had smoked marijuana much earlier in the day, but denied that he had told Officer Tarleton that he had smoked marijuana immediately prior to leaving Natchez for school.

¶ 5. What is undisputed is that, during Beal’s stop, Officer Tarleton received a call requesting his assistance at an accident scene. Because Officer Tarleton was apparently the only officer on duty at the time, he issued a citation to Beal and left the scene to respond to the accident. At the circuit court appeal hearing, Officer Tarleton testified that he did not “allow” Beal to leave the scene, although he placed Beal’s keys on the trunk of the car and left the scene. Officer Tarleton testified that the stop was done approximately one hundred yards from the Alcorn State Campus, and further testified that he mentioned this fact to Beal at the scene. After Officer Tarleton left, Beal drove his car to school.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. When reviewing the sufficiency of the evidence supporting a conviction, we look at “whether the evidence shows ‘beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.’ ” Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). When reviewing the decision of a trial judge sitting without a jury, we give the judge “the same deference with regard to his findings as a chancellor, and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.” Johns v. State, 926 So.2d 188, 202(¶ 70) (Miss.2006) (quoting Chantey Music Pub., Inc. v. Malaco, Inc., 915 So.2d 1052, 1055(¶ 10) (Miss.2005)).

¶ 7. We find that the evidence is sufficient to sustain Beal’s conviction. At the scene, Officer Tarleton observed marijuana on Beal’s clothing, noted that Beal’s eyes were blood-shot, and remarked that Beal appeared to be particularly nervous. Furthermore, Officer Tarleton testified that Beal stated that he had smoked marijuana a short time before the stop. Clearly, this evidence is sufficient to sustain Beal’s conviction. Although Beal testified and gave a different account of events than Officer Tarleton, the court, as the finder of fact, was entitled to believe whatever testimony it found most credible. Curry v. State, 939 So.2d 785, 792(¶ 23) (Miss.2006). The evidence is such that a reasonable fact-finder could have found Beal guilty of first-offense D.U.I., and the court’s findings are supported by the evidence.

¶ 8. That Officer Tarleton allowed Beal to drive from the scene after Tarleton had charged Beal with first-offense D.U.I. does not vitiate the fact that sufficient evidence was presented at trial to under-gird Beal’s conviction for D.U.I. However, we take this opportunity to remind our law enforcement officers that, as announced by the Mississippi Supreme Court, it is improper for an officer to allow a motorist to continue to drive when the officer has determined that the motorist has been driving under the influence:

Operating a motor vehicle on a public highway while under the influence of intoxicants, although classified as a misdemeanor, differs in essential particulars from the usual “traffic violation.” Apart from the mortal danger to which it exposes others, the offender may not be given a “ticket,” and sent on his way. He must be detained and may not be allowed to drive away in his automobile. By force of circumstances possession must be taken by the officers of the automobile itself for the time being.

Hogan v. State, 235 So.2d 704, 705 (Miss.1970), (emphasis added).

¶ 9. As previously stated, regardless of Officer Tarleton’s handling of the situation, the evidence is sufficient to sustain Beal’s conviction. Nothing about the officer’s allowing Beal to drive away from the scene affects whether Beal was actually under the influence when he was stopped initially-

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF JEFFERSON COUNTY OF CONVICTION OF FIRST OFFENSE D.U.I. AND SENTENCE OF FORTY-EIGHT HOURS OF JAIL TIME, SUSPENDED UPON PAYMENT OF A $511.50 FINE, IS AFFIRMED. AT J; COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Beal has never appealed his conviction for speeding.


author: GRIFFIS, J.,

text:
    Xavier STEPP, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-02369-COA.
    Court of Appeals of Mississippi.
    May 29, 2007.

      Xavier Stepp, Appellant, pro se.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Xavier Stepp pled guilty to the sale of a controlled substance. The circuit court sentenced him to serve ten years, followed by five years on post release supervision. Stepp was also ordered to pay a $5,000 fine. Stepp filed a motion for post-conviction relief, which was denied. He appeals and argues his indictment was defective for failure to give notice of the crime charged. We find no error and affirm.

STANDARD OF REVIEW

¶ 2. A trial court’s denial of post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ANALYSIS

¶3. Stepp argues that the indictment was insufficient to charge him with a crime, because it did not give him sufficient notice of which dbug crime he was being charged. Specifically, he points to the fact that the subparagraph of the statute that he was charged with violating was not stated in the indictment. The State argues the error is waived by Stepp’s guilty plea and for failure to raise it below. In the alternative, the State responds that the indictment was sufficient, because it listed the specific controlled substance charged.

¶ 4. We find that Stepp raised this issue in his motion for post-conviction relief. Indeed, it was the second issue raised. However, the circuit court did not rule on this issue when it denied relief. Stepp again raised the issue in a motion for reconsideration, which was denied.

¶ 5. A guilty plea does not waive the failure of the indictment to charge a criminal offense or to state essential elements of the offense. Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989). We find that this issue was properly preserved for appeal.

¶ 6. As for the merits of the claim, the controlled substances statute prohibits different acts with regard to varying controlled substances. For example, Mississippi Code Annotated Sections 41-29-139(a)(1), (c), (g)(1) (Rev.2005) prohibit manufacture, possession, and trafficking of controlled substances. Section 41-29-139(a)(1) provides, “[e]xcept as authorized by this article, it is unlawful for any person knowingly or intentionally [t]o sell ... a controlled substance.” The remainder of the statute provides for different penalties for different controlled substances that are involved in the crime. For example:

In the case of controlled substances classified in ... Schedule II ... except thirty (30) grams or less of marihuana, and except a first offender ... with respect to less than one (1) kilogram of marihuana, such person may, upon conviction, be imprisoned for not more than thirty (30) years and shall be fined not less than Five Thousand Dollars ($5,000.00) nor more than One Million Dollars ($1,000,000.00), or both.

Miss.Code Ann. § 41-29-139(b)(l) (Rev. 2005).

¶ 7. Cocaine is a Schedule II controlled substance. Miss.Code Ann. § 41-29-115(A)(a)(4) (Rev.2005). Stepp’s indictment was titled, “SALE OF A CONTROLLED SUBSTANCE — COCAINE (§ 41-29-139).” The indictment charged that Stepp:

on or about the 23rd day of March, 2004, in [Lowndes County], did unlawfully, wilfully, and feloniously, knowingly and intentionally sell a controlled substance, to-wit: Cocaine, to James Stuart for and in consideration of money, in violation of MCA § 41-29-139; contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Mississippi.]

Essentially, he is charged with knowingly and intentionally selling cocaine in violation of Section 41-29-139. This is sufficient to notify Stepp that he was charged with the crime of knowingly and intentionally selling a Schedule II controlled substance under subparagraph (a)(1) and that he could be sentenced under subparagraph (b)(1). This issue has no merit.

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

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