author: ROBERTS, J.,

text:
    Richard LOTT, Appellant v. CITY OF BAY SPRINGS, Mississippi, Appellee.
    No. 2004-KM-02487-COA.
    Court of Appeals of Mississippi.
    Nov. 14, 2006.
    Rehearing Denied April 3, 2007.

      Thomas Quitman Brame, attorney for appellant.
    R.K. Houston, Jr., attorney for appellee.
    Before KING, C.J., CHANDLER, and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. Richard Lott was arrested at a road block on July 17, 2004, after refusing to give a breath test. After failing to attend his August 2, 2004, municipal court date, Lott was convicted in absentia, but claimed his court date was changed to September 6, 2004. As his time for direct appeal had passed, Lott filed his petition for writ of certiorari with the Circuit Court of Jasper County, which was subsequently denied. Lott now appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On the night of July 17, 2004, Lott was stopped at a road block on Summer-land Road, Bay Springs, Mississippi. Ronald Fall, one of the officers at the road block, noticed the smell of intoxicating beverages present and that Lott’s eyes were dilated. Fall asked Lott to take an Intoxi-lyzer test, to which Lott refused. Lott was subsequently ticketed, which showed an August 2, 2004 court date, and arrested. Following his arrest, Lott was bonded out of the Bay Springs jail. Lott claims he was informed that his court date was moved to September 6, 2004, as evinced by a handwritten note at the bottom of his ticket stating, “Court Sept. 6th 9 am.” As it turned out, Lott’s court date had not been changed, and on August 2, 2004, the case of Lott v. City of Bay Springs was heard in the Municipal Court of the City of Bay Springs. Having before it the ticket given to Lott and a document indicating that no breath test had been given because Lott refused, the court convicted Lott in absentia for driving under the influence. When Lott appeared in court on September 6, 2004, to challenge the charge against him, he discovered the August conviction. As the time for appeal allowed by Rule 12.02(a) of the Uniform Rules of Circuit and County Court had expired by the time Lott learned of his conviction, a direct appeal was not available. Having no other options, Lott filed his petition for writ of certiorari, pursuant to Mississippi Code Annotated Section 11-51-93, with the Circuit Court of Jasper County, which was denied. Aggrieved by this, Lott now appeals raising the following issues:

I. Whether the Bay Springs Municipal Court erred in its conviction of the Appellant in absentia.

II. Whether the Circuit Court erred in denying the Appellant’s Petition for Writ of Certiorari.

STANDARD OF REVIEW

¶ 3. Certiorari imports discretionary review, not review as a matter of right. Merritt v. State, 497 So.2d 811, 813 (Miss.1986). Therefore, the standard of review we must employ is an abuse of discretion standard. Id.

DISCUSSION

I. DID THE LOWER COURT ERR IN CONVICTING LOTT IN AB-SENTIA?

¶ 4. Lott argues that as a result of his court date supposedly being changed, the Municipal Court of the City of Bay Springs erred in convicting him in absen-tia. As a result, Lott continues, he was denied his constitutional right to a fair trial. At the discretion of the court, a conviction in absentia is allowed where the accused does not appear to defend himself. Miss.Code Ann. § 99-17-9 (Supp.2005). Lott’s uniform traffic ticket clearly stated that his case would be heard in the Municipal Court of the City of Bay Springs on August 2, 2004, at 9:00 a.m. On that date the court did in fact hear his case. The evidence before the municipal court included the original traffic ticket citing Lott, with no mention of a proposed change in the court date, a document indicating Lott refused to take a breath test, and a copy of Lott’s appearance bond. Lott had every opportunity to defend himself against the charge before him on August 2, and the documents before the court gave no indication that his day in court was postponed. Accordingly, the court had full authority to convict Lott despite his absence and it provided Lott with all constitutional guarantees and protections afforded to him. The fact that he did not take advantage of those guarantees and protections, and the resulting conviction, is Lott’s burden to bear.

¶ 5. Specifically, Lott was faced with a uniform traffic ticket which clearly listed his court date as August 2, 2004, and a handwritten alternative date explained by his family to be his new court date. Additionally, Lott stated in his petition for writ of certiorari “that he never received any other written notice of his court date, and was not aware of the exact court date under these circumstances, but relied on same as being set September 6, 2004.” Given Lott’s own confusion over the court date, which he now adamantly proclaims led to a violation of his constitutional rights, it would have been prudent to confirm the alleged August court date, which, as is painfully clear now, was not changed. Lott’s voluntary absence, be it as a result of a conscience decision not to attend or confusion over the correct court date brought about by statements from his family, cannot be cured by this Court.

II. DID THE CIRCUIT COURT ERR IN DENYING LOTT’S PETITION FOR WRIT OF CERTIO-RARI?

¶ 6. Lott’s argument that the circuit court erred in not granting his petition for writ of certiorari is similarly without merit. Mississippi Code Annotated Section 11-51-93 states, in pertinent part,

All cases decided by a justice of the peace, whether exercising general or special jurisdiction, may, within six months thereafter, on good cause shown by petition, supported by affidavit, be removed to the circuit court of the county, by writ of certiorari, which shall operate as a supersedeas, the party, in all cases, giving bond, with security, to be approved by the judge or clerk of the circuit court, as in cases of appeal from justices of the peace; and in any cause so removed by certiorari, the court shall be confined to the examination of questions of law arising or appearing on the face of the record and proceedings.

As the statute explicitly states, only a pure question of law is reviewable on certiorari. Merritt, 497 So.2d at 815. Despite the fact that Lott was convicted in municipal court rather than in a justice court, this language still applies to Lott’s petition for writ of certiorari through Mississippi Code Annotated § 11-51-95 which provides for “[Ijike proceedings as provided in Section 11-51-93 ... to review the judgments of all tribunals inferior to the circuit courtf.]”

¶ 7. Lott’s petition claimed that his conviction in absentia was “erroneously awarded and entered because [Lott] communicated, through [his mother, niece, and aunt], with the Chief of Police of the City of Bay Springs, Jimmy Herrington, and all understood that the case would be put off until September 6, 2004.” Specifically, Lott claimed Herrington, or some other officer, wrote “Court Sept. 6, 9 am” on the bottom of his citation. Finally, Lott was admittedly confused over the court date himself.

¶ 8. It is clear the issue Lott wished to bring before the circuit court through his writ was whether a police officer changed his court date, as evidenced by the writing on the bottom of his ticket. While Lott did attach to his writ a copy of his temporary driver’s license issued by the arresting officer with the phrase in question written on the bottom, this was not part of the record or proceedings from the court below. This alone would generally preclude the circuit court form considering the citation presented as it was not a part of the record or proceeding of the municipal court.

¶ 9. Lott cites Caruthers v. Panola County, 205 Miss. 403, 38 So.2d 902 (1949), for the proposition that the circuit court can, under limited circumstances, hear testimony that would reveal a error of law. Specifically, the Caruthers court stated,

We do not overlook the fact that certio-rari is a statutory remedy designed for the purpose of bringing into review the acts of an inferior tribunal upon the record made by such tribunal on questions of law, Sections 1206, 1207, Mississippi Code of 1942, but this court has held that upon the hearing in the reviewing court evidence may be heard to make manifest the error of law committed by the inferior tribunal. In the case of Gulf & S.I.R. Co. v. Adams, 85 Miss. 772, 38 So. 348, 349, it was said, “It is the peculiar province of the writ of cer-tiorari to correct errors of law apparent upon admitted or established facts. 4 Ency. Pl. & Pr. 11. It has been held by this court that evidence may be heard in the circuit court in order to make manifest error of law committed by the inferior tribunal. Robinson [Robertson] v. Mhoon, 68 Miss. 712, 9 So. 887.”

Caruthers, 205 Miss. at 418, 38 So.2d at 906. Lott’s reliance on Caruthers is somewhat misplaced. The supreme court later clarified the scope of the exception above in Mayor & Board of Aldermen v. White. 230 Miss. 698, 704-05, 93 So.2d 852, 854-55 (1957). In White, the supreme court explained by quoting a pre-Caruthers case that,

It is also the general rule that, under a writ of certiorari, the evidence on which the inferior court based its determination forms no part of the record, and should not be returned, unless required by statute or shall become essential by some extraordinary circumstances; as for instance, where the inferior tribunal acts beyond or in disregard of its lawful jurisdiction.

Id. (quoting Federal Credit Co. v. Zepernick Grocery Co., 153 Miss. 489, 491-92, 120 So. 173, 173-74 (1929)). Federal Credit Co., the case on which the White court relied, involved a petition for writ of certio-rari in the circuit court. Federal Credit Co., 153 Miss. at 490, 120 So. 173. The official transcript of the lower court was attached to the record filed with the petition, and a motion to strike the transcript was made on the hearing in certiorari. Id. In sustaining the motion to strike the transcript, the supreme court, applying the rule quoted above, held,

[U]nder a writ of certiorari from the circuit court to the county court, the return shall not as a general rule include a transcript of the evidence. We do not say that extraordinary circumstances, instances of which are shown in the books, will not justify a cautious exception; but such is not the case here. The motion to strike the stenographer’s transcript will be sustained.

Id. at 493, 120 So. 173. Federal Credit Co. would seem to stand for the proposition that the transcript of the lower tribunal’s proceedings should not generally be available for the reviewing court during a hearing on certiorari, with possible exceptions justified by extraordinary circumstances. Caruthers and White would expand on this exception by allowing, not only a transcript of the lower court’s proceedings under extraordinary circumstances, but also additional testimonial evidence to make manifest an error of law committed by the lower tribunal in acting outside its jurisdictional mandate. This was made clear in White when the supreme court stated “the [lower tribunal] here obviously had jurisdiction over the subject matter ... Hence there was no occasion whatever to take testimony in the hearing on certiorari.” White, 93 So.2d at 855. Therefore, during a hearing on certiorari, the only evidence that can be considered by the reviewing court, in addition to the “record and proceedings of the lower tribunal,” is evidence pertaining to the lower tribunal’s jurisdiction, or lack thereof, over the subject matter presented.

¶ 10. The authority granted to municipal courts is clear. “The municipal judge shall have the jurisdiction to hear and determine, without a jury and without a record of the testimony, all cases charging violations of the municipal ordinances and state misdemeanor laws made offenses against the municipality and to punish offenders therefor as may be prescribed by law.” Miss.Code Ann. § 21-23-7(1) (Rev. 2001). Obviously, the municipal court had the authority to hear Lott’s case. Lott does not dispute this, but argues that the circuit court should have allowed testimony pertaining to whether his trial date was changed. Given the limitations of the exception deduced above, this testimony would have been outside the scope of what a reviewing court may allow in a hearing on certiorari, and the circuit court in this case was correct in denying Lott the opportunity to present evidence. Therefore, given the record properly before the lower court, we find the circuit court did not abuse its discretion in dismissing Lott’s petition. Accordingly, we affirm.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF JASPER COUNTY DENYING LOTT’S PETITION FOR WRIT OF CERTIORARI IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


source: Caselaw Access Project

author: LEE, P.J.,

license: Public Domain

text:
    Kenneth ROBERTS, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-02331-COA.
    Court of Appeals of Mississippi.
    Dec. 5, 2006.
    Rehearing Denied April 24, 2007.

      Robert George Clark, John W. Christopher, Jeffrey Ellis, attorneys for appellant.
    Office of the Attorney General, by Desh-un Terrell Martin, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Kenneth Roberts and Southland Oil Company entered into a contract on March 26, 1998, in which Roberts would lease Southland’s bulk operating plant in Yazoo City. The parties also entered into a “Bulk Plant Operator’s Agreement” which gave the operator, Roberts, the right to market and sell various petroleum products owned by Southland in return for a monthly commission. Per the agreement, Roberts paid rent monthly and operated the plant as an independent contractor. Pertinent to this lawsuit, the agreement stated that Roberts could not extend credit on Southland’s accounts to customers who had not been approved for credit by Southland. Any losses caused by Roberts through negligence or bad business practices were deducted at the end of the month from his commission. Roberts operated the bulk plant facility until October 2002.

¶ 2. During the course of the lease, Roberts would extend credit to some customers who had not been approved for credit by Southland or would extend additional credit to customers over their approved limit. When payment was received from these customers Roberts would record it as a cash sale and report it to Southland. He used a separate invoice titled “Roberts Southland Oil” rather than “Southland Oil Co.” to record the non-approved sales. Southland knew of this practice. If the accounts came up short at the end of the month, Southland would deduct the deficiency from Roberts’s commission. The amount deducted was determined by the amount of fuel that had been taken from the tanks, which was determined by measuring the amount of fuel still in inventory at the end of the month. Southland became aggrieved when Roberts’s commission could not cover the deficiencies.

¶ 3. Southland filed a civil suit against Roberts in the County Court of Yazoo County in August 2003. On October 8, 2003, a default judgment in the amount of $51,703.40 was entered against Roberts after he failed to answer Southland’s complaint. The judgment reflected the amount of credit Roberts had extended to non-approved customers but which Roberts could not pay out of his commissions, plus prejudgment interest and attorney fees.

¶4. When Roberts failed to pay the default judgment, criminal charges were brought by the State. On May 28, 2004, a Yazoo County grand jury returned an indictment charging Roberts with seven counts of embezzlement. The seven counts reflected sales to seven customers with invoices titled “Roberts Southland Oil Co.” rather than the invoices of “Southland Oil Co.”

¶ 5. During trial in the Circuit Court of Yazoo City, Roberts moved for a directed verdict. The court denied the motion for directed verdict and found that the State had put forth a prima facie case on the charge of embezzlement.

¶ 6. On August 23, 2005, the jury found Roberts guilty of embezzlement on Counts I, TV, and V and not guilty as to the remaining counts. Roberts was sentenced to five years on each count to be served in the custody of the Mississippi Department of Corrections with the sentence in each count to run concurrently with each other. The sentence was to be suspended, conditioned upon one year of house arrest followed by four years of supervised probation. Roberts was also ordered to pay restitution to Southland Oil in the amount of $20,601.95 plus court costs.

¶ 7. Roberts appeals to this Court on the following issues: (1) the court erred in denying his motion for directed verdict; (2) the verdicts of guilty are against the overwhelming weight of the evidence and contrary to law; (3) the court erred in denying his motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial; (4) the court erred in granting the State’s requested jury instructions numbered S — 1, S-7, and S — 9; and (5) the court erred in denying his requested jury instructions numbered D-13, D-16, and D-17.

¶ 8. Finding that the elements of embezzlement were not met, we reverse and render.

I. DID THE CIRCUIT COURT ERR IN DENYING ROBERTS’S MOTION FOR DIRECTED VERDICT?

¶ 9. “A motion for a JNOV, a directed verdict, and a request for a peremptory instruction challenge the legal sufficiency of the evidence.” Anderson v. State, 874 So.2d 1000, 1003(¶ 7) (Miss.Ct.App.2004) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)).

¶ 10. 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.” Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (citing Carr v. State, 208 So.2d 886, 889 (Miss.1968)). The relevant question for this Court to ask itself 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.

¶ 11. On appeal, the proper remedy is to reverse and render where 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.” Id. (citing Edwards v. State, 469 So.2d 68, 70 (Miss.1985)). However, the evidence will be deemed to have been sufficient if “reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense.” Id.

¶ 12. For Roberts’s conviction to stand, the elements of embezzlement must be met. Embezzlement is the wrongful conversion of property lawfully possessed by the person charged. Medley v. State, 600 So.2d 957, 960 (Miss.1992); Sisk v. State, 294 So.2d 472, 474 (Miss.1974). The statute defining embezzlement, Mississippi Code Annotated section 97-23-19 (Rev’. 2006), states, in relevant part:

If any director, agent, clerk, servant, or officer of any incorporated company, or if any trustee or factor, carrier or bail-ee, or any clerk, agent or servant of any private person, shall embezzle or fraudulently secrete, conceal, or convert to his own use, or make way with, or secrete with intent to embezzle or convert to his own use, any goods, rights in action, money, or other valuable security, effects, or property of any kind or description which shall have come or been intrusted to his care or possession by virtue of his office, place, 'or employment, either in mass or otherwise, with a value of Five Hundred Dollars ($ 500.00) or more, he shall be guilty of felony embezzlement, and, upon conviction thereof, shall be imprisoned in the Penitentiary not more than ten (10) years, or fined not more than Ten Thousand Dollars ($ 10,000.00), or both....

¶ 13. The State’s main argument is that Roberts committed embezzlement when he sold products to non-approved customers under invoices titled “Roberts Southland Oil Co.” rather than “Southland Oil Co.”

¶ 14'. Counts I and IV of the indictment charged Roberts with embezzling from Southland by advancing credit to Hunter Sand & Gravel and Heart of the Delta, respectively, both non-approved customers. Count V of the indictment charged Roberts with selling fuel to himself and converting Southland’s products to his own use by invoicing the sale in the name of Roberts Southland Oil Co. To the extent that funds were available, the shortages were taken out of Roberts’s commission at the end of the month. Southland knew that Roberts occasionally extended credit to non-approved customers and even made provisions for it in the operator’s agreement:

Operator shall not extend credit for Southland’s account to any customer without first securing permission in writing from Southland so to do, and operator shall withdraw any credit so extended when directed by Southland. Operator shall be liable to Southland for any loss sustained because of a violation of these provisions. Southland is authorized, at its option, to charge Operator the invoice value to customers of products delivered in violation of such provisions, and Southland shall have the ■right to deduct and retain for its own use said invoice value from any monies that may then be due or which may thereafter become due Operator with such deduction being considered and accepted by Operator as payment of commission hereunder. In the event Operator is indebted to Southland upon any account, whether the indebtedness shall arise under this Agreement or as a result of any other contract, obligation, or reason whatsoever, Operator agrees that Southland shall have the right to deduct, from any monies due or to become due Operator, such amounts as may be necessary to satisfy or offset such indebtedness, either in whole or in part.

¶ 15. Embezzlement requires “the wrongful appropriation or conversion of property where the original taking was lawful or with the consent of the owner.” Howington v. State, 256 So.2d 382, 383-84 (Miss.1972). The State has shown no attempt by Roberts to wrongfully convert Southland’s products to his own use. Roberts made some bad business decisions by extending credit to customers who could not pay and is liable to Southland for those debts, but Roberts did not intend to embezzle or appropriate Southland’s products to his own use. The deficiencies in payment on credit by the non-approved customers were deducted by agreement from Roberts’s commission. Southland did not complain until Roberts got in over his head and the debt accrued to more than could be covered by his commissions.

¶ 16. The case at hand is more akin to amassing a civil debt than embezzlement. Taking the evidence in the light most favorable to the State, sufficient evidence has not been shown to sustain a conviction for embezzlement. The trial court erred in denying Roberts’s motion for a directed verdict.

II. WERE THE GUILTY VERDICTS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW?

III. DID THE TRIAL COURT ERR IN DENYING ROBERTS’S MOTION FOR A JNOV OR, IN THE ALTERNATIVE, FOR A NEW TRIAL?

¶ 17. Having found that the elements of embezzlement were not met to sustain a conviction, we decline to discuss issues two and three.

IV. DID THE TRIAL COURT ERR IN GRANTING THE STATE’S REQUESTED JURY INSTRUCTIONS S-l, S-7, AND S-9?

V. DID THE TRIAL COURT ERR IN DENYING ROBERTS’S REQUESTED JURY INSTRUCTIONS D-13, D-16, D-17?

¶ 18. Having found that the elements of embezzlement were not met to sustain a conviction, there is no need to discuss whether the jury instructions incorrectly stated the law.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF YAZOO COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO YAZOO COUNTY.

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


author: GRIFFIS, J.,

text:
    Muriel PENNY, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01543-COA.
    Court of Appeals of Mississippi.
    Dec. 12, 2006.
    Rehearing Denied April 10, 2007.

      David L. Walker, attorney for appellant.
    Office of the Attorney General by Jeffrey A. KLingfuss, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Muriel Penny appeals his conviction of child fondling. He was sentenced to serve fifteen years, with nine years suspended. On appeal, Penny argues that: (1) he was denied his right of confrontation when the trial court allowed a video statement given by the victim, (2) the victim was not competent to testify, and (3) the trial court erred in qualifying a State’s witness as an expert in forensic examination. We find no error and affirm.

FACTS

¶ 2. Penny was indicted for two counts of sexual battery of a six-year old minor, whom we refer to as Jane. The first count was based on an incident that occurred between April and September 27, 2004. The second count was based on an incident alleged to have occurred on September 28, 2004.

¶ 3. Jane testified at trial. In addition, the trial court allowed the jury to view a videotaped interview of Jane, which included a statement of her allegations against Penny. The videotape was a preplanned interview. Neither Penny nor his counsel were given notice of the video. The district attorney prepared the video to play in court in lieu of Jane’s live testimony. In her direct examination, the State did not have Jane recount her allegations. She was only asked whether she saw the video and whether she told the truth on it. During redirect, the State did have Jane go into a description of her charges against Penny. Penny was allowed to re-cross on this issue. The video was allowed to be played before the jury, because Jane had given a more detailed account in the video than she had in court.

¶ 4. Jane’s friend, Sydatrius Futrell testified that she saw Penny put his hand on Jane’s “private” over her clothes.

¶ 5. The State called nurse Sally Discen-za as an expert witness. Discenza testified that there were signs of penetration, but they were not recent and did not indicate continuous abuse. Jane was examined September 29, 2004. Discenza testified that the mother reported that Jane had been sexually abused two years prior, by another individual. Jane’s mother explained that all she meant by this was that a little boy had pulled her daughter’s pants down.

¶ 6. Dr. Tracy Barrett testified that Jane’s injuries were consistent with her complaints, but were also consistent with a straddle injury.

¶ 7. The jury found Penny guilty of the lesser-included offense of child fondling based on Count I and not guilty on Count II.

STANDARD OF REVIEW

¶ 8. The standard of review regarding the admission or exclusion of evidence is abuse of discretion. Yoste v. Wal-Mart Stores, Inc., 822 So.2d 935, 936(¶ 7) (Miss.2002). Any error in the admission or exclusion of evidence is not grounds for reversal unless the error adversely affected a substantial right of a party. Lynch v. State, 877 So.2d 1254, 1281(¶ 86) (Miss.2004). Constitutional issues are reviewed de novo. Thoms v. Thoms, 928 So.2d 852, 855(¶ 9) (Miss.2006).

ANALYSIS

I. Did the trial court err in admitting Jane’s videotaped interview into evidence?

¶ 9. Penny first argues that the trial court denied him his right to confrontation when it allowed Jane’s videotaped statement into evidence. Penny also argues that the admission violated the Mississippi Rules of Evidence. The State argues that Penny was allowed to cross-examine Jane on the stand, and the video was admissible under the tender years hearsay exception.

A. Right to confrontation

¶ 10. In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. U.S. Const, amend VI; Miss. Const, art. 3, § 26. This right applies to in-eourt testimony as well as out-of-court statements. Crawford v. Washington, 541 U.S. 36, 50-51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

¶ 11. We do not find a violation of Penny’s right to confrontation. Here, Jane testified, and Penny’s counsel was allowed both cross-examination and recross-examination. The concern was caused by the manner in which the State offered Jane’s testimony. Indeed, the State called Jane as a witness and asked her questions about her background, her understanding of the concept of telling the truth along with the consequences of not telling the truth and whether she told the truth in the interview with the social worker. The State then tendered the witness. Defense counsel asked her a number of background questions then asked for a conference in chambers. Defense counsel then raised the point that there would be a Crawford violation if the video was played after his right to cross-examine Jane. The trial judge expressed his concern with the sequence of the presentation of the evidence. The court then stated, on the record, “I will permit you [defense counsel] to recall the child after the playing of the video.” Then, in the presence of the jury, defense counsel asked Jane several more questions. The State then was allowed redirect examination, where Jane testified that Penny pulled down her panties and stuck his “hand in” her “private part.” Defense counsel was then allowed recross-examination. The State then called the social worker and played the videotape during her testimony. After the videotape was played, the record does not indicate that Penny ever attempted to recall Jane.

¶ 12. The test for whether a defendant’s right of confrontation has been violated by introduction of out-of-court statements depends on whether the statements are testimonial or non-testimonial. Id. at 68, 124 S.Ct. 1354. Therefore, we must first classify Jane’s video statement. “[A] statement is testimonial when it is given to the police or individuals working in connection with the police for the purpose of prosecuting the accused.” Hobgood v. State, 926 So.2d 847, 852(¶ 12) (Miss.2006). Jane’s statement was given on videotape to her social worker, on behalf of and at the request of the assistant district attorney. The sole purpose of the taped statement was to present it at trial in lieu of live testimony. The purpose of playing it after Jane’s in-court testimony was to allow her to give more details on the videotape than she did while on the stand. Jane’s video statement is testimonial.

¶ 13. Prior testimonial statements are not admissible under the Sixth Amendment unless the witness is (1) unavailable at trial and (2) the defendant had a prior opportunity for cross-examination. Crawford, 541 U.S. at 68, 124 S.Ct. 1354. “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” Id. at 68-69, 124 S.Ct. 1354. “Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.” Id. at 62, 124 S.Ct. 1354.

¶ 14. This Court recently had the opportunity to apply the Crawford rule to a factually similar case in Elkins v. State, 918 So.2d 828 (Miss.Ct.App.2005). Elkins was indicted for one count of sexual battery and one count of fondling against a minor. Id. at 830(¶4). The minor testified at trial that “Elkins performed oral sex on her on a regular basis.” Id. Elkins denied the oral sex, but admitted to accidentally touching her bottom. Id. at 830-31(¶ 5). The jury acquitted him on sexual battery but found him guilty of fondling. Id. at 831(¶ 5). Elkins appealed and argued that the trial court violated his right to confrontation when it allowed a social worker to testify to the minor’s out-of-court statements. Id. at 832(¶ 10). This Court distinguished Crawford:

Under Crawford, the confrontation clause is violated when a hearsay declar-ant is available to testify at the trial, but does not do so, and the defendant lacked an opportunity to cross-examine the de-clarant on a prior occasion. Unlike the scenario condemned in Crawford, in the present case, P.B. testified at the trial and Elkins cross-examined her. Therefore, his right to confront P.B. was preserved ....

Id. at 832(¶ 12) (citations omitted).

¶ 15. Like the minor victim in Elkins, Jane testified in court and recounted her allegations. Penny likewise cross-examined her at trial on this point and had the opportunity to re-cross her after the video was played for they jury. Elkins may be distinguished slightly. Indeed, here the reason the prosecution offered the videotape as evidence was because Jane gave more details on the videotape than she did in her trial testimony. However, the only added details were that Penny was in the bathroom while she was watching “Dora the Explorer,” and the sexual battery happened after Penny came out of the bathroom. At trial, Jane gave an identical account of this incident but left out the detail of watching television and said she could not remember the detail of the bathroom.

¶ 16. To the extent that the video statement duplicated Jane’s in court testimony, there was clearly no denial of the right to confrontation. To the extent that the video statement added new information, there was still no denial of the right to confrontation, because Penny had the opportunity for re-cross-examination after the statement was entered.

B. Tender years hearsay exception

¶ 17. While a particular hearsay statement may not violate the Confrontation Clause, it may offend state hearsay rules. Crawford, 541 U.S. at 51, 124 S.Ct. 1354. “Hearsay is not admissible except as provided by law.” M.R.E. 802. One such exception is known as the tender years exception:

A statement made by a child of tender years describing any act of sexual contact performed with or on the child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness: provided, that when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

M.R.E. 803(25). There is a rebuttable presumption that children under twelve are of tender years. Veasley v. State, 735 So.2d 432, 436(¶ 16) (Miss.1999). The indi-cia of reliability must be shown from the totality of the circumstances that surround the making of the statement. Garrison v. State, 726 So.2d 1144, 1148 (Miss.1998). Corroborating evidence may not be used as indicia of reliability. Idaho v. Wright, 497 U.S. 805, 823, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). Some factors that the trial court should look at to determine indicia of reliability are (1) whether the child has an apparent motive to lie, (2) the child’s general character, (3) whether more than one person heard the statement, (4) whether the statements were made spontaneously, (5) the timing of the declarations, (6) the relationship between the child and the witness, (7) the possibility of the child’s faulty recollection is remote, (8) certainty that the statements were made, (9) the credibility of the person testifying about the statements, (10) the age or maturity of the child, (11) whether suggestive techniques were used in eliciting the statement, and (12) whether the child’s age, knowledge, and experience make it unlikely that the child lied. M.R.E. 803(25) cmt.

¶ 18. Penny challenges the spontaneity and timing of the statements. He says it was a preplanned interview, taken months after the alleged crime. The trial court found the statements were not the product of prompting or leading questions. He noted that the prosecutor was not present when the statements were made. The statements were made from Jane to Melissa Essary, a counselor from Mississippi Department of Human Resources. We hold the trial court did not abuse its discretion. The taped statement is of an interview between Jane and her counselor. Jane’s statements were responses to Es-sary’s open-ended questions. There is no evidence that Essary or anyone else suggested what Jane’s responses should be. This issue has no merit.

C. Requirement that testimony he given under oath

¶ 19. Finally, Penny argues that the video statement violates the requirement that testimony be given under oath.

¶20. Rule of Evidence 603 requires that testimony be given under oath; however, the video statement was not. The video statement, with the two exceptions noted above, was duplicative of Jane’s in-court testimony, which was given under oath. Additionally, Jane swore under oath, in court, that she had viewed the video and that she told the truth in the video. Thus there is merit to Penny’s contention that Jane’s testimony was not under oath.

¶21. Even had Jane not so testified, there would be no Rule 603 problem. The introduction of Article VIII, Hearsay, of the Mississippi Rules of Evidence explains the relationship between this requirement and the law of hearsay:

A witnesses] testimony is evaluated on the basis of four factors: perception, memory, narration, and sincerity. In order that the testimony can be properly considered in the light of these factors, the testimony should comply with three conditions. The witness should testify (1) under oath, (2) in the presence of the trier of fact, and (8) be subjected to cross-examination. Past experience as well as common sense indicate that some testimony which does not conform to these three conditions may be more valuable than testimony that does. The four factors may, in some instances, be present in the absence of compliance with the three aforementioned conditions. The solution that the common law developed over a period of time was a general rule against hearsay which permitted exceptions which furnished guarantees of trustworthiness and reliability.
.... The concluding provisions of both Rule 803 and 804 (803(24) and 804(b)(5) respectively) allow for the use of hearsay statements which do not fall within the recognized exceptions, when the guarantees of trustworthiness and necessity are present. These two provisions are a recognition that the law is not stagnant; they are designed to encourage the development of this area of the law.

¶ 22. “The two underlying reasons for any exception to the hearsay rule are ... necessity ... and a circumstantial guaranty of the trustworthiness of the offered evidence — that is, there must be something present which the law considers a substitute for the oath.... ” Hercules, Inc. v. Walters, 434 So.2d 723, 726 (Miss.1983). Thus, hearsay exceptions allow for the admissibility of certain statements, regardless of the fact that they might otherwise violate Rule 603. We note that the tender years exception is not a traditional hearsay exception. Before the tender years exception was established, however, children’s out-of-court statements regarding sexual abuse were evaluated under the residual hearsay exceptions. See, e.g., Quimby v. State, 604 So.2d 741, 746 (Miss.1992); Mitchell v. State, 539 So.2d 1366, 1370 (Miss.1989). This issue has no merit.

II. Was Jane competent to testify ?

¶ 23. The next argument Penny raises is that the trial court erred in declaring Jane competent to testify. He asserts that she did not know what it meant to tell the truth and did not understand the consequences of perjury. He also argues that Jane did not exhibit the ability to remember events. He does not challenge her ability to answer questions intelligently. The State counters that the trial court was correct.

¶ 24. The question of whether a witness is competent to testify is left to the sound discretion of the trial court. Barnes v. State, 906 So.2d 16, 20(¶ 15) (Miss.Ct.App.2004). A child is competent to testify if the court ascertains that the child possesses “the ability to perceive and remember events, to understand and answer questions intelligently and to comprehend and accept the importance of truthfulness.” Mohr v. State, 584 So.2d 426, 431 (Miss.1991). “The trial court is afforded great deference in its determination that a child witness is competent to testify.” Williams v. State, 859 So.2d 1046, 1049(¶ 14) (Miss.Ct.App.2003). In order to prevail, Penny “must show that at the time the court made its initial decision that it was apparent that the witness did not meet the criteria for testifying, not that the subsequent testimony was flawed or that the initial determination was possibly erroneous.” Id.

¶ 25. The trial court conducted an in camera hearing on Jane’s competency the day before she testified. The trial court, prosecutor, and defense counsel examined Jane.

¶26. During the interview, Jane recounted what grade she was in, who her teacher was last year, the fact that her mother saw her last report card, the age of her younger sister, and with whom she lives. She did not remember what her grades were last year or any names except for her own, her mother’s name, and both her grandfathers’ names. On this record, we hold that the trial court did not abuse its discretion in finding Jane had the ability to perceive and remember events.

¶ 27. Jane also exhibited the ability to comprehend and accept the importance of truthfulness during the interview. She said that telling a lie was telling something that you made up. She said telling the truth was telling what really happened. Jane told the court that telling a lie was wrong, and telling the truth was right. She said that punishment was the consequence of telling a lie. She promised to tell the truth in the courtroom. She said if she did not remember, she was supposed to say, “I forgot.” The only evidence that she did not understand the consequences of telling a lie was when the defense counsel asked her, “What would happen to you if you didn’t tell the truth?” She answered, “I forgot it.” Given her earlier answers, the court found she understood and accepted the importance of telling the truth. We agree.

¶28. The trial court did not abuse its discretion in finding Jane competent to testify.

III. Was Discenza qualified to testify as an expert in sexual assault examination?

¶ 29. Finally, Penny challenges whether Discenza was competent to testify as an expert witness. Discenza’s testimony was that Jane had been sexually penetrated. Her opinion was based on the history given by Jane, her mother, as well as Discen-za’s physical examination of the child. The jury found she had not been penetrated, because it acquitted Penny of both counts of sexual battery. This was no doubt the result of cross-examination in which Dis-cenza testified the child had a prior history of sexual abuse and there were no recent or continuous signs of penetration. The exam was conducted the day after the last alleged occurrence.

¶ 30. Any error in the admission or exclusion of evidence is not grounds for reversal unless the error adversely affected a substantial right of a party. Lynch, 877 So.2d at 1281(¶ 86). We need not decide whether Discenza was qualified, because her testimony did not adversely affect a substantial right. If anything, her testimony helped Penny’s case.

¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF TATE COUNTY OF CONVICTION OF FONDLING AND SENTENCE TO SERVE FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE LAST NINE YEARS SUSPENDED PENDING THE DEFENDANT’S FUTURE GOOD BEHAVIOR IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . To protect the identity of the victim and her family, we use a fictitious name.


text:
    Gregory J. DEAR a/k/a Gregory Dear a/k/a Greg Dear, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-02281-COA.
    Court of Appeals of Mississippi.
    Dec. 12, 2006.
    Rehearing Denied April 17, 2007.

      Dan W. Duggan, Brandon, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, C.J., CHANDLER and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. On August 31, 2004, a jury sitting before the Rankin County Circuit Court found Gregory Dear guilty of one count of sale of cocaine and one count of conspiracy to deliver cocaine. Convicted as a habitual offender under section 99-19-81 of the Mississippi Code, the circuit court sentenced Dear to a sixty year sentence on the sale charge and a twenty year sentence on the conspiracy charge. The circuit court set the sentences to run concurrently. Aggrieved, Dear appeals and seeks resolution of two issues, listed verbatim:

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN NOT GRANTING THE MOTION FOR NEW TRIAL, OR IN THE ALTERNATIVE, JUDGMENT NOTWITHSTANDING THE VERDICT.

II. TRIAL COUNSEL WAS INEFFECTIVE IN PROPOSING JURY INSTRUCTION D-2.

Finding no error, we affirm.

FACTS

¶ 2. The federal government’s Office of National Drug Control Policy designates certain areas of the country as High-Intensity Drug Trafficking Areas (HIDTA). Through the HIDTA program, the federal government provides resources to state and local agencies that focus on narcotics crimes. This case centers on events involving a HIDTA controlled narcotics purchase in the surrounding suburban areas of Jackson, Mississippi.

¶ 3. The events that set Dear’s conviction into motion originated during the late part of 2002. It was then that Agent Barry Coward of the Mississippi Bureau of Investigation met Jason Warren and started buying cocaine from him. Agent Coward sought to purchase two ounces of crack cocaine from Warren. To that end, Agent Coward and Warren agreed to meet at a designated place on March 6, 2003.

¶ 4. Prior to their arranged meeting, Warren contacted Agent Coward and reported that he could not obtain crack cocaine. However, Warren told Agent Coward that he could obtain powdered cocaine. Agent Coward agreed to purchase the powdered cocaine. Warren and Agent Coward agreed to meet at a designated site. Prior to his meeting with Warren, Agent Coward met with the other local associated HIDTA officers and planned their operation.

¶ 5. Outfitted with transmitting and recording equipment, Agent Coward waited for Warren at their agreed meeting site. Warren, however, did not show up. The officers contacted a confidential informant and discovered that Warren had George Keyes and Greg Dear with him. Warren did not meet Agent Coward because Warren or someone with him recognized a local narcotics officer at the meeting site. Instead, Warren returned to his home.

¶ 6. The officers returned to the local HIDTA office and prepared to “shut down” operations based on Warren’s failure to appear at the meeting area. However, Warren called Agent Coward and agreed to meet at a different location — the Flying J truck stop in Flowood, Mississippi. Warren informed Agent Coward that two other people might accompany him.

¶ 7. Again, the various HIDTA associated officers took up strategic positions at the Flying J in anticipation of Agent Coward’s drug purchase. Agent Coward again waited for Warren. Again, Warren never appeared. However, Warren did not want to take part in the exchange, so Warren sent others on his behalf. In particular, he sent his roommate, Greg Dear, and George Keyes. While Dear waited in the car, Keyes and Agent Coward conducted the exchange.

¶ 8. Agent Coward sat in his car in the parking lot and waited. Keyes walked up to Agent Coward’s car, tapped on the window, and got into Agent Coward’s car. Keyes gave Agent Coward two ounces of powdered cocaine. In exchange, Agent Coward gave Keyes $1,600. After the exchange, the other officers moved in to arrest Keyes.

¶ 9. Keyes spotted the officers as he left Agent Coward’s car. Intent on evading arrest, Keyes broke and ran across the parking lot and the adjacent four lane highway. Keyes escaped down an embankment into a low-lying wooded area and successfully evaded capture that evening. According to Keyes’s trial testimony, he followed a set of railroad tracks to Mendenhall, Mississippi, where his girlfriend lived. Authorities captured Keyes at his girlfriend’s house the next day.

¶ 10. Greg Dear did not fare as well as Keyes in evading capture. At trial, a hotly disputed issue was whether Dear attempted to leave the scene. In the light most favorable to the State, Dear attempted to leave the parking lot, but was unsuccessful because officers used their patrol cars to block his escape.

PROCEDURAL HISTORY

¶ 11. On September 10, 2003, the Rankin County grand jury returned an indictment against Dear. That indictment charged Dear with one count of selling cocaine in violation of section 41-29-139 of the Mississippi Code and one count of conspiracy to sell cocaine in violation of section 97-1-1 of the Mississippi Code. On October 17, 2003, Dear filed a waiver of arraignment and pled not guilty to the charges against him. Accordingly, the matter proceeded to trial.

¶ 12. Dear’s trial commenced on July 19, 2005. The State called six witnesses, including Agent Coward and George Keyes. After the State ceased its case-in-chief, Dear took the stand. The jury found Dear guilty of both sale of cocaine and conspiracy to sell cocaine. Posttrial, Dear filed unsuccessful motions for JNOV or, alternatively, for a new trial. Dear appeals the circuit court’s denial of his posttrial motions.

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN NOT GRANTING THE MOTION FOR NEW TRIAL, OR IN THE ALTERNATIVE, JUDGMENT NOTWITHSTANDING THE VERDICT.

¶ 13. In his first issue, Dear challenges both the weight and sufficiency of the evidence against him. In appealing the circuit court’s decision to overrule his motion for JNOV, Dear challenges the sufficiency of the evidence. Pratt v. State, 870 So.2d 1241(¶ 3) (Miss.Ct.App.2004). In -reviewing the sufficiency of the evidence, we consider all the evidence in the light most favorable to the State. Id. at (¶ 4). We-accept as true any credible evidence consistent with Dear’s guilt. Id. We give the State the benefit of all favorable inferences that may be reasonably drawn from the evidence. Id. We presume that the jury resolved questions regarding the weight and credibility of the evidence. Id. We may only reverse when, with respect to at least one of the elements of the offense, the evidence is such that no reasonable and fair-minded jury could find Dear guilty. Id.

¶ 14. In appealing the circuit court’s decision to overrule his motion for a new trial, Dear challenges the weight of the evidence. Sullivan v. State, 749 So.2d 983(¶ 25) (Miss.1999). As we consider the weight of the evidence, we accept evidence that supports the verdict as true and we will reverse only if the circuit court abused its discretion in failing to grant a new trial. Id. at (¶ 20). The State gets the benefit of all favorable inferences reasonably drawn from the evidence. Id. We will reverse if the verdict is so contrary to the overwhelming weight of the evidence to the degree that an unconscionable injustice would result if we did not disturb the circuit court’s decision. Id. What is more, we will not re-weigh the facts so as to substitute our interpretation of witness credibility for the jury’s. Id.

¶ 15. It is important to note that the jury found Dear guilty of both selling cocaine and conspiring to sell cocaine. It appears that Dear challenges the weight and sufficiency of both convictions, though he does not frame his arguments to the specific elements of either conviction. Instead, Dear merely states that “[t]he facts demonstrate how the evidence is insufficient to support conviction in the case.” Notwithstanding Dear’s nonspecific assertions, we assume he uses the same argument incident to either conviction. In any event, Dear’s argument under this issue is based on four points: (1) he had a plausible explanation for his being at the Flying J with Keyes, (2) no evidence indicated that he took part in the exchange at the Flying J, (3) there was conflicting evidence as to whether he attempted to evade capture, and (4) because Keyes testified as a convicted felon, his testimony was not credible.

A. Conspiracy

¶ 16. If two or more people conspire to commit a crime, each of them is guilty of conspiracy, a felony. Miss. Code Ann. § 97-l-l(a)(h) (Rev.2000). To prove a prima facie case of conspiracy, the State bears the burden of proving, beyond a reasonable doubt, that the conspirators recognized that they entered into a common plan and knowingly intended to further the plan’s common purpose. Franklin v. State, 676 So.2d 287, 288 (Miss.1996). Circumstantial evidence is acceptable proof as to whether the alleged participants formed a conspiracy. Id. Likewise, circumstantial evidence is acceptable proof as to whether a defendant was a member of a conspiracy. Id.

¶ 17. To convict a defendant for conspiracy, the State must prove that the alleged conspirators formed a “union of the minds.” Id. As for the necessary conspiracy agreement, it need not be a formal or express agreement. Id. Rather, a conspiracy agreement may be inferred from the circumstances by “declarations, acts, and conduct of the alleged conspirators.” Id.

¶ 18. Keyes testified that, after the failed attempt to meet at the initial agreed-upon site, he, Warren, and Dear went back to Warren and Dear’s house. Keyes also testified that, after Warren spoke to Agent Coward and agreed to meet at the Flying J, Warren and Dear discussed the upcoming meeting with Dear. In particular, Keyes testified as follows:

Q. What were [Warren and Dear] talking about?
A. Like they were going to make a sale.
Q. A sale of what?
A. Cocaine.

¶ 19. Keyes’s testimony indicates that Warren and Dear formed a union of the minds intent on selling cocaine to Agent Coward. What is more, Dear’s conduct amounts to circumstantial evidence of an agreement with Warren to sell cocaine. Keyes testified that Dear drove to the Flying J and that he rode with Dear. Additionally, Keyes testified that he did not know that the Flying J was the agreed-upon site until Dear made him aware it. Finally, Keyes testified that Dear took the cocaine from Warren, Dear put the cocaine in the car they drove to the Flying J, Dear took the cocaine out from under the passenger seat when they arrived at the Flying J, and Dear gave him the cocaine to deliver to Agent Coward in exchange for money.

¶ 20. Considering Keyes testimony, we do not find that the circuit court erred when it overruled Dear’s motion for JNOY. Keyes’s testimony, viewed in the light most favorable to the verdict, certainly indicates that a reasonable and fair-minded jury could find Dear guilty of conspiracy to sell cocaine. For the same reasoning, we do not find that the circuit court abused its discretion when it overruled Dear’s motion for new trial. As such, we affirm.

B. Sale

¶21. Dear challenges the weight and sufficiency of the evidence that he sold cocaine. “Except as authorized by this article, it is unlawful for any person knowingly or intentionally ... [t]o sell, barter, transfer, manufacture, distribute, dispense or possess with intent to sell, barter, transfer, manufacture, distribute or dispense, a controlled substance.... ” Miss.Code Ann. § 41-29-139(a)(l) (Rev.2005).

¶ 22. “[T]he State is not required to prove that the seller of a controlled substance personally placed the substance in the hands of the buyer or even knew the buyer prior to the sale.” Sullivan v. State, 749 So.2d 983(¶ 27) (Miss.1999). Section 41-29-139(a)(1) requires that the State prove only that Dear knowingly or intentionally transferred a controlled substance. Id. “[A] person who consents to the commission of a crime and knowingly does an act which aids, assists or encourages that crime, or does any act which leads to its commission, is tried as a principal.” Id.

¶ 23. Even minimal involvement in an illegal drug transaction is sufficient to support a criminal conviction for drug trafficking. Flowers v. State, 726 So.2d 185, 187(¶ 11) (Miss.Ct.App.1998). Merely aiding in the consummation of a drug transaction can result in guilt as a principal. Id. The State is not required to prove that a defendant had control over the substance or that a defendant profited from a transaction. Id. It is enough to show that a defendant aided and abetted another in making the sale. Id.

¶ 24. Keyes testified that Dear took cocaine from Warren, placed it in a car, rode with it to the Flying J, and gave it to Keyes to deliver to Agent Coward. True enough, no testimony indicated that Keyes conducted the actual transaction with Agent Coward. Even so, involvement as a courier is sufficient conduct to support a conviction for sale of cocaine. Edwards v. State, 878 So.2d 1106, 1109(¶ 11) (Miss.Ct.App.2004). Accordingly, a reasonable jury could certainly find Dear guilty of selling cocaine. As such, the circuit court did not err when it overruled Dear’s motion for JNOV. Nor did the circuit court abuse its discretion when it overruled Dear’s motion for a new trial. We therefore affirm.

II. TRIAL COUNSEL WAS INEFFECTIVE IN PROPOSING JURY INSTRUCTION D-2.

¶25. Dear takes issue with jury instruction D-2. D-2 stated, “The Court instructs the Jury that the testimony of a co-defendant may be considered as evidence, but the testimony of the co-defendant should be considered with caution.” Dear claims his trial counsel was ineffective for submitting instruction D-2 because, according to Dear, precedent dictates that the instruction should have instructed the jury to consider Keyes’s testimony “with great care, caution, and suspicion.” See Finley v. State, 725 So.2d 226 (¶¶ 17-18) (Miss.1998); Derden v. State, 522 So.2d 752, 754 (Miss.1988).

¶ 26. When reviewing claims of ineffective assistance of counsel, this Court utilizes the two-prong standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). One who asserts ineffective assistance of counsel must demonstrate (1) that his counsel’s performance was deficient and (2) that his counsel’s deficient performance caused him prejudice. Schmitt v. State, 560 So.2d 148, 154 (Miss.1990). Such a claimant faces a presumption that his counsel was competent, that his counsel rendered reasonably professional assistance, and that decisions made during trial are strategic. Id. This is a rebuttable presumption, however, and may be accomplished by a demonstration of a reasonable probability that, but for his attorney’s unprofessional errors, the results of the proceeding would have been different. Id.

¶ 27. In the context of Dear’s assertion, Dear must demonstrate that his attorney was deficient in having the jury instructed that it must consider Keyes’s testimony “with caution” instead of “great care, caution, and suspicion.” Then, Dear must demonstrate that, but for the discrepancy in the language of the tendered instruction, as opposed to the alternative instruction, the jury would not have returned a guilty verdict against him.

¶ 28. First, we find that Dear cannot satisfy the first Strickland prong. Dear’s attorney, by failing to include the words “great,” “care,” and “suspicion” with the word “caution” did not render deficient legal representation. Though the instruction did not contain the surplus cumulative language as found in the suggested instruction, the substance of the instruction was still present. We are not prepared to hold that a matter of semantic variation overcomes the presumption of competency and professionalism when the substance of a suggested instruction is present in the given instruction.

¶ 29. Assuming for the sake of argument that Dear overcame the first Strickland prong, which we do not hold, Dear would not be able to overcome the second Strickland prong. There is no indication that the jury would return a verdict of “not guilty” had the instruction contained the cumulative language Dear suggests. The jury was instructed that it was to weigh Keyes’s testimony “with caution.” In singling out Keyes’s testimony and instructing the jury to weigh it with caution, the jury understood that it was to remain suspicious of Keyes’s testimony and to weigh it with care. Accordingly, Dear fully fails to present a prima facie demonstration of ineffective assistance of counsel.

¶ 30. To clarify, we do not hold that it is an error of law to advance an instruction that the testimony of the co-defendant should be considered with “great care, caution, and suspicion.” We merely hold that Dear’s counsel did not render inefficient assistance by omitting “great care” and “suspicion.” As such, we find this issue meritless.

¶ 31. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, SALE OF COCAINE, AS A NONVIOLENT HABITUAL OFFENDER AND AS A SUBSEQUENT DRUG OFFENDER AND SENTENCE OF SIXTY YEARS AND COUNT II OF CONSPIRACY TO SELL COCAINE, AS A SUBSEQUENT DRUG OFFENDER AND SENTENCE OF TWENTY YEARS TO RUN CONCURRENTLY TO SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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


author: IRVING, J.,

text:
    IMPERIAL PALACE CASINO and Great American Insurance Company, Appellants v. Johnie E. WILSON, Jr., Appellee.
    No. 2006-WC-00056-COA.
    Court of Appeals of Mississippi.
    Dec. 12, 2006.
    Rehearing Denied May 1, 2007.

      Meri Elizabeth Barr, John S. Gonzalez, Gulfport, attorneys for appellants.
    James Kenneth Wetzel, Gulfport, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   IRVING, J.,

for the Court.

¶ 1. This appeal arises out of a worker’s compensation claim filed against Imperial Palace Casino by Johnie Wilson, Jr. On February 11, 2004, an administrative judge determined that Wilson’s claim was com-pensable. Thereafter, Imperial Palace and Wilson both appealed that ruling to the Mississippi Workers’ Compensation Commission (the Commission). The Commission found that Wilson’s claim was com-pensable, and, as urged by Wilson, ordered Imperial Palace to pay full disability benefits to Wilson, rather than the partial benefits ordered by the administrative judge. Imperial Palace then appealed the Commission’s decision to the Harrison County Circuit Court, which affirmed. Aggrieved, Imperial Palace now appeals to this Court and asserts four allegations of error: first, that there was no causal relationship between Wilson’s injury and his work; second, that a letter from Wilson’s attorney was insufficient to constitute a return to work; third, that Wilson’s job search was not reasonable; and fourth, that Wilson’s refusal to cooperate with Imperial Palace’s vocational expert should have been taken into account by the Commission.

¶ 2. Finding no error, we affirm.

FACTS

¶ B. Wilson was hired by Imperial Palace in February of 2001. At that time, he suffered from chronic back pain, possibly as a result of an accident with a former employer. As part of his work for Imperial Palace, Wilson had to carry bags of coins weighing twenty to thirty pounds. Wilson testified that he was told by management at Imperial Palace to carry these bags on his shoulder. Wilson indicated that, on average, he might have to carry thirty of these bags each night he worked.

¶ 4. Wilson worked a full shift on October 25 and on October 26 of 2002. On October 27, Wilson woke up with a stiff neck. Despite his discomfort, he returned to work and worked throughout the week, although he testified that his pain intensified as the days passed. On October 31, 2002, Wilson saw Dr. Pacita Coss, a general physician. Dr. Coss noted that Wilson appeared to be in severe pain during their meeting. Wilson worked on November 1, but his pain was so severe on November 2 that he was unable to go to work. On November 4, Dr. Coss sent Wilson to a hospital emergency room due to the severity of his pain.

¶ 5. On November 18, Wilson met with Dr. Michael Lowry, a neurosurgeon. Wilson’s intake form from the visit indicates that he was “probably” injured at work as he lifted bags of coins. On November 26, Wilson underwent surgery, which apparently significantly reduced his pain, although it did. not .ease the pain entirely. On May 7, 2003, Dr. Lowry indicated that Wilson could return to work on May 19, 2003, with some restrictions as to his activity. In a letter dated May 16, 2003, Wilson’s attorney asked Dr. Lowry to review an attached copy of Wilson’s job duties and indicate whether Wilson could return to those duties. In mid-August, Dr. Lowry sent a response to Wilson’s attorney, detailing which job duties Wilson could and could not perform. In that letter, Dr. Lowry indicated that Wilson could return to work, but he would not be able to perform all of the .activities that he had performed prior to the injury, especially carrying around bags of coins on his shoulder.

¶ 6. Despite Dr. Lowry’s opinion, Wilson never continued his work at Imperial Palace. Wilson testified that he did not return to his. job because he thought that, because of his restrictions, Imperial Palace would not want him to return to work. On September 4, 2003, Wilson’s attorney sent a letter to Imperial Palace, requesting that Imperial Palace contact Wilson if it had a job he could perform. Imperial Palace never responded to the letter. Wilson testified that he enjoyed his job at Imperial Palace, and would have continued working if he had not been injured.

¶ 7. According to Wilson, he attempted to locate employment with numerous companies in September of 2003. Wilson also made several follow-up attempts with some of the companies. Tommy Sanders, a vocational rehabilitation expert, testified on behalf of Imperial Palace. Sanders claimed that there were several jobs he had located for which Wilson was qualified. Sanders testified that he believed that Wilson’s efforts to secure employment were “sporadic.” Wilson was asked to work with Sanders to find employment, but he refused because of how close to the initial hearing the request was made.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

Standard of Review

¶ 9. When reviewing the Commission’s determination, the Commission is “the ultimate judge of the credibility of witnesses.” Barber Seafood, Inc. v. Smith, 911 So.2d 454, 461(¶ 27) (Miss.2005) (quoting Hardaway Co. v. Bradley, 887 So.2d 793, 795(¶ 11) (Miss.2004)). As a result, we “must defer to decisions by the Commission on issues of fact and credibility unless the Commission commits prejudicial error.” Id. (quoting Hardaway, 887 So.2d at 795(¶ 11)). We “must affirm ... where substantial evidence supports the Commission’s order.” Id. (quoting Hardaway, 887 So.2d at 795(¶ 11)). Therefore, we will reverse only if we find that the Commission’s order was “clearly erroneous and contrary to the overwhelming weight of the evidence.” Id. (quoting Hardaway, 887 So.2d at 795(¶ 11)).

¶ 10. After a finding of permanent partial disability, a “claimant bears the burden [in proving total disability] of making a prima facie showing that he has sought ... work ... pursuant to Mississippi Code Annotated section 71 — 3—3(i)” (Rev.2000). McNeese v. Coopper Tire & Rubber Co., 627 So.2d 321, 325 (Miss.1993) (quoting Jordan v. Hercules, Inc. 600 So.2d 179, 183 (Miss.1992)). However, when a claimant, after reaching maximum medical recovery, “reports back to his employer for work, and the employer refuses to reinstate or rehire him, then it is prima facie that the claimant has met his burden of showing total disability. The burden then shifts to the employer to prove a partial disability or that the employee has suffered no loss of wage earning capacity.” Id. (quoting Jordan, 600 So.2d at 183).

1. Causal Relationship

¶ 11. In its first allegation of error, Imperial Palace claims that the court erred in affirming the Commission’s determination that there was a causal relationship between Wilson’s work and his injury. Imperial Palace bases its allegation on evidence that Wilson did not tell Dr. Lowry that his injury had been caused at work. Imperial Palace claims that Wilson “merely mentioned in his in-take form that he probably was injured at work and that he had been carrying coins the day before but it did not bother him until the next day.” Imperial Palace also contends that Dr. Lowry testified in his deposition that “a disc herniation could be caused by sleeping the wrong way ... or equally by many other factors as well.” Imperial Palace acknowledges Dr. Lowry’s conclusion that Wilson’s employment contributed to his injury, but dismisses that opinion as “mere ‘speculation.’ ”

¶ 12. While it is true that Wilson denied being injured at work during his first meeting with Dr. Lowry, Dr. Lowry further explained in his deposition that he and Wilson both thought that Wilson’s work likely caused his injury: “I remember him talking to me about this, wanting to know what I thought about that. And he was wondering it, too: ‘Well, did my kind of work — ’ ‘Since you don’t want me to lift these heavy bags, did that have anything to do with [the injury]?’ ” Although Dr. Lowry spoke in terms of speculation during his deposition, he made a much stronger statement in his letter sent to Wilson’s attorney: “I do feel that the kind of work that he was doing prior to the onset of this problem, did contribute to the cervical disc herniation, at the very least.” Furthermore, although Dr. Lowry’s notes from his first meeting with Wilson indicate that Wilson said he did not suffer a neck injury at work, Dr. Lowry immediately thereafter noted that “[i]n his job he does have to carry bags of coins and he frequently puts them up on his shoulder to carry them.” Dr. Lowry also testified that the fact that Wilson put on his intake form that he probably injured himself at work was significant. Dr. Lowry testified that Wilson’s failure to mention that he was injured at work during their actual meeting could have been a result of the severe amount of pain that Wilson was in at the time: “It might have distracted him some in my — in his answering my questions. He was very uncomfortable that day.”

¶ 13. Wilson testified that he told Dr. Lowry at their first meeting that the “only thing that I have done around my neck is carry bags.” Imperial Palace notes several times that Wilson suffered from a preexisting back condition, but we note that Wilson clearly testified that he had never had a neck injury. A back injury is not the same as a neck injury. Although Dr. Lowry released Wilson to return to work on May 19, 2003, Wilson testified" that “[Dr. Lowry] told me he didn’t advise it. He said that I could reinjure myself, you know. That he did not advise doing that ... the way I remember it he didn’t advise me to go back to doing that type of work.”

¶ 14. Referring to when he began to feel pain, Wilson testified that he had no pain prior to waking up that day. However, in Wilson’s medical records from Dr. Coss’s office, Dr. Coss writes: “Johnie is having a lot of pain in his neck which goes down his shoulder and his right hand. He says he hasn’t had this for a couple of years.” This statement indicates that Wilson had suffered from a similar injury in the past. No further mention of any prior injury to Wilson’s neck is made anywhere in the record.

¶ 15. In order for Wilson’s claim to be compensable, his injury need only be connected to his employment. Sharpe v. Choctaw Elecs. Enters., 767 So.2d 1002, 1005(¶ 13) (Miss.2000). An employee’s work does not need to be the “sole source of the injury.” Id. (quoting Chapman v. Hanson Scale Co., 495 So.2d 1357, 1360 (Miss.1986)). The Mississippi Supreme Court specifically noted: “Injury ... arises out of and in the course of employment even when the employment merely aggravates, accelerates or contributes to the injury.” Id. (quoting Chapman, 495 So.2d at 1360).

¶ 16. Because Wilson’s injury need not have been caused solely by his work at Imperial Palace, this issue is without merit. We note that Wilson could attribute no other cause to his sudden pain, other than carrying coins on his shoulder. We further note that Dr. Lowry specifically opined that “I do feel that the kind of work that he was doing prior to the onset of this problem, did contribute to the cervical disc herniation, at the very least.” (emphasis added). By contrast, Imperial Palace presented no evidence that Wilson’s injury was not caused by his work at Imperial Palace, or that the work did not contribute to Wilson’s injury. Clearly, substantial evidence exists from which the Commission could have determined that Wilson’s employment caused his injury. This contention of error is without merit.

2. Attempt to Return to Work

¶ 17. In this allegation of error, Imperial Palace claims that the letter sent by Wilson’s attorney requesting that Imperial Palace notify Wilson of any job it had for him was insufficient to satisfy a presumption of total loss of wage earning capacity. Imperial Palace claims that the letter “is not the equivalent of the Claimant actually presenting himself and reporting back to work.” As support, Imperial Palace cites numerous cases where the presumption was not raised because an employer did not rehire a former employee sua sponte. In other words, in all the cases cited by Imperial Palace, the employee did not attempt to contact his former employer and seek reemployment.

¶ 18. The cases cited by Imperial Palace are clearly distinguishable on their facts. Wilson did, in fact, take action in this case to seek reemployment with Imperial Palace. While Wilson did not physically report to Imperial Palace, his attorney sent a letter to Imperial Palace on his behalf explicitly requesting that Imperial Palace notify Wilson if it had a job for him. Imperial Palace’s failure to respond in any way to this letter was a failure to reemploy Wilson. No authority is cited by Imperial Palace to indicate that contact by mail, rather than in person, is insufficient to constitute an attempt to return to work. In fact, one of the cases cited by Imperial Palace, Boyd v. Miss. Workers’ Comp. Comm’n Self-Insurer Guar. Ass’n, 919 So.2d 163, 168(¶ 23) (Miss.Ct.App.2005), explicitly notes: “Boyd had the burden to seek the same employment ... [and] failed to do this when she did not call [her employer] or make any other attempt to return to work....” Clearly, this opinion indicates that a phone call or “any other attempt” might constitute an attempt to return to work.

¶ 19. Imperial Palace claims that allowing the letter to constitute a return to work will “dissuade employers from rehiring injured workers.” Imperial Palace fails to explain the logic behind this statement, and we are unpersuaded by the argument. If anything, our holding encourages employers to rehire injured workers. Clearly, if Imperial Palace had responded to the letter sent by Wilson’s attorney with an offer of employment, the presumption of total disability would not have been raised, as the presumption operates only when an employer refuses to rehire an injured worker. Imperial Palace’s argument to the contrary is without merit. This allegation of error is also denied.

3. Job Search

¶ 20. In its third contention of error, Imperial Palace claims that the Commission erred in finding that Wilson’s job search was reasonable and was made in good faith. As support, Imperial Palace points out that Wilson was officially released to return to work on May 19, 2003, but did not pursue any employment throughout May, June, July, or August of 2003. Imperial Palace also contends that the burden of proof should have been on Wilson because he did not make an attempt to return to work at Imperial Palace. Since we have already found that Wilson made an attempt to return to work, and Imperial Palace refused to hire him, Wilson has met the presumption of total disability, and the burden properly shifted to Imperial Palace to show that Wilson has suffered no reduction in earning capacity. “In such a posture, the employer may present evidence (if any) showing that the claimant’s efforts to obtain other employment was a mere sham, or less than reasonable, or without proper diligence.” Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1227 (Miss.1997) (citations omitted).

¶ 21. As support, Imperial Palace cites Hale, and claims that the facts in the present ease are similar to the facts in Hale. In Hale, a claimant’s job search was found to be unreasonable and not diligent where the claimant began her job search only one month before her Commission hearing and where the claimant, when questioned as to her efforts, could only recall one other specific instance of searching for employment. Id. We find that the facts are notably different in the present case. The documentation presented clearly indicates that Wilson began his job search in earnest in September of 2003. The list provided by Wilson in mid-January of 2004 enumerated six attempts to locate employment between September 3, 2003, and October 6, 2003. In addition, twelve undated attempts to locate employment with specific companies were listed. Wilson’s hearing before the Commission did not occur until February 11, 2004. Therefore, the record is clear that Wilson’s initial attempts to locate employment began more than four months prior to his hearing, unlike the claimant in Hale, who began her job search only one month before her hearing.

¶ 22. At the hearing, Wilson explained that he included specific dates only for the contacts that he was certain of. He testified that, although he was certain he had contacted the other potential employers, he did not know specifically on what dates he had done so. Wilson also testified that he made additional contacts other than those listed on the document given to Imperial Palace prior to the hearing. Furthermore, Wilson listed specific dates in mid-January when he had followed up on some of the contacts. When questioned by Imperial Palace’s attorney at the hearing as to why he had not followed up sooner on the employment contacts, Wilson explained: “I was told by most of the people ... that I would be gotten in touch with, and to not make them mad, no, I didn’t go back and follow up then, but I have probably made them mad now because I have really been following up on them, you know.”

¶23. Imperial Palace also claims that Wilson’s claim should fail for failure to provide “medical proof of such disability.” As support, Imperial Palace cites Thompson v. Wells-Lamont Corp., 362 So.2d 638, 641 (Miss.1978), where the Mississippi Supreme Court found that a claimant had made out a prima facie case for permanent total disability. In so finding, the court noted that “[mjedical proof in the record shows that claimant has a permanent disability rendering her functionally disabled .... ” Id. However, in Morris v. Lansdell’s Frame Co., 547 So.2d 782, 785 (Miss.1989) (citing Hall of Miss., Inc. v. Green, 467 So.2d 935, 938 (Miss.1985)), the Mississippi Supreme Court held: “Disability need not be proved by medical testimony so long as there is medical testimony which will support a finding of disability.” Furthermore, in this case, although Dr. Lowry indicated that Wilson could return to work with restrictions, Dr. Lowry also made a finding that Wilson had a twenty-percent permanent partial impairment as a result of his injury. Therefore, there was medical evidence regarding Wilson’s disability. Under Mississippi law, Imperial Palace’s failure to rehire Wilson, combined with his inability to find employment after a diligent search, raises a presumption that Wilson has been totally disabled. The burden is on Imperial Palace to prove otherwise.

¶ 24. Substantial evidence exists to support the Commission’s finding. Therefore, the Commission was not clearly erroneous, and this assignment of error is without merit.

⅛. Vocational Expert

¶ 25. In its final contention of error, Imperial Palace claims that the Commission erred in not requiring Wilson to work with Sanders, Imperial Palace’s vocational expert. As support, Imperial Palace notes that other jurisdictions have allowed termination of a claimant’s benefits when the claimant refused to cooperate with a vocational expert. Imperial Palace argues that, at a minimum, Wilson’s refusal to cooperate with Sanders should weigh against Wilson’s diligence in seeking employment.

¶ 26. Because the Mississippi Supreme Court has not yet addressed this question, we fail to see how the Commission could be clearly erroneous for failing to terminate Wilson’s benefits. Furthermore, we note that Imperial Palace’s expert was retained on January 15, 2004, less than a month before the scheduled hearing in the matter. Under such circumstances, the Commission was not clearly erroneous for finding that Wilson’s job search was diligent, despite his refusal to work with the expert. Wilson’s attorney made it clear during Sanders’ deposition that Wilson had refused to meet with Sanders due to the short amount of time before Wilson’s hearing.

¶ 27. This contention of error is also without merit.

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

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

      . For example, Dr. Lowry said that Wilson should not lift bags of coins at work, and instead should be given a cart to transport coins.

      . As discussed earlier in this opinion, a claimant must report back to his employer in order to activate a presumption that a partial disability is in fact a total permanent disability. McNeese, 627 So.2d at 325 (quoting Jordan, 600 So.2d at 183).

      . The transcript of the hearing indicates that Wilson would have testified regarding the specifics of those contacts if he had been allowed to. However, repeated objections by Imperial Palace’s attorney precluded such testimony. Imperial Palace claimed that Wilson could not testify about any job search efforts outside of those detailed in the list given to Imperial Palace, and the administrative judge finally told Wilson's attorney: "Well, but you’re going to get repeated objections from [Imperial Palace's attorney], and frankly I think [the documentation given to Imperial Palace] is a good recapitulation of what he did that you don’t need to elaborate on.... ”