author: ROBERTS, J., for the Court.

text:
    Randy HARIEL, Appellant, v. BILOXI HMA, INC., Biloxi Regional Medical Center and Carl Palumbo, M.D., Appellees.
    No. 2006-CA-00187-COA.
    Court of Appeals of Mississippi.
    Sept. 4, 2007.

      Jennifer P. Burkes, Gulfport, David W. Lambert, Mark Andrew Cliett, West Point, attorneys for appellant.
    Lynda Clower Carter, Mary Margaret Kuhlmann, Nicole Collins Huffman, Jackson, George F. Bloss, Gulfport, attorneys for appellees.
    Before LEE, P.J., IRVING, CHANDLER, and ROBERTS, JJ.
   ROBERTS, J., for the Court.

SUMMARY OF THE CASE

¶ 1. Randy Hariel underwent carpal tunnel surgery at Biloxi Regional Medical Center (BRMC). After Hariel woke up with unexplained burns on his leg, Hariel sued the attending surgeon, Dr. Carl Pa-lumbo, and BRMC for negligence.

¶ 2. After approximately a year, Dr. Pa-lumbo and BRMC filed separate motions for summary judgment because Hariel had not designated an expert witness. Hariel filed a successful motion for additional time pursuant to M.R.C.P. 56(f). The circuit court gave Hariel ninety days to complete discovery so Hariel could respond to Dr. Palumbo’s and BRMC’s motions for summary judgment.

¶ 3. When Hariel’s ninety-day extension expired without his designating an expert witness, Dr. Palumbo and BRMC scheduled their motions for hearing. Hariel filed an unsuccessful motion to continue the summary judgment hearing. Accordingly, the circuit court heard Dr. Palum-bo’s and BRMC’s motions for summary judgment. After the hearing, the circuit court requested proposed findings of fact and conclusions of law. Otherwise, the circuit court held the matter in abeyance.

¶ 4. Approximately a week later, Hariel filed an affidavit of an expert physician and another Rule 56(f) motion for extension of time. Subsequently, however, the circuit court granted both Dr. Palumbo’s and BRMC’s motions for summary judgment. Aggrieved, Hariel appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 5. On March 7, 2003, Randy Hariel underwent surgery at Biloxi Regional Medical Center in Biloxi, Mississippi. Dr. Carl Palumbo performed Hariel’s surgery. Hariel suffered from carpal tunnel syndrome in his right wrist and “right shoulder impingement syndrome with partial rotator cuff tear.” When Hariel woke up from surgery, he found that he had a “serious” burn to the inner portion of his left calf.

Hariel’s complaint

¶ 6. On March 8, 2004, Hariel sued Dr. Palumbo and BRMC. Hariel’s attorney, David Lambert, attached an affidavit to Hariel’s complaint and stated:

I have personally reviewed the facts alleged in the Complaint, but have not had the opportunity to have the medical records reviewed by an independent medical professional qualified to give expert testimony as to the standard of care or negligence because the records from the medical providers have only just been received.

Dr. Palumbo’s and BRMC’s response

¶ 7. On April 20, 2004, BRMC filed its answer and denied liability. Simultaneously, BRMC propounded interrogatories to Hariel. Among those interrogatories, BRMC requested that Hariel identify any expert witnesses he planned to call at trial. Shortly afterwards, Dr. Palumbo submitted his own answer and discovery requests, including a request that Hariel identify his experts.

Affidavit from Hariel’s attorney

¶ 8. Hariel did not respond by designating an expert in response to the interrogatories. Instead, on May 3, 2004, Hariel’s attorney filed an amended affidavit and included the following generalized and non-specific statement: “I ... have consulted with an independent expert who would be qualified to give expert testimony as to the standard of care or negligence and who I believe is knowledgeable in the relevant issues involved in this action.” Further, counsel for Hariel stated, “After reviewing the medical records, the independent consulting expert expressed an opinion that a breach of the standard of care occurred in this matter to result in Mr. Hariel’s injuries.”

Hariel’s response to interrogatories

¶ 9. Hariel responded to Dr. Palumbo’s interrogatories on June 10, 2004. However, he did not designate an expert witness. Rather, Hariel stated that he had “not yet determined the experts he expects to call at trial, but will timely supplement pursuant to Rule 26(b)(4) no later than the date specified in an Agreed Scheduling Order.” On June 21, 2004, Hariel responded to BRMC’s interrogatories in identical fashion. Assuming the record presently before us contains all the documents filed in this matter, nothing happened in this case for approximately nine months.

Dr. Palumbo’s and BRMC’s motions for summary judgment

¶ 10. On March 14, 2005, Dr. Palumbo filed a motion for summary judgment. Dr. Palumbo submitted that summary judgment was appropriate because Hariel had not designated an expert witness. Two weeks later, the circuit court entered an agreed order and gave Hariel until April 25, 2005, to respond to Dr. Palumbo’s motion for summary judgment. BRMC filed its own motion for summary judgment on April 6, 2005. Like Dr. Palumbo, BRMC based its motion for summary judgment on Hariel’s failure to designate an expert witness.

Hariel requests additional time

¶ 11. The record contains no indication that Hariel met his April 25, 2005, deadline to respond to Dr. Palumbo’s motion for summary judgment. In any event, on May 6, 2005, Hariel filed a M.R.C.P. 56(f) motion for extension of time to respond to Dr. Palumbo’s and BRMC’s motions for summary judgment. Hariel claimed that, because he did not know the source of his burn, it was necessary that he conduct additional discovery “to fully respond” to Dr. Palumbo’s and BRMC’s motions for summary judgment. Accordingly, Hariel requested that the circuit court overrule Dr. Palumbo’s and BRMC’s motions for summary judgment and that he be granted additional time pursuant to M.R.C.P. 56(f) to conduct discovery to ascertain the cause of his burn.

Hariel receives additional time

¶ 12. On May 16, 2005, counsel for both Dr. Palumbo and BRMC sent correspondence to Hariel’s attorney and expressed their willingness to allow Hariel a ninety-day extension to respond to their motions for summary judgment. Accordingly, on May 17, 2005, the circuit court granted Hariel’s motion for additional time. Pursuant to the circuit court’s order, Hariel received ninety days to conduct discovery. The order further set forth that, “After that time, [Hariel] will be permitted to respond to the Defendants’ Motion for Summary Judgment.” As such, the circuit court held Dr. Palumbo’s and BRMC’s motions for summary judgment in abeyance until the expiration of those ninety days.

Attempts to schedule depositions

¶ 13. Afterwards, the parties exchanged volleys of correspondence in an attempt to schedule depositions. On May 19, 2005, Hariel’s attorney sent a fax to BRMC’s attorney and said, “I will once again renew my requests for dates to depose your clients.” Four days later, BRMC’s attorney responded and asked Hariel’s attorney to identify specific individuals rather than “your clients.” On May 31, 2005, Hariel’s attorney faxed a letter to the lawyers for Dr. Palumbo and BRMC. By that letter, counsel for Hariel asked to depose “each and every person who was in any way assisted with Mr. Hariel’s surgery.” On June 13, 2005, BRMC’s attorney faxed Hariel’s attorney and identified those individuals who, to BRMC’s knowledge, assisted with Hariel’s surgery. BRMC’s attorney also proposed potential deposition dates for “July 5-8; July 20; and July 25-29.” The record contains no response from Hariel’s attorney.

¶ 14. On July 20, 2005, BRMC’s attorney confirmed that Dr. Palumbo’s deposition, as well as Hariel’s would take place on July 28th. Further, BRMC’s attorney noted that there were still no scheduled depositions of BRMC employees. BRMC’s attorney then tendered additional potential deposition dates for “August 5, 9, 10, and the week of August 15th.” Again, the record contains no response from Har-iel’s attorney. In any event, Hariel and Dr. Palumbo gave their depositions on July 28, 2005.

Hariel’s ninety-day extension expires

¶ 15. Hariel’s ninety-day extension to respond to Dr. Palumbo’s and BRMC’s motions for summary judgment expired on August 14, 2005. On August 17, 2005, counsel for BRMC faxed a letter to Har-iel’s lawyer and stated:

I spoke with Judge Terry’s Court Administrator and he is available to hear Defendants’ Motions for Summary Judgment on September 16th at 9 am in Biloxi. At your earliest convenience, please let me know your availability. If I do not hear from you by 5:00 p.m. on August 23, 2005, I will notice the hearing for September 16th.

(emphasis in original). One week later, counsel for BRMC mailed Hariel’s attorney a “re-notice of hearing” that the circuit court would conduct a hearing on Dr. Pa-lumbo’s and BRMC’s motions for summary judgment on September 16, 2005. However, on August 29, 2005, Hurricane Katrina struck the Mississippi Gulf Coast. As such, the hearing on Dr. Palumbo’s and BRCM’s motions for summary judgment was cancelled.

¶ 16. On October 7, 2005, counsel for BRMC sent a letter to Hariel’s attorney and stated that the circuit court was available to conduct the summary judgment hearing on October 21, 2005. On October 10, 2005, Hariel’s attorney faxed correspondence to BRMC’s attorney and said:

As you know, we filed a Rule 56(f) Motion in response to the Motions for Summary Judgment. We were granted additional time to complete discovery. We have not completed the necessary discovery to afford us an opportunity to respond to the Motions for Summary Judgment. Specifically, we have not yet deposed your clients. I was hesitant to continue to push for the depositions out of courtesy to you and your clients, all of whom I felt had been affected by Hurricane Katrina. It appears, however, that you and your clients are in a position to continue with the depositions.
We cannot agree to a hearing date until we have completed the necessary depositions. I suggest we agree to submit and [sic] Order to Judge Terry providing us and [sic] additional ninety (90) days to complete discovery, after which we can respond to the Motion for Summary Judgment. If you cannot agree, we will file an additional Motion and seek and [sic] Order.

¶ 17. Two days later, BRMC’s attorney faxed Hariel’s attorney a letter. Within that letter, BRMC’s attorney included a chronology of events regarding BRMC’s and Dr. Palumbo’s motions for summary judgment. BRMC’s attorney would not agree to another ninety-day extension based on the concepts that (a) she tendered prospective deposition dates and the names of the relevant employees, but Har-iel’s attorney never responded in an effort to schedule depositions, (b) Hariel’s ninety-day extension expired on August 14, 2005, (c) Hurricane Katrina struck the coast after Hariel’s deadline expired, and (d) Har-iel’s October 10, 2005 request for additional time occurred nearly sixty days after his initial extension expired.

BRMC sets its motion for summary judgment for hearing

¶ 18. On October 31, 2005, BRMC’s attorney contacted Hariel’s attorney by fax and notified Hariel’s attorney that, unless she heard otherwise by November 4, 2005, she would schedule a hearing on Dr. Pa-lumbo’s and BRMC’s motions for summary judgment for December 5, 2005. On November 10, 2005, BRMC’s attorney filed a notice that the circuit court would conduct a summary judgment hearing on December 5, 2005.

Hariel files a motion to continue the summary judgment hearing

¶ 19. On November 30, 2005, Hariel’s attorney filed a motion to continue the hearing on Dr. Palumbo’s and BRMC’s motions for summary judgment. Hariel’s counsel listed two reasons for his request for a continuance: (a) counsel had a trial in the Chickasaw County Circuit court for December 5, 2005, and (b) “counsel for the Plaintiff is located four (4) hours from Biloxi, Mississippi, and is not able to secure lodging due to Hurricane Katrina.”

The hearing on Hariel’s motion for continuance

¶ 20. On December 5, 2005, the circuit court conducted a hearing on Hariel’s motion for continuance. At the hearing, Har-iel’s lawyer abandoned his initial two underlying reasons in support of his motion for continuance. According to Hariel’s attorney, it was not a problem to appear in Biloxi at that time. Further, Hariel’s attorney stated that he was mistaken when he said he had a trial set in Chickasaw County.

¶ 21. Hariel moved to continue the summary judgment hearing. He did not move to extend his time to respond to the motions for summary judgment. According to Hariel’s attorney, he did not designate an expert or otherwise respond to BRMC’s and Dr. Palumbo’s motions for summary judgment because: (a) he had not been able to depose any BRMC employees; (b) he had only been involved with the case since July 28, 2005; (c) he expected to glean the information he required when he deposed Dr. Palumbo, but he did not obtain that information; (d) he held off on depositions because of the aftermath of Hurricane Katrina; (e) he did not think it would matter if he went over the ninety-day deadline because counsel opposite proposed deposition dates after the expiration of his additional time; and (f) he could not track down the physician Ms. Burkes consulted because Ms. Burkes’s office was destroyed by Hurricane Katrina. Finally, Hariel’s attorney requested a sixty-day extension so that he could designate an expert.

¶ 22. Counsel for BRMC responded to Hariel’s assertions and noted that Hariel’s ninety-day extension ended two weeks before Hurricane Katrina struck the Gulf Coast. Further, BRMC’s lawyer related the timeline of events and pointed out that she tendered prospective dates to depose BRMC representatives, but Hariel’s attorney never responded. Ultimately, the circuit court denied Hariel’s motion for a continuance of the summary judgment hearing.

The hearing on Dr. Palumbo’s and BRMC’s motions for summary judgment

¶ 23. Immediately afterwards, the circuit court conducted a hearing on Dr. Pa-lumbo’s and BRMC’s motions for summary judgment. Dr. Palumbo and BRMC suggested that summary judgment was proper because Hariel’s ninety-day extension expired well before Hurricane Katrina, counsel for Hariel had not been diligent in conducting discovery, Hariel’s motion for continuance was not a Rule 56(f) motion for extension of time, and counsel for Har-iel could not prove excusable neglect for his lack of diligence in responding. The circuit court did not reach a decision on the day of the hearing. Instead, the circuit court ordered proposed findings of fact and conclusions of law and held the matter in abeyance for the time being.

After the summary judgment hearing

¶ 24. On December 13, 2005, Hariel filed another motion for additional time pursuant to M.R.C.P. 56(f) to depose BRMC’s clients. Hariel argued that an extension was appropriate because (a) Dr. Palumbo’s deposition date was near the end of the circuit court’s time extension, (b) BRMC’s attorney provided deposition dates either near the end of the time frame or beyond the time frame, (c) the time frame was insufficient to schedule depositions, conduct the depositions, transcribe the depositions, provide those depositions to a consulting expert, and then obtain an expert’s final opinion, and (d) Hariel’s first attorney’s office was destroyed by Hurricane Katrina and, as a result, Hariel’s then-current attorney only recently ascertained the identity of the expert consulted at the time Hariel’s complaint was filed.

¶25. On December 14, 2005, Hariel filed the affidavit of Dr. Scott Helton. Within that affidavit, Dr. Helton submitted that a “grounding pad” caused Hariel’s burn. Further, Dr. Helton stated:

Both Dr. Palumbo and the staff of [BRMC] breached the standard of care in their treatment of Mr. Hariel. It was below the standard of care for Dr. Pa-lumbo and/or the staff of the hospital for the grounding pad to be placed as it was and for the electrocautery and/or radiof-requency devices to be used as they were.

BRMC and Dr. Palumbo responded and filed a motion to strike Dr. Helton’s affidavit on the basis that (a) Dr. Helton’s affidavit was not actually an affidavit because it lacked the signature of a notary, and (b) Hariel did not demonstrate excusable neglect for his late filing.

The circuit court sustains the motions for summary judgment

¶ 26. On December 19, 2005, the circuit court granted Dr. Palumbo’s and BRMC’s motions for summary judgment. The circuit court reached its conclusion because Hariel did not depose BRMC’s staff during his ninety-day discovery extension, did not respond to BRMC’s or Dr. Palumbo’s motions for summary judgment, and did not present any evidence at the summary judgment hearing. On December 21, 2005, the circuit court entered an order and overruled Hariel’s motion for additional time and granted Dr. Palumbo’s and BRMC’s motion to strike Dr. Helton’s affidavit. On January 3, 2006, the circuit court entered its final judgment of dismissal. Aggrieved, Hariel appeals.

ANALYSIS

¶27. Hariel submits that the circuit court erred when it granted Dr. Palumbo’s and BRMC’s motions for summary judgment. According to Hariel, the circuit court erred for three reasons: (a) Hariel filed an expert -witness before the circuit court granted summary judgment, (b) there was no deadline for Hariel to respond to the motions for summary judgment, and (c) Hurricane Katrina intervened before any response from Hariel was due.

A. Hariel’s Expert’s Affidavit

¶ 28. As mentioned, Hariel submitted an expert affidavit after the December 5th hearing. Incident to BRMC’s and Dr. Palumbo’s motion, the circuit court struck the affidavit of Hariel’s expert. Hariel does expressly claim the circuit court erred when it struck his expert’s affidavit. However, it is reasonable to interpret Hariel’s argument as such, considering that Hariel finds fault in the circuit court’s failure to consider the affidavit. Still, even if we apply such undue leniency to our standards regarding proper presentation of arguments on appeal, we are still confronted by the fact that Hariel submits absolutely no authority to support any such argument.

¶ 29. What remains is Hariel’s contention that the circuit court erred when it did not allow Hariel to submit untimely proof of a genuine issue of material fact. To be sure, Hariel requested an additional sixty days to obtain the affidavit of an expert, but the circuit court never gave Hariel any additional time. Further, Hariel never filed a motion to reopen the case so that he could submit the expert affidavit. Likewise, Hariel never attempted to establish excusable neglect in his failure to timely obtain the affidavit of an expert witness.

¶ 30. To the extent that Hariel’s argument may be interpreted as a suggestion that the circuit court should have given him more time to designate his expert, a trial court has sound discretion to grant or deny a continuance under Rule 56(f). Stallworth v. Sanford, 921 So.2d 340(¶ 9) (Miss.2006). This Court will only reverse a trial court where its decision can be characterized as an abuse of discretion. Id.

¶ 31. It is important to consider the sequence of events involved in this case. There is no evidence that Hariel did anything to further designation of an expert between June of 2004 and March of 2005, when Dr. Palumbo filed his motion for summary judgment. Expert testimony is required to establish that a defendant failed to use ordinary skill and care. Stallworth, 921 So.2d at 342(¶ 6). The circuit court then gave Hariel additional time to respond to Dr. Palumbo’s motion. Har-iel did not meet his extended deadline. Instead, he filed an untimely motion for extension pursuant to M.R.C.P. 56(f). Pursuant to M.R.C.P. 56(f):

Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as is just.

Next, Hariel received ninety additional days to respond to the motions for summary judgment. What is more, counsel for BRMC and Dr. Palumbo agreed to allow Hariel that additional time.

¶ 32. At that point, Hariel’s attorney and BRMC’s attorney began to work out just who Hariel wanted to depose. Hariel asked BRMC for dates to depose “your clients.” BRMC asked Hariel to be specific as to who he wanted to depose. Hariel asked BRMC to name those people involved in Hariel’s surgery. BRMC complied and offered potential deposition dates. Hariel never responded.

1133. Approximately five weeks later, BRMC contacted Hariel and noted that Hariel and Dr. Palumbo would be deposed on July 28, 2005. BRMC also referenced the fact that Hariel had not set any BRMC representatives for deposition. BRMC tendered more potential deposition dates. Again, Hariel never responded or requested to depose any of those BRMC representatives.

¶ 34. Hariel’s ninety-day extension expired on August 14, 2005. Prior to that date, Hariel did not designate an expert or request additional time to do so. BRMC informed Hariel that it intended to schedule a hearing on its motion for summary judgment. Hariel never responded. Two weeks later, Hurricane Katrina struck the Gulf Coast, so BRMC’s hearing was postponed.

¶35. During October of 2005, BRMC again attempted to schedule a hearing on its motion for summary judgment. Only then did Hariel again mention his intent to depose BRMC’s representatives. Hariel would not agree to a hearing date, and BRMC would not agree to Hariel’s request for additional time. At that point, approximately nineteen months had transpired since Hariel filed his lawsuit. At the end of October, BRMC contacted Hariel and notified him that, unless he responded by November 4th, BRMC would schedule a hearing on its motion for summary judgment for December 5th. Hariel did not respond. Accordingly, on November 10th, BRMC set its motion for hearing. Hariel did nothing until November 30th, when he filed a motion to continue the summary judgment hearing. To be clear, Hariel did not file a Rule 56(f) motion for additional time to respond to the motions for summary judgment.

¶ 36. The circuit court considered Har-iel’s motion on December 5th, but did not find Hariel persuasive. The circuit court then considered BRMC’s and Dr. Palum-bo’s motions for summary judgment. Finally, the circuit court held the matter in abeyance and ordered proposed findings of fact and conclusions of law.

¶ 37. Only afterwards did Hariel submit an expert affidavit. Hariel never requested permission to submit additional evidence. Hariel never requested that the circuit court reopen the matter. Hariel’s affidavit was too late. Hariel had multiple extensions to acquire an expert’s affidavit.

¶ 38. “A litigant desiring to avail herself of the right to present more evi-dentiary material has an affirmative duty to timely raise the issue with the trial court or be deemed to have waived objection to the- court proceeding on the motion.” Russell v. Williford, 907 So.2d 362(¶ 36) (Miss.Ct.App.2004). Pursuant to Rule 56(f), when a party who opposes summary judgment “cannot for reasons stated present by affidavit facts essential to justify his opposition,” that party must file an affidavit to that effect in order to elaim his right to a continuance in order to obtain affidavits or to pursue further discovery. M.R.C.P. 56(f). Said differently, when a litigant seeks to submit affidavits after the conclusion of a summary judgment hearing, that litigant is required to object or move for continuance at the hearing.” Russell, 907 So.2d at 369(¶ 37).

¶ 39. “Rule 56(f) is not designed to protect litigants who are lazy or dilatory.” Stallworth, 921 So.2d at (¶ 11). Considering the peculiar circumstances involved, we cannot say the circuit court abused its discretion when it did not allow Hariel to submit an untimely affidavit.

B. Hurricane Katrina

1140. Hariel submits that Hurricane Katrina intervened in his extended time. However, Hurricane Katrina made landfall over two weeks after Hariel’s extended time expired. At best, Hurricane Katrina was an arguable basis for an extension of time. Combined with the fact that Hariel never requested additional time before his time expired or even between the time it expired and Katrina’s landfall, we cannot find that the circuit court erred when it declined to give Hariel an extension due to Hurricane Katrina.

C. Hariel’s deadline

¶ 41. Hariel argues that his ninety-day extension was only a deadline for discovery and not a deadline to respond to the motions for summary judgment. The precise language of the order, entered in response to Hariel’s M.R.C.P. 56(f) motion for extension of time, set forth that “the parties are granted an additional ninety (90) days from the date of this Order to conduct discovery in this case. After that, [Hariel] will be permitted to respond to the Defendants’ Motion for Summary Judgment.”

¶ 42. Even if we interpret the order as a deadline to conduct discovery, that interpretation does not change the fact that Hariel never responded to either BRMC’s or Dr. Palumbo’s motion for summary judgment. Further, if Hariel took the position that the deadline was a discovery deadline, he never requested time to respond to the motion for summary judgment. Hariel allowed four months to elapse before he filed an affidavit-and that was after the summary judgment hearing. Hariel never argued for excusable neglect for his lack of diligence. Considering the circumstances, we can find no reversible error.

¶ 43. THE JUDGMENT OF THE SECOND JUDICIAL DISTRICT OF THE HARRISON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE AND CARLTON, JJ., CONCUR. KING, C.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. BARNES, J., NOT PARTICIPATING.

      . Hariel’s attorney dated the affidavit on May 3, 2004. The affidavit was filed on May 26, 2004.

      . The parties never entered an agreed scheduling order.

      . Hariel's attorney attached an affidavit to his Rule 56(f) motion for additional time to respond to Dr. Palumbo’s and BRMC’s motions for summary judgment. Within that affidavit, Hariel’s attorney claimed that Dr. Palumbo and BRMC attributed Hariel's burn to allergic reaction to iodine. Hariel's attorney also claimed that Hariel had never had an allergic reaction to iodine and that he did not believe iodine to be the cause of his burn.

      .If Hariel’s attorney requested dates to depose BRMC's clients before this time, those requests do not appear in the record presently before this Court.

      . Within that correspondence, Hariel's attorney asked BRMC and Dr. Palumbo to agree to allow Hariel thirty days after the completion of depositions to designate expert witnesses. Hariel also attached a proposed agreed order. The agreed order in the record indicates that BRMC’s attorney signed the proposed agreed order, but neither Dr. Palumbo’s attorney nor the circuit court signed it.

      . Also on July 28, 2005, attorney Mark Cliett entered an appearance on behalf of Hariel. The record contains no indication that David Lambert withdrew as Hariel’s attorney. It is also important to note that, though Mr. Lambert filed Hariel’s complaint, attorney Jennifer Burkes referred Hariel’s case to Mr. Lambert. Ms. Burkes never entered an appearance in Hariel's lawsuit, however.


source: Caselaw Access Project

author: GRIFFIS, J., for the Court.

license: Public Domain

text:
    Eugene L. ROBINSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00283-COA.
    Court of Appeals of Mississippi.
    Sept. 11, 2007.

      Eugene L. Robinson, appellant, pro se.
    Office of the Attorney General by Jacob Ray, attorney for appellee.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Eugene Robinson appeals the denial of his petition for post-conviction relief. He argues that: (1) his plea was involuntary and coerced; (2) his sentence was excessive; (3) he was not afforded effective assistance of counsel; and (4) the process was subject to cumulative error. We find no error and affirm.

FACTS

¶2. On January 21, 2003, Eugene L. Robinson and Lamar Gladney were indicted for armed robbery. On February 18, 2003, Robinson changed his plea from not guilty to guilty. Following a guilty plea hearing, the trial court accepted Robinson’s guilty plea and sentenced him to serve thirty years in the custody of the Mississippi Department of Corrections.

¶ 3. During the plea colloquy, the prosecutor gave a brief recitation of the facts underlying the crime by reading the indictment. He stated that on December 5, 2002, Robinson and Gladney took, against the will of Janet Tanksley and Versia Fair, $16,567 which was the property of Merchants and Farmers Bank. The trial court also inquired of Robinson whether he committed the crime alleged in the indictment, to which he responded, “Yes.”

¶4. On April 7, 2006, Robinson filed a motion in the Choctaw County Circuit Court requesting post-conviction relief. The trial court denied the motion without an evidentiary hearing.

STANDARD OF REVIEW

¶ 5. 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

I. Robinson’s plea was involuntary and coerced

¶ 6. Robinson’s first argument is that his plea was involuntary because his attorney coerced him to plead guilty. Specifically, Robinson claims that his attorney advised him to take the guilty plea and receive a thirty year sentence or go to trial and risk a life sentence.

¶ 7. Robinson is correct in that a plea is binding only if it is entered into voluntarily. Myers v. State, 583 So.2d 174, 177 (Miss.1991). Uniform Rule of Circuit and County Court 8.04 requires a showing in the record that the guilty plea is voluntarily. Further, “a plea of guilty is not voluntary if induced by fear, violence, deception, or improper inducements.” URCCC 8.04.

¶ 8. Here, however, Robinson’s counsel’s advice did not rise to the level of coercion. Counsel has “a duty to fairly, even if that means pessimistically, inform the client of the likely outcome of a trial based upon the facts of the case.” Daughtery v. State, 847 So.2d 284, 287(¶ 6) (Miss.Ct.App.2003). If the attorney believes that it is in his client’s best interest to plead guilty, it is his duty to inform him of that fact. Id. (citing Polk County v. Dodson, 454 U.S. 312, 318, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981)). This is what occurred. Robinson’s counsel felt that it was in his client’s best interest to plead guilty and advised him of such.

¶ 9. “The fact that a defendant pled guilty because he feared a harsher sentence otherwise, does not render the plea involuntary.” Jones v. State, 922 So.2d 31, 35(¶ 10) (Miss.Ct.App.2006) (citing Brady v. U.S., 397 U.S. 742, 749-50, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)). Even if Robinson pled guilty because he did not want to risk a potential sentence of life imprisonment, the maximum for this crime, it does not render his plea involuntary. Miss.Code Ann. § 97-3-79 (Rev.2006). Robinson provided sworn testimony at the guilty plea hearing that no one used threats, coercion, or physical violence to induce his plea. Accordingly, we find that this allegation is without merit.

II. Excessive Sentence

¶ 10. Under the issue of excessive sentence, Robinson actually addresses two separate points. First, he alleges that the factual basis underlying the plea is only enough to find him guilty of accessory after the fact. Second, he alleges that the trial court wrongfully denied him early release, probation, or parole. We will analyze each of these allegations separately.

A. Factual Basis

¶ 11. Robinson argues that there was not a factual basis underlying the guilty plea to support a conviction of armed robbery. He alleges that the facts presented during the guilty plea hearing only support a conviction of accessory after the fact which carries a much lower sentence.

¶ 12. While Robinson is correct that there must be a factual basis underlying the plea, there was such a factual basis presented here to support a guilty plea of armed robbery. The factual basis requirement can be found in Rule 8.04 of the Uniform Circuit and County Court Rules. We look to the entire record to determine if such a factual basis exists. Drake v. State, 823 So.2d 593, 594(115) (Miss.Ct.App.2002) (citing Corley v. State, 585 So.2d 765, 767-68 (Miss.1991)). The mere fact that the factual basis does not provide all the details which may be produced at trial does not render the guilty plea fatal. Id. This Court has held that “if sufficiently specific, an indictment or information can be used as the sole source of the factual basis for the plea.” Id. at (¶ 6).

¶ 13. Here, as in Drake, the indictment was specific as to the crime committed. Robinson’s indictment provided all of the elements of the offense of armed robbery. These elements included: “(1) feloniously taken or attempted to take another’s personal property; (2) from the person or from the presence; (3) against the person’s will; (4) by violence to his person, or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon.” Clayton v. State, 946 So.2d 796, 804(¶ 28) (Miss.Ct.App.2006) (citing Miss.Code Ann. § 97-3-79). The indictment alleged that Robinson and Gladney took from the presence of Janet Tanksley and Versia Fair $16,567, property of Merchants and Farmers Bank. Further, it alleged that the taking was against Tanksley’s and Fair’s will and they were in fear of immediate injury by the exhibition of deadly weapons, namely shotguns. After the reading of the indictment, the trial court asked Robinson if he committed the crime charged. He responded, “Yes.”

¶ 14. We find that there was a sufficient factual basis to support Robinson’s conviction for armed robbery.

B. Denial of early release, probation or parole

¶ 15. Robinson also argues that the trial court incorrectly stated that due to the nature of the charge, Robinson would not be eligible for early release, probation, or parole. Robinson quotes the trial court as stating, “If I sentence you to a term of incarceration because of the nature of the charge, you would not be subject to an early release, probation or parole. Do you understand that?” After a thorough search of the record provided to this Court, we are not able to find where the trial court made that statement. The record reveals the following discussion:

BY THE COURT: Do you understand nobody can guarantee you any early release, probation or parole? If you are sentenced to a term of incarceration, you might have to serve the whole thing?
BY THE DEFENDANT: Yes.
BY THE COURT: On the charge of— well, as a matter of fact, on the armed robbery charge if I accept your plea of guilty, whatever the sentence you receive in jail is mandatory. You would have to serve the whole thing. Do you understand that?
BY THE DEFENDANT: Yes, sir.

¶ 16. Early release and parole are matters of legislative grace and are not consequences of a guilty plea. Shanks v. State, 672 So.2d 1207, 1208 (Miss.1996) (citing Smith v. United States, 324 F.2d 436, 441 (D.C.Cir.1963)). The trial court is not required to explain it. Id. Here, Robinson cites to Mississippi Code Annotated § 47-5-139(l)(e) to support his proposition that he should gain earned time after serving ten years of his sentence. The code section to which he cites states that he can earn time for early release once he has served the mandatory portion of his sentence before he becomes eligible for parole. Mississippi Code Annotated § 47-7-3(l)(d)(ii) “no person who commits a robbery by displaying a deadly weapon shall be eligible for parole.” The mandatory portion of Robinson’s sentence would be the entirety of the imprisonment, as he would not be eligible for parole.

¶ 17. Therefore, the trial court was not in error when it stated that due to the nature of the charge, robbery through the display of a deadly weapon, Robinson would be required to serve the entire sentence. We find this issue is without merit.

III. Robinson was not afforded effective assistance of counsel

¶ 18. Robinson claims that his counsel was ineffective for a number of reasons in violation of his Sixth Amendment right to counsel. Namely, Robinson argues that: he should have only been convicted for accessory after the fact at most; he was never informed of the consequences of the guilty plea; he was subject to more than the thirty years of imprisonment to which he agreed in his plea bargain; and his attorney failed to investigate the crime.

¶ 19. To prevail on a claim of ineffective assistance of counsel, Robinson must demonstrate that his counsel’s performance was deficient and that this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with Robinson, and we will measure the alleged deficiency within the totality of circumstances. Hiter v. State, 660 So.2d 961, 965 (Miss.1995); Carney v. State, 525 So.2d 776, 780 (Miss.1988). However, a presumption exists that the attorney’s conduct was adequate. Burns v. State, 813 So.2d 668, 673(¶ 14) (Miss.2001).

¶ 20. The first complaint was previously addressed during the discussion about the factual basis of the plea. As to the second and third complaint, they can be discussed together. Robinson argues that he was not explained the consequences of a guilty plea and that the guilty plea subjected him to a longer imprisonment than the thirty years which was found in his plea agreement. In the event that his counsel did fail to explain to him the consequences of his plea, he cannot say that it prejudiced his defense. The trial court clearly explained the consequences of the plea, including the rights that would be forfeited and the potential sentence that he would receive. Further, the trial court explained what effect the guilty plea would have on other outstanding charges, specifically no effect. After receiving that information from the trial court, Robinson could have withdrawn his plea, but he chose instead to enter a plea of guilty.

¶ 21. The final argument was that Robinson’s attorney failed to investigate the offense. For failure to investigate to become ineffective assistance of counsel, the defendant must state with particularity what the investigation would have revealed and how it would have altered the outcome. Triplett v. State, 840 So.2d 727, 731(¶ 11) (Miss.Ct.App.2002). In his brief, Robinson stated that after interviewing the co-defendant, his attorney would have realized that his “involvement in the crime was at a minimum.” The record does not support this allegation, but does support the factual basis that Robinson went into Merchants and Farmers Bank with Gladney, while wielding shotguns, to rob the bank. While Robinson may have had little involvement in the crime, it does not appear that it was as an accessory after the fact as he suggests. If he was an accessory in the crime, it was an accessory before the fact. In which case, he would still be charged as a principal. Robinson has failed to state with particularity anything that further reasonable investigation would have revealed or how it would have altered the outcome. Id.

¶ 22. Robinson has failed to overcome the presumption that his counsel was effective and further failed to demonstrate with particularity how his defense was prejudiced due to ineffective assistance of counsel. Therefore, this allegation is without merit.

TV. Cumulative Error

¶ 23. Robinson argues that if the aforesaid errors should not be grounds for relief, their cumulative effect should be grounds for relief. As we have previously stated, the allegations above were without merit. “As there was no reversible error in any part, so there is no reversible error to the whole.” McFee v. State, 511 So.2d 130, 136 (Miss.1987).

¶24. In addition to cumulative error, Robinson argues several issues in his statement of issues which he fails to discuss or provide support. These issues include, failure to include the judicial district in the indictment and never being told of his right to appeal. The supreme court “has held that failure to cite to relevant authority reheves us of the duty of reviewing the issue.” Brawner v. State, 947 So.2d 254, 265(¶ 32) (Miss.2006) (citing Glasper v. State, 914 So.2d 708, 726(¶ 40) (Miss.2005)). Therefore, since Robinson failed to provide this Court with any relevant citation or support for these two issues, we will not address them.

¶ 25. Accordingly, we find no merit to the issues raised by Robinson. We affirm the trial court’s denial of post conviction relief.

¶ 26. THE JUDGEMENT OF THE CHOCTAW COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CHOCTAW COUNTY.

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


author: ISHEE, J., for the Court.

text:
    Charles D. JEFFERSON a/k/a Charles Jefferson, Appellant, v. STATE of Mississippi, Appellee.
    No. 2006-KA-01259-COA.
    Court of Appeals of Mississippi.
    Sept. 11, 2007.

      Leslie S. Lee, Jackson, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   ISHEE, J., for the Court.

¶ 1. On May 26, 2006, a jury in the Marion County Circuit Court convicted Charles Jefferson of possession of cocaine. The court sentenced him to sixteen years in the custody of the Mississippi Department of Corrections, with twelve years to be suspended upon completion of four years, and five years of post-release supervision. Jefferson appeals and asserts the following issues:

I. The court erred by denying his motion for a directed verdict because the State failed to prove its circumstantial evidence ease,
II. The court erred by not granting a mistrial on the basis of the prosecutor’s comments during closing argument, and
III.The verdict was contrary to the weight and sufficiency of the evidence.

Finding no error, we affirm.

FACTS

¶ 2. While on patrol, Officer James Carney, of the Columbia Police Department, stopped a vehicle for speeding at approximately 7:45 p.m. on November 7, 2002. In the car were Donovan Lewis, Charles Jefferson, and two females. Lewis was driving and Jefferson was in the backseat with the one of the females.

¶ 8. Carney decided to arrest the occupants of the car when he discovered that the driver, Lewis, did not have a driver’s license, there were open containers of beer in the car, and one of the females was underage. Officer Jamie Singley responded to the scene to assist Carney in making the arrest. Carney removed Lewis and the female in the front seat from the car and secured them, placing Lewis in the backseat of his patrol ear on the driver’s side. In the meantime, Singley did the same with Jefferson and the other female, placing Jefferson in the backseat of Carney’s car on the passenger’s side. They testified that they placed the men in the car on their respective sides, and they did not have them slide across the backseat. The officers placed the females in the backseat of Singley’s car.

¶ 4. Upon arriving to the Marion County jail, Carney removed the two men from his patrol car and lifted his backseat to see if they had dropped anything underneath it. He testified that this was his standard procedure whenever he transported someone to jail. When he lifted the seat, he found a small plastic bag containing what he believed was cocaine. The State put on a forensic scientist, Timothy Gross, who tested the substance and determined that it was 2.3 grams of cocaine.

¶ 5. Officer Carney testified that he came on duty on the evening of November 7, 2002, at 6:00 p.m. and inspected the exterior and interior of his patrol car, as was standard operating procedure. Part of his inspection involved lifting the rear seat of the car to see if anything was underneath it. Carney testified that, on the night he arrested Jefferson, he followed this procedure, and he did not find anything when he lifted the backseat. He also denied carrying anyone in his patrol car that evening from the time he began his shift until the time he stopped Lewis and Jefferson and transported them to the jail.

¶ 6. Jefferson claimed that Officer Sing-ley thoroughly patted him down and searched his pockets before putting him in the patrol car. Singley denied this, however, and claimed that he only did a brief pat down to determine if Jefferson was carrying any weapons. He and Carney testified that standard procedure is to pat down a suspect before placing him in the patrol car and that they do not reach into a suspect’s pockets unless they believe he has a weapon.

¶ 7. Both of the men that Carney transported denied that it was their cocaine found in the patrol car, although neither stated it belonged to the other. Furthermore, Carney testified that, while en route to the police station, he was paying attention to the men in his backseat, and he did not see Lewis slide over or put anything on Jefferson’s side of the car.

¶ 8. Ultimately, the jury found Jefferson guilty of possession of the cocaine, and the court sentenced him to sixteen years in the custody of the Mississippi Department of Corrections, with twelve years to be suspended upon completion of four years of the sentence.

ISSUES AND ANALYSIS

I. Whether the court should have granted a directed verdict

¶ 9. In his first point of error, Jefferson claims the State did not put on any evidence to exclude Lewis as a possessor of the cocaine. As such, he argues that the State did not meet the burden of excluding every reasonable hypothesis in its circumstantial evidence case against him.

¶ 10. Review of a motion for a directed verdict tests the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843(¶ 15) (Miss.2005). The court must determine whether the evidence shows “beyond a reasonable doubt that the 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.” Id. at 843(¶ 16) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). Taking the evidence in the light most favorable to the verdict, the question is not whether the court believes the evidence established guilt beyond a reasonable doubt but whether a rational trier of fact could have found all the elements beyond a reasonable doubt. Bush, 895 So.2d at 844(¶ 16) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 11. Contrary to Jefferson’s assertions, we find the State put on ample evidence to survive a motion for a directed verdict. In a circumstantial evidence case such as this, the burden is on the prosecution to prove guilt beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence. Neal v. State, 805 So.2d 520, 526(¶ 20) (Miss.2002) (citing Tolbert v. State, 407 So.2d 815, 820 (Miss.1981)). The State does not need to exclude every possible hypothesis. Id. Jefferson’s hypothesis was that Lewis was equally likely to put the cocaine under the seat; however, the prosecution put on evidence that specifically excluded this alternative.

¶ 12. Each man was put in the car on the same side on which he rode to the police station. Carney said he watched them, and he did not see Lewis slide over or throw anything over to Jefferson’s side of the car. Carney also said that he found the cocaine directly under the spot where Jefferson was sitting, not in the middle. Lastly, Lewis took the stand and denied that the cocaine belonged to him.

¶ 13. The circumstantial nature of evidence is “properly for the jury to weigh when determining its verdict.” Hughes v. State, 735 So.2d 238, 277 (¶ 178) (Miss.1999). Taking this evidence most favorably for the prosecution, there was sufficient evidence for a trier of fact to find Jefferson guilty beyond a reasonable doubt and to the exclusion of any reasonable alternatives. This issue is without merit.

II. Whether the court should have ordered a mistrial

¶ 14. Generally, an attorney is given wide latitude to make a closing argument. Johnson v. State, 477 So.2d 196, 209 (Miss.1985). This is an important part of our adversarial system, and courts must be careful in limiting arguments to the jury. Id. However, a prosecutor may not use tactics that are “inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury.” Sheppard v. State, 777 So.2d 659, 661(¶ 7) (Miss.2000) (citing Hiter v. State, 660 So.2d 961, 966 (Miss.1995)). The inquiry regarding attorney misconduct during closing arguments is “whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.” Id. (citing Ormond v. State, 599 So.2d 951, 961 (Miss.1992)).

¶ 15. In the present case, Jefferson objected to the prosecutor’s personal impressions regarding the credibility of witnesses. Regardless of whether the statements made by the prosecutor were improper, Jefferson objected to them, and the trial court sustained those objections. While the judge also denied Jefferson’s motion for a mistrial, such a decision is within the trial court’s discretion. Johnson v. State, 666 So.2d 784, 794 (Miss.1995). The denial of a motion for mistrial will not be overturned on appeal absent an abuse of discretion. Id.

¶ 16. Jefferson objected to two comments by the prosecutor. The first objection came after the prosecutor said, “I can tell you that in this case right here that I have looked at it and I have looked at it and I have looked at it. I have talked with my officers.” Jefferson next objected when the prosecutor said, “I’ve worked with this case. I’ve talked with these officers. I have gone through the same process which you are going through now in my mind.” In regards to Jefferson’s motion for a new trial, the judge determined that these statements were not so prejudicial that they would influence the jury’s decision. Furthermore, since he sustained Jefferson’s prompt objections to the comments, we find that any prejudice was cured. The judge was, therefore, within his discretion to deny the motion. This issue is without merit.

III. Whether the verdict was against the weight or sufficiency of the evidence

¶ 17. We previously discussed whether the evidence was sufficient to withstand a directed verdict, and that prior analysis is applicable to Jefferson’s claim that the court erred in denying his motion for a judgment notwithstanding the verdict. At the close of the trial, there was sufficient evidence, circumstantial in this case, for a rational trier of fact to find Jefferson guilty beyond a reasonable doubt and to the exclusion of any reasonable hypotheses put forward by Jefferson.

¶ 18. In reviewing a motion for a new trial, however, the question is not whether the evidence was sufficient but whether the jury verdict is against the overwhelming weight of the evidence. Bush, 895 So.2d at 844(¶ 18) (citing Herring v. State, 691 So.2d 948, 957 (Miss. 1997)). We must weigh the evidence in the light most favorable to the verdict, and only when a verdict is so contrary to the overwhelming weight of the evidence that it creates an unconscionable injustice will we reverse. Id. The motion “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.” Id. (quoting Amiker v. Drugs for Less, Inc., 796 So.2d 942, 947(¶ 18) (Miss.2000)).

¶ 19. When we take the evidence in the light most favorable to the verdict, we find the weight of the evidence supports the guilty verdict. Testimony revealed that the patrol car was clean of any drugs when Jefferson was arrested, and he offered no evidence to the contrary. Immediately after he was removed from the car, Carney discovered the bag of cocaine directly under the seat where Jefferson had been sitting. Furthermore, Lewis denied the drugs belonged to him, and there was no evidence that he was on Jefferson’s side of the car or that he could have put the drugs there. Based on the evidence, we cannot say the verdict creates an unconscionable injustice and requires reversal. This issue is without merit.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF MARION COUNTY OF CONVICTION OF POSSESSION OF COCAINE AND SENTENCE OF SIXTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWELVE YEARS TO BE SUSPENDED UPON COMPLETION OF FOUR YEARS, AND FIVE YEARS OF POST-RELEASE SUPERVISION, AND PAYMENT OF A $3,000 FINE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Kelvin E. DENMAN a/k/a Kalvin E. Denman, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00513-COA.
    Court of Appeals of Mississippi.
    Sept. 11, 2007.

      William C. Bristow, Tupelo, Attorney for Appellant.
    Office of the Attorney General by Deirdre McCrory, Attorney for Appellee.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   ISHEE, J., for the Court.

¶ 1. On February 14, 2006, a jury in the Lee County Circuit Court found Kelvin Denman guilty of the armed robbery of Nakita Doss that occurred May 21, 2005, outside the Citi Trends store in Tupelo, Mississippi. The jury was unable to sentence Denman to life in prison, so the judge ordered him, as an habitual offender, to serve twenty-seven years in the custody of the Mississippi Department of Corrections. Aggrieved, Denman appeals. He asserts the following issues:

I. The court erred in denying Den-man’s motions for a directed verdict at the close of the State’s case and at the close of the defense’s case.
II. The verdict was against the overwhelming weight of the evidence, and the court erred in denying Denman’s motion for a judgment notwithstanding the verdict.
III. The sentence as an habitual offender violated Denman’s due process rights and the prohibition against double jeopardy.

Finding no error, we affirm.

FACTS

¶ 2. On the night of May 21, 2005, three employees of Citi Trends in Tupelo were closing the store around nine o’clock. The three employees were Dominique Crowley, Dessie Silas, and the manager, Nakita Doss, who also had her two daughters with her as well. As Doss was locking the store, an African American man dressed all in black stepped out from behind a column with what witnesses described to be a ten or twelve-inch knife. The man wore a black stocking over his face, so none of the witnesses were able to identify him.

¶ 3. Upon approaching the group, the man told the ladies to be still and not to move. Nevertheless, Crowley, Silas, and the girls began to run away screaming. Doss, however, was caught unaware because she had been locking the store. She testified that the man held the knife to her and told her not to be a hero. He then took her purse and ran. Doss’s purse contained approximately three-hundred dollars from a check she recently cashed along with her personal items and $3,910 in cash that represented the bank deposit for Citi Trends that evening.

¶ 4. After running a safe distance from the man, Silas dialed 911 on her cell phone. Robert Carnathan was the first officer on the scene. The Tupelo K-9 officer’s K-9 was unavailable at the time, so the responding officers contacted Scott Metlock, of the Lee County Sheriff’s Department, for K-9 support. Metlock’s K-9, Bronco, picked up a scent near the last known location of the suspect and tracked him around the back of the store to where the police discovered Doss’s stolen purse. Following Bronco further, the police reached the edge of a wooded area where the K-9 indicated that the suspect was present. Denman was discovered lying down in a depression in the woods, and when he refused to come out, Officer Met-lock sent Bronco after him. Officers testified that when Bronco bit Denman on the leg, he shouted, ‘You got me,” and “Get the dog off.”

¶ 5. Upon Denman’s apprehension, police discovered the stolen bank bags lying on the ground in the spot where Denman was located. A few feet away, the police discovered two black stockings like the type the witnesses said the robber had worn. Denman was also wearing a black shirt and black pants as described by the victim and the other women.

¶ 6. Denman took the stand in his own defense and denied robbing Doss. He testified that he was behind the building because he knew it to be a hangout for homeless people, and he was waiting for a ride. Police discovered a crack pipe on him when he was arrested, and Denman admitted that he had taken some drugs when he was behind the building. According to his testimony, there was another man who ran by him wearing black. He said he was just hiding because he did not want to be found back there and that he did not know the money was there when he hid. On cross-examination, the prosecutor attacked Denman’s credibility with the fact that he was convicted of embezzlement in 2002.

¶ 7. After a two-day trial, the jury found Denman guilty of armed robbery but could not agree to a life sentence. The judge, based on Denman’s prior convictions for grand larceny and embezzlement, sentenced him as an habitual offender to twenty-seven years in the custody of the Mississippi Department of Corrections. Denman now appeals his conviction.

ISSUES AND ANALYSIS

I. Whether the trial court erred by denying Denman’s motions for a directed verdict

II. Whether the verdict was against the overwhelming weight of the evidence and whether the court erred in denying the motion for a judgment notwithstanding the verdict

¶ 8. We will discuss these issues together as Denman’s claims involving a directed verdict and a judgment notwithstanding the verdict involve the same analysis.

¶ 9. Review of a motion for a directed verdict or judgment notwithstanding the verdict tests the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843(¶ 15) (Miss.2005). The court must determine whether the evidence shows “beyond a reasonable doubt that the 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.” Id. at 843(¶ 16) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). Taking the evidence in the light most favorable to the verdict, the question is not whether the court believes the evidence established guilt beyond a reasonable doubt but whether a rational trier of fact could have found all the elements of the offense existed beyond a reasonable doubt. Id. at 844(¶ 16) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 10. To avoid a directed verdict or judgment notwithstanding the verdict on the armed robbery charge, the State had to put on evidence that Denman did feloniously take from Doss’s person or her presence the purse and deposit slips by putting her in fear of immediate injury to her person by the exhibition of a deadly weapon. Miss.Code Ann. § 97-3-79 (Rev. 2006). The State was required to put on evidence of each of these elements sufficient to allow a rational trier of fact to find Denman guilty beyond a reasonable doubt.

¶ 11. Concerning the requirement that Denman take the property from Doss’s person or presence, the witnesses testified that Doss had the purse and bank deposits in her hand when the suspect snatched them and ran away. The women also testified that they interpreted the suspect’s comments, such as telling them not to move and not to be a hero, as threats and that they were afraid. Not only was there testimony concerning the comments, but the suspect was wearing a mask, was dressed all in black, and displayed a knife. While no weapon was found, the women testified that the suspect wielded a knife, which Silas said he waived in the air.

¶ 12. As far as Denman being the robber, the police dog picked up his scent from the location where the women last saw him. Along the route the dog followed, they found Doss’s abandoned purse. The officers continued to track the scent around the rear of the building and discovered Denman lying on the ground in the woods and in the same spot as the bank bags. He was dressed all in black, as was the suspect, and a few feet from that same spot were two black stockings that matched the type that the robber had worn over his face.

¶ 13. From the evidence presented at trial we cannot say the trial court was in error in denying Denman’s directed verdict and judgment notwithstanding the verdict. Taken in the light most favorable to the verdict, there was sufficient evidence to prove each element of the crime of armed robbery and for a rational trier of fact to find beyond a reasonable doubt that Denman committed that crime.

¶ 14. In reviewing a motion for a new trial, the question is whether the jury verdict is against the overwhelming weight of the evidence. Bush, 895 So.2d at 844(¶ 18) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). We must weight the evidence in the light most favorable to the verdict, and only when a verdict is so contrary to the overwhelming weight of the evidence that it creates an unconscionable injustice will we reverse. Id. The motion “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.” Id. (quoting Amiker v. Drugs for Less, Inc., 796 So.2d 942, 947(¶ 18) (Miss.2000)).

¶ 15. By taking the above evidence in the light most favorable to the verdict, we do not find the verdict to be against the overwhelming weight of the evidence. We cannot say that the guilty verdict creates an unconscionable injustice; therefore, the trial court did not abuse its discretion and properly denied Denman’s motion for a new trial. These issues are without merit.

III. Whether the sentence as an habitual offender violates the prohibition against double jeopardy

¶ 16. We do not find Denman’s sentence as an habitual offender to be a violation of the prohibition against double jeopardy. Denman himself cites the Fifth Circuit Court of Appeals case, which provides that section 99-19-81 of the Mississippi Code Annotated (Rev.2000) is not a violation of double jeopardy. Perkins v. Cabana, 794 F.2d 168, 170 (5th Cir.1986). The court held that section 99-19-81 “fixes the punishment for future felony offenses,” and that it “does not punish or increase the punishment for those past offenses.” Id. at 169. Qdnmaris argument, that sentencing him under section 99-19-81 violates hi^bonstitutional right against double jeopardy, is the same argument that was found to be without merit in Perkins. This issue is without merit.

¶ 17. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF TWENTY-SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER AND PAYMENT OF A $10,000 FINE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

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


author: KING, C.J., for the Court.

text:
    Kenny SIMS, Appellant, v. ASHLEY FURNITURE INDUSTRIES and Employers Insurance of Wausau, Appellees.
    No. 2006-WC-01305-COA.
    Court of Appeals of Mississippi.
    Sept. 11, 2007.

      Michael McHenry, Tupelo, attorney for appellant.
    J. Keith Pearson, Gulfport, Sarah Jane Lewis, Oxford, attorneys for appellees.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   KING, C.J., for the Court.

¶ 1. Kenny Sims appeals the Pontotoc County Circuit Court’s decision affirming the Mississippi Workers’ Compensation Commission’s denial of his right to reopen his previously settled workers’ compensation claims. The Commission reversed an order by the administrative law judge, finding there was no basis to justify reopening the settlement. On appeal, Sims asserts three points of error, which can be consolidated into the following issue: whether the Mississippi Workers’ Compensation Commission’s findings were supported by substantial evidence and not contrary to the overwhelming weight of the evidence or clearly erroneous. Finding no error in the trial court’s decision, this Court affirms.

PROCEDURAL HISTORY

¶ 2. Kenny Sims suffered two work-related injuries while employed by Ashley Furniture Industries as a furniture builder. Sims’ first injury occurred on February 6, 2001 and the second injury occurred on March 6, 2001. In January 2002, Sims hired counsel and filed a workers’ compensation claim with the Mississippi Workers’ Compensation Commission.

¶ 3. In October 2002, Sims filed an application for approval of a compromise settlement. This settlement was finalized on October 25, 2002. On November 4, 2002, Ashley Furniture terminated Sims’ employment and he filed a motion to reopen his workers’ compensation claims. On April 6, 2004, an administrative law judge (ALJ) held a hearing regarding the motion to reopen. The ALJ issued an order on September 16, 2004, in which the ALJ found that there had been a material change of circumstances in Sims’ condition that would justify reinstating his workers’ compensation claims to the active docket of the Commission.

¶ 4. On September 27, 2004, Ashley Furniture and its carrier, Employers Insurance Company of Wausau, filed a petition for review before the Commission. The Commission held a hearing on May 9, 2005. The Commission reversed the ALJ’s decision, finding it was contrary to the law and the overwhelming weight of the evidence and that the ALJ erred as a matter of law in finding that Sims had met his burden of proving he was entitled to reopen his previously settled claims.

¶ 5. On August 10, 2005, Sims filed an appeal to the Pontotoc County Circuit Court. The circuit court affirmed the Commission’s decision. Sims timely filed this appeal of the circuit court’s decision.

FACTS

¶ 6. Sims worked as a furniture builder for Ashley Furniture Industries. On February 6, 2001, and March 6, 2001, Sims injured his upper extremities and his left shoulder from the repetitive motions of using his nail gun to build furniture. Sims suffered from bilateral carpal tunnel syndrome, and in April 2001, he underwent carpal tunnel release on his right extremity. In October 2001, Sims underwent surgery for his left extremity. Sims received temporary total disability workers’ compensation benefits for these injuries at a rate of $316.46 a week for a total of $16,411.72.

¶ 7. Dr. Kurt Thorderson, Sims’ surgeon, found Sims’s right hand had reached maximum medical improvement on October 25, 2001. Dr. Thorderson assigned a twenty percent impairment to Sims’ right upper extremity and placed a ten pound permanent restriction on the right hand, with no repetitive right hand use permitted.

¶ 8. In January 2002, Dr. Laverne Lovell began treating Sims’ upper left extremity. Dr. Lovell did not assign any restrictions to Sims’ upper left extremity and a performance evaluation revealed Sims was able to sustain light level work for eight hours a day.

¶ 9. Sims was released to restrictive duty and returned to work as a line supplier. He was unable, however, to continue performing in this position due to his injuries. He worked light duty, which involved sweeping floors for eight hours a day. The constant sweeping irritated Sims’ right hand and Dr. Thorderson placed Sims on medical leave for several weeks. Once Sims was able to return to work, his medical restrictions limited him from lifting more than ten pounds and he could not be involved in any pulling or jerking activities.

¶ 10. Sims transferred to Ashley Furniture’s sewing department and remained there from February 2002 until November 2002. He worked part-time in this department by turning pillows. In this position, Sims earned $7.85 per hour and he worked four hours a day. He previously earned between $12.00 and $21.00 per hour in the factory’s production department.

¶ 11. In October 2002, Sims filed an application for an approval of a compromise settlement. The Commission granted Sims’ request in an order executed on October 22, 2002. In the settlement, Sims received a lump sum award of $58,000, to be allocated over his life expectancy. Sims was forty-one years old at the time of settlement and was expected to live a remaining three hundred thirty-one months. This amount represented Sims’ future loss of wage earning capacity over the rest of his life expectancy. In exchange for the lump sum award, Sims agreed to release Ashley Furniture and Employers Insurance for all claims arising out of the February 6, 2001, and March 6, 2001, injuries, including any claims or injury involving Sims’ left shoulder. Sims executed a receipt and release, as well as a notice of final payment on October 25, 2002.

¶ 12. On November 4, 2002, Ashley Furniture changed the compensation method for the pillow turners from hourly wage to an incentive method based upon production. Upon being informed of the change in the method of pay computation for pillow turners, Sims immediately told his supervisor that he was unable to do the job. Subsequently, Sims was taken to the office where his employment was terminated.

¶ 18. On May 16, 2003, Sims filed a motion to reopen his workers’ compensation claim. Sims argued that his termination from Ashley Furniture, shortly after he finalized his compromise settlement, as well as the resulting loss of economic benefit, constituted a material change in circumstance that would justify reopening the claims. Sims asserted that Ashley Furniture acted in bad faith during the settlement negotiations by leading Sims to believe he would continue to work for the company after the settlement, with no loss of wage earning ability. Sims argued that he would not have entered into the settlement agreement had his employer informed him his employment would be terminated after the settlement was finalized.

¶ 14. The administrative law judge issued an order on September 16, 2004, finding Sims’ claims should be reopened. Ashley Furniture and Employers Insurance appealed this decision, arguing that the ALJ’s order was contrary to the law and overwhelming weight of the evidence.

¶ 15. The Commission overturned the decision by the ALJ, finding there was no “mistake” or “change in condition” within the meaning of Mississippi Code Annotated Section 71-3-53 (Rev.2000) that would require reopening Sims’ claims.

STANDARD OF REVIEW

¶ 16. The Mississippi Workers’ Compensation Commission is the fact finder in deciding compensation cases and its findings “are binding on all appellate courts so long as the decisions are supported by substantial evidence.” McCrimon v. Red Arrow Car Wash, 859 So.2d 395, 397-8(¶ 9) (Miss.Ct.App.2003). This Court will not disturb the findings of the Mississippi Workers’ Compensation Commission unless the findings are clearly erroneous and contrary to the weight of the evidence. Univ. of S. Miss. v. Gillis, 872 So.2d 60, 64(¶ 16) (Miss.Ct.App.2003). The Commission’s orders are reviewed to determine if substantial credible evidence exists to support the Commission’s rulings. Fleming Enter., Inc. v. Henderson, 741 So.2d 309, 313 — 14(1116) (Miss.Ct.App.1999).

ANALYSIS

Whether the Mississippi Workers’ Compensation Commission’s findings were supported by substantial evidence and not contrary to the overwhelming weight of the evidence or clearly erroneous.

¶ 17. The Commission relied on the authority of Section 71-3-53, in finding Sims did not have a right to have his claims reopened. Section 71-3-53 reads, in pertinent part, as follows:

Upon its own initiative or upon the application of any party in interest on the ground of a change in conditions or because of a mistake in a determination of fact, the commission may, at any time prior to one (1) year after date of the last payment of compensation ... review a compensation case, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation.

¶ 18. Sims argues that the Commission erred in determining his termination did not constitute a significant and material change in circumstances and mistake in fact, which would require a reopening of his compensation claims. He asserts that the loss of his employment and income was unforeseeable and a significant and material change in his economic condition.

¶ 19. Sims also argues that the settlement negotiations were not entered into in good faith and his employment was fraudulent. Sims suggests that Ashley acted in bad faith, in that it created a position for him and terminated that position shortly after obtaining a settlement of his workers’ compensation claim. Sims asserts that his termination also constitutes a change in fact and/or fraud in the negotiation of that contract. Sims’ allegations of bad faith and fraud would seem to be undercut by his own testimony. In his testimony before the Administrative Law Judge, Sims indicated that (1) all of the pillow turner positions were changed from an hourly compensation basis to an incentive (production) based compensation; (2) upon being informed of the changed basis for compensation, he informed his supervisor that he was unable to do the job; (3) only after he indicated his inability to do a job which was changed from an hourly wage to pay based upon production was he terminated.

¶20. The Commission overturned the decision by the ALJ, finding there was no “mistake” or “change in conditions” within the meaning of Mississippi Code Annotated Section 71-3-53 that would require reopening Sims’ claims. The Commission found that even after it reviewed the facts that were present at the time of the settlement agreement, it found that the settlement agreement was not based on any mistaken fact determination. The Commission pointed out that Sims was represented by counsel throughout the proceedings and his claims were settled for far more money than the value of his scheduled member impairment alone.

¶ 21. The Commission noted that the settlement seemed fair and reasonable at the time and in retrospect. While the Commission did consider Sims’ termination within days after the settlement agreement constituted “wholly new evidence,” the Commission found that this was not a mistake which warranted reopening of the settlement agreement. The Commission did not find any proof that Sims had a reasonable expectation of continued employment at the time he entered the settlement.

¶ 22. The Commission’s findings are supported by substantial evidence within the record. This Court does not find support that the Commission’s findings are clearly erroneous or contrary to the overwhelming weight of the evidence. This Court, therefore, is bound by the Commission’s findings of fact. Finding no error in the Commission’s denial of Sims’ right to reopen his compensation claims, the trial court’s decision is affirmed.

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

LEE AND MYERS, P JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.