author: MOORE, J. CARAWAY, J.,

text:
    STATE of Louisiana, Appellee v. Armondo James BRANTLEY, Appellant.
    No. 43,067-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 13, 2008.

      Louisiana Appellate Project, by Edward K. Bauman, Lake Charles, for Appellant.
    Paul J. Carmouche, District Attorney, Brady O’Callaghan, Karelia A. Stewart, John Ford McWilliams, Jr., Assistant District Attorneys, Appellee.
    Before CARAWAY, MOORE and LOLLEY, JJ.
   MOORE, J.

11 Armondo James Brantley was charged by bill of information with possession of a firearm by a convicted felon, La. R.S. 14:95.1. After a two-day trial, a 12-mem-ber jury convicted him of the lesser included offense of attempted possession of a firearm by a convicted felon. The district court sentenced him to seven years at hard labor without benefits. Brantley now appeals, urging only insufficiency of the evidence to convict. We affirm.

Factual Background

Early on August 9, 2006, Corporal Amy Bowman of the Shreveport Police Department received a call from the clerk at a Circle K convenience store on Line Avenue. The Circle K was within Cpl. Bowman’s patrol area; she had previously given her card to this and other businesses, urging them to call her directly in ease of a crime. On August 9, the clerk did so, telling Cpl. Bowman that a black male in a red shirt had entered the Circle K, stolen two beers, hopped into a waiting Chrysler 300 and fled west on Olive Street. Coincidentally, Cpl. Bowman was at that moment parked on the south side of Olive Street and almost simultaneously saw a white Chrysler 300 driving by. She pursued it, activating her lights and siren, but the vehicle would not stop. A high-speed chase ensued, north on Fairfield Avenue and into the Allendale area, where another patrol car joined the pursuit. The Chrysler eventually crashed into a tree near the intersection of Murphy and Sycamore Streets; two dashboard-mounted cameras recorded the chase and its aftermath.

Corporal Bowman could see that Brant-ley, dressed in a red shirt, was riding in the front passenger seat. He immediately alighted from the front | ¡¡.passenger door and fled on foot; the backseat passenger, Frankie Tillman, quickly exited through the same door and also fled on foot. The driver, Alexander James, received a head injury in the crash and could not use the driver’s side door because it was damaged. He slid over the front seat and crawled out the passenger door several seconds after his colleagues had escaped; Cpl. Bowman promptly arrested him. Officer Willis, who had joined the foot chase, subdued Brantley in a brushy area off Ashton Street moments later. A third officer apprehended Tillman nearby.

Searching the Chrysler, Cpl. Bowman found a tall can of Budweiser lodged under the front passenger seat, where Brantley had been sitting. She also found a .32 caliber Smith & Wesson handgun on the front passenger floorboard, loaded with two rounds.

After receiving his Miranda warnings, Brantley admitted stealing the two beers but denied any knowledge of the handgun. He also denied being a convicted felon, but a check of his record showed a 2003 conviction for aggravated flight from an officer. James and Tillman also denied knowing anything about the handgun.

As noted, the state charged Brantley with possession of a firearm by a convicted felon. At trial in April 2007, no evidence established that any witness ever saw Brantley with a gun. The state’s CSI expert, Amy Muller, testified that she was unable to lift any latent fingerprints from the handgun. Corporal Bowman admitted that the gun bore a legible serial number, but the state offered no proof of its registration. She also testified that the Chrysler 300 belonged to the mother of the driver, James. By a vote of 10⅛ the jury rendered the responsive verdict of guilty of attempted possession of a firearm by a convicted felon. The district court denied Brantley’s motion for post verdict judgment of acquittal and later sentenced him to seven years at hard labor without benefits, near the maximum of 7½ years. La. R.S. 14:95.1 B, 14:27 D(3). Brantley now appeals.

Discussion

By one assignment of error, Brant-ley urges the evidence was insufficient to support the responsive verdict of attempted possession of a firearm by a convicted felon because the evidence did not exclude every reasonable hypothesis of innocence. Specifically, he contends that two other occupants of the car exited through the front passenger door after he had done so, and one of them could have left the gun on the floorboard.

The state responds that this hypothesis of innocence is unreasonable, as Brantley admitted stealing the beer that was wedged under the front passenger seat and hence had dominion and control of the floorboard. Further, neither of the other fleeing occupants was likely to have placed the gun on the front passenger floorboard, nor was it likely to have landed there as a result of the impact.

The standard of appellate review is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now | ¿legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517. The trier of fact is charged to make a credibility evaluation and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Sosa, 2005-0213 (La.1/19/06), 921 So.2d 94.

When circumstantial evidence is used to prove the offense, La. R.S. 15:438 requires that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” Ultimately, all evidence — both direct and circumstantial — must be sufficient under Jackson v. Virginia to prove guilt beyond a reasonable doubt to a rational jury. State v. Robinson, 2002-1869 (La.4/14/04), 874 So.2d 66.

To support a conviction under R.S. 14:95.1 A, the state must prove (1) the possession of a firearm, (2) a previous conviction of an enumerated felony, (3) absence of the 10-year statutory cleansing period, and (4) general intent to commit the crime. State v. Husband, 437 So.2d 269 (La.1983); State v. Ray, 42,096 (La.App. 2 Cir. 6/27/07), 961 So.2d 607. The parties stipulated at trial that at the time of the offense, Brantley was a convicted felon for purposes of R.S. 14:95.1. Thus the state sought to show that Brantley had the requisite general intent to possess a firearm either through actual or constructive possession. State v. Johnson, 2003-1228 (La.4/14/04),6 870 So.2d 995.

Constructive possession of a firearm occurs when the firearm is subject to the defendant’s dominion and control. State v. Johnson, supra; State v. Kennedy, 42,258 (La.App. 2 Cir. 8/15/07), 963 So.2d 521. A defendant’s dominion and control constitute constructive possession even only temporary and even if control is shared; moreover, constructive possession entails an element of awareness or knowledge that the firearm is there and general intent to possess. Id. However, the mere presence of a defendant in the area where the weapon was seized does not alone prove that he exercised dominion and control over it and thus had it in his constructive possession. State v. Johnson, supra.

The charged offense is a general intent crime. State v. Husband, supra; State v. Ray, supra. Attempt, however, is a responsive verdict to the charged offense. La. C. Cr. P. art. 815; State v. Ray, supra. To sustain a conviction for attempted possession of a firearm by a convicted felon, the state must prove that the defendant had the specific intent to possess the weapon and that he committed an overt act toward the completion of that offense. La. R.S. 14:27 A. Nonetheless, the jury has the prerogative to compromise and render a lesser verdict whenever it could have convicted as charged. State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La.1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983); State v. Kennedy, supra. When the defendant does not timely object to a legislatively provided responsive verdict which is not also a lesser and included offense of the crime charged, the reviewing court will not reverse the conviction as long as | fithe evidence is sufficient to support the charged offense. Id.; State v. Ray, supra. Because the instant record does not show that Brantley objected to the responsive verdict, we have reviewed the evidence for sufficiency to convict of the charged offense, possession of a firearm by a convicted felon.

Brantley correctly shows that there was no direct evidence that he actually possessed the handgun. No witness saw him holding the gun; his fingerprints were not found on it. In addition, some circumstantial evidence suggests that someone else may have wielded actual possession: the Chrysler belonged not to Brantley, but to the driver’s mother; both other occupants exited through the passenger door and conceivably could have dropped the gun on the floor; the high-impact collision conceivably could have propelled the gun from the back seat or elsewhere in the car to a random resting place; and it seems unlikely that Brantley would make a studious effort to conceal a stolen beer can under his seat while ignoring the loaded handgun, had he been aware of its presence.

On the other hand, it is undisputed that Brantley was occupying the front passenger seat immediately before fleeing the vehicle. He showed his dominion and control over the floorboard by stashing the beer can under the seat. Because the impact did not dislodge the beer can, it probably would not have flung the gun from the back seat. The other occupants exited the car in haste and urgency, and hence were unlikely to have the poise and presence of mind to set the gun on the front passenger floorboard. Most tellingly, during his initial post-Miranda interview, Brantley lied to police about being a convicted felon. A rational jury could easily conclude that he |7also lied about possessing the handgun, as he well understood the consequences of this action. On this record, we have no basis to disturb the jury’s credibility call.

Viewed in the light most favorable to the state, this evidence proves beyond a reasonable doubt that Brantley, as a convicted felon, had the general intent to exercise actual or constructive possession of a firearm. Although the proof of possession is circumstantial, is excludes every other reasonable hypothesis of innocence. Finally, the responsive verdict of attempt was within the jury’s prerogative. The assignment of error lacks merit.

Conclusion

We have reviewed the entire record and find nothing we deem to be error patent. La. C. Cr. P. art. 920(2). For the reasons expressed, Armondo James Brantley’s conviction and sentence are affirmed.

AFFIRMED.

CARAWAY, J., dissents with written reasons.

CARAWAY, J.,

dissenting.

|, The state presented no evidence that defendant exercised actual possession of the gun. The actual location of the gun before the accident is unknown. The high-speed crash and the parties’ exit of the vehicle through the single front door prevents circumstantial proof of defendant’s guilt which excluded beyond a reasonable doubt the possible dominion and control over the weapon by the other occupants. It is unclear that the defendant must have been aware of the gun’s presence in the car before the accident. See State v. Evans, 29,675 (La.App. 2d Cir.9/24/97), 700 So.2d 1039. Instead, the state’s circumstantial evidence gives rise to competing inferences about the possible possession of the gun by any one of the three occupants. There is a further possibility that the owner of the vehicle alone may have known the gun’s location in the vehicle.

If it cannot be reasonably concluded that any or all of these parties were in possession of the gun in its probable location under the seat before the accident, how can the chaotic situation that resulted from this violent crash somehow spin-the-bottle of circumstance to clearly land the gun’s possession thereafter on the defendant? I respectfully dissent.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Sherman Ray ROBINSON, Appellant.
    No. 43,063-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 13, 2008.

      G. Paul Marx, Louisiana Appellate Project, Lafayette, for Appellant.
    Paul J. Carmouche, District Attorney, Tommy J. Johnson, Damon D. Kervin, John Ford McWilliams, Jr., Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS and CARAWAY, JJ.
   CARAWAY, J.

| Gherman Robinson was charged with indecent behavior with juveniles in violation of La. R.S. 14:81 and simple battery (a misdemeanor) in violation of La. R.S. 14:35. The matters were tried together after Robinson selected a bench trial for the felony charge. The court found Robinson guilty as charged on both counts and denied his motion for post-verdict judgment of acquittal.

Robinson received a suspended sentence of five years at hard labor on the indecent behavior conviction. For the simple battery count, Robinson was given a six-month sentence with all but five suspended. The defendant now appeals his conviction and sentence for the felony charge of indecent behavior with a juvenile. We affirm.

Facts

On March 11, 2006, 40-year-old Sherman Robinson visited a clothing store in a Shreveport mall. By his own admission, Robinson had been smoking marijuana earlier that day. The patrons inside the store included a fourteen-year-old female, M.G., and an adult woman, K.G. Neither M.G. nor K.G. was acquainted with the defendant.

At trial, M.G. testified that Robinson “grabbed me on my behind with his hands. I had looked up, and he said, ‘Hey, baby.’ And he tried to go up my shirt, but I had ran.” She further stated that Robinson:

He tried to, like, when he grabbed [my buttocks], my shirt was longer down here, so he tried to go up my shirt, but he was like at the tip of my shirt, I had ran, as he said, “Hey, baby.”

M.G. ran and told her cousin what had happened.

|2K.G. testified that Robinson also approached her. She testified that she “felt someone come up behind me with both hands, grabbed my [buttocks] cheeks, and when I turned around and realized that I did not know who the person was, I got aggressive and started fighting and yelling.” She testified that Robinson headed for one of the store’s dressing rooms. K.G. then summoned help.

The store’s manager summoned security officers. The mall site security supervisor encountered the store manager and Robinson standing near the store front. As he asked Robinson for identification, two Cad-do Parish Sheriff’s Officers, working off-duty as mall security, spoke with Robinson and escorted him to the mall security office.

Officer Chris Knighton described his encounter with the defendant, as follows:

So just because of all the confusion, I walked [Robinson] back to the mall security office. He was hesitantly walking back, kind of was looking through me, like I couldn’t quite tell. His state of mind was not normal, but I was able to get him to walk back with me calmly.

Once they arrived at the security station, Knighton interviewed Robinson. The deputy testified:

[Robinson’s] demeanor just led me to believe that he was on some sort of medication or drugs or something. And I didn’t smell anything on him, but he was kind of in a daze. That was my main concern at the time was, are you okay? What’s wrong? He says “Nothing.” And I said “Are you on any medication?” He said, “I smoked some marijuana a couple hours ago,” I believe.

K.G. entered the room and identified Robinson as the man who touched her. Robinson became fidgety and the deputy handcuffed him. As |she did so, Robinson, said “I’m sorry.” K.G. testified that Robinson told her “I’m sorry. I didn’t know you were grown.” M.G. also entered the room and informed the officers that Robinson had touched her as well. Robinson became somewhat agitated and the deputy decided to have him taken to jail in a patrol unit.

After being read his rights at the jail, Robinson appeared to become more lucid, and again admitted that he had smoked marijuana. Robinson further stated, “All I know is, I saw two good-looking women, and I just couldn’t help myself.” At trial, Robinson testified that he had smoked marijuana earlier that day and admitted that he had grabbed KG.’s buttocks but denied touching the young girl.

At Robinson’s request, the trial court allowed a responsive verdict instruction for simple battery for the indecent behavior charge. The court accepted the testimony of the victims and rejected that of Robinson, finding the defendant guilty of both charged offenses. Robinson filed a motion for post-verdict judgment of acquittal which the court denied at sentencing.

For the indecent behavior conviction, the court sentenced Robinson to a suspended sentence of five years and placed Robinson on two years supervised probation. The court also directed Robinson to comply with the sex offender registration and notification laws and ordered him to pay $55 per month to probation and parole, or perform two days of community service per month, and pay $10 per month to the indigent defender board. The defendant did not file a motion to reconsider sentence. Robinson now appeals his felony conviction.

\ ¿Discussion

Robinson argues that his act of grabbing the minor on the buttocks was not a lewd or lascivious act under La. R.S. 14:81.

The standard of appellate review for a sufficiency of the evidence claim 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 02-2634 (La.9/05/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the [.^witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App. 2d Cir.9/18/02), 828 So.2d 622, writs denied, 02-2595 (La.3/28/03), 840 So.2d 566, 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

At the time of the offense, La. R.S. 14:81 provided:

A. Indecent behavior with juveniles is the commission of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person. Lack of knowledge of the child’s age shall not be a defense.

To convict a defendant of this offense, the state must prove that (1) there was an age difference of greater than two years between the accused and the victim, who was not yet 17; (2) the accused committed a lewd or lascivious act upon the person or in the presence of the child; and (3) that the accused had the specific intent to arouse or gratify either his own or the victim’s sexual desires. State v. Bugbee, 34,524 (La.App. 2d Cir.2/28/01), 781 So.2d 748. Indecent behavior with juveniles is a specific intent crime where the state must prove the defendant’s intent to arouse or gratify his sexual desires by his actions with a child. State v. Wallace, 41,270 (La.App. 2d Cir.1/24/07), 949 So.2d 556. This article is intended to apply to behavior which falls short of sexual intercourse carried on with young children. State v. Saibold, 213 La. 415, 34 So.2d 909 (1948); State v. Rideaux, 05-446 (La.App. 3d Cir. 11/2/05), 916 So.2d 488.

| ¿The word “lewd” means lustful, indecent and signifies that form of immorality which relates to sexual impurity carried on in a wanton manner and is identified with obscenity and measured by community norms for morality. The word “lascivious” means tending to incite lust, indecent, obscene and tending to deprave the morals in respect to sexual relations. State v. Holstead, 354 So.2d 493 (La.1977); State v. Prejean, 216 La. 1072, 45 So.2d 627 (1950); State v. Bugbee, supra. Finding that an act is lewd or lascivious depends upon the time, the place and all of the circumstances surrounding its commission, including the actual or implied intention of the actor. State v. Bugbee, supra; State v. Sturdivant, 27,680 (La.App. 2d Cir.2/28/96), 669 So.2d 654.

Generally, convictions for indecent behavior with a juvenile where kissing was the proscribed act have been upheld when inappropriate body contact and fondling also occurred. See State v. Boutte, 384 So.2d 773 (La.1980); State v. Ragas, 607 So.2d 967 (La.App. 4th Cir.1992), writ denied, 612 So.2d 97 (La.1993); State v. Jacob, 461 So.2d 633 (La.App. 1st Cir.1984); State v. Rollins, 581 So.2d 379 (La.App. 4th Cir.1991). On the contrary, convictions for the offense where only kissing occurred have been reversed on the grounds that a one-time kissing event, without genital contact or any other obscene or indecent act or repeated occurrence, was insufficient to establish the lewd or lascivious act element of the crime. State v. Louviere, 602 So.2d 1042 (La.App. 4th Cir.1992), writ denied, 610 So.2d 796 (La.1993); State v. Ragas, supra.

|7Likewise in cases involving the touching of the buttocks, convictions for indecent behavior with juveniles have been upheld where words or actions accompanied the touching. In State v. Sturdivant, supra, a conviction was sustained for indecent behavior with juveniles where the defendant persisted in speaking about sexually related topics and an article he had allegedly written regarding the molestation of young girls. He then walked up behind the girl, thrust his arms under her arms and attempted to grab her breasts. When she pulled away the defendant placed his hands on her buttocks and “lifted up and kind of rubbed” and commented that she now knew what he meant by being fondled. See also State v. Stamper, 615 So.2d 1359 (La.App. 2d Cir. 1993), modified on other grounds, 624 So.2d 1208 (La.1993); State v. Bugbee, supra; State v. Duplichan, 06-852 (La.App. 3d Cir.12/6/06), 945 So.2d 170, writ denied, 07-0148 (La.9/28/07), 964 So.2d 351; State v. Cyriak, 96-661 (La.App. 3d Cir.11/6/96), 684 So.2d 42. The mere touching of the breasts and buttocks of a child by a defendant without accompanying words or actions has resulted in a conviction for indecent behavior with a juvenile in State v. Guillory, 07-422 (La.App. 3d Cir.10/31/07), 970 So.2d 670. Likewise, the mere groping of the buttocks of a child from behind by a defendant supported a conviction for indecent behavior with a juvenile in State v. Washington, 06-0634 (La.App. 3d Cir.11/3/06), 2006 WL 3109742, writ denied, 07-0113 (La.10/12/07), 965 So.2d 393. The fondling of a child’s buttocks under cover of the bed where she slept accompanied by a threat to kill her if she told |ssupported conviction for attempted indecent behavior with juveniles in State v. Cyriak, supra.

In this case, the defendant grabbed the stranger’s buttocks for a few moments before the child was able to react and pull away. The defendant “tried to go up [the victim’s] shirt,” but the victim ran away. He engaged in similar groping behavior with another victim. During the physical contact, the defendant said “Hey, baby” to the victim. Robinson later admitted that he acted because he believed the women to be attractive females and he could not help himself. The term “hey baby” and Robinson’s statement that he was not able to help himself sufficiently disclose his sexual intentions toward the victim. When viewed in context with the acts which accompanied Robinson’s words, including the groping of the child’s buttocks and an attempt to reach under her shirt, his behavior was indecent, violated community norms for morality and was indicative of Robinson’s lustful disposition toward the child. Thus, when viewed in the light most favorable to the state, a rational fact finder could have concluded that forty-year-old Robinson was guilty of indecent and lewd acts upon this fourteen-year-old with the intent of arousing or gratifying his sexual desires.

Robinson also argues that his five-year suspended sentence for the offense of indecent behavior with a juvenile is excessive.

Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. Livingston, 39,390 (La.App. 2d Cir.4/6/05), 899 So.2d 733; State v. White, 37,815 (La.App. 2d Cir.12/17/03), 862 So.2d 1123.

At the time of this offense, La. R.S. 14:81 provided, in part:

C. Whoever commits the crime of indecent behavior with juveniles shall be fined not more than five thousand dollars, or imprisoned with or without hard labor for not more than seven years, or both, provided that the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with the provisions of Code of Criminal Procedure Article 893.

Although Robinson’s five-year hard labor sentence is at the upper end of the sentencing range, the term of imprisonment was suspended in its entirety in favor of two years supervised probation. Robinson is required to register as a sex offender under the mandatory provisions of La. R.S. 15:542. Considering the leniency afforded Robinson by the court for the offense, we cannot say that the imposed sentence shocks the sense of justice. Robinson’s crude behavior violated the innocence of a fourteen year old and inflicted obvious distress upon the child. For these reasons, the imposed sentence is affirmed.

Conclusion

For the foregoing reasons, Robinson’s conviction and sentence are affirmed.

AFFIRMED.


author: DIAZ, Presiding Justice,

text:
    Charise FORD v. STATE of Mississippi.
    No. 2006-KA-01706-SCT.
    Supreme Court of Mississippi.
    Feb. 21, 2008.

      Virginia Lynn Watkins, William R. La-barre, Hollandale, attorneys for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before DIAZ, P.J., EASLEY and GRAVES, JJ.
   DIAZ, Presiding Justice,

for the Court.

¶ 1. Charise Ford was found guilty of aggravated assault under Mississippi Code Section 97-3-7(2) and sentenced to seventeen years. Aggrieved, she appeals her conviction and sentence.

Facts

¶2. On the morning of July 6, 2003, Charise Ford was working at the Comfort Inn where she was employed as the “breakfast bar hostess.” Her duties kept her in the kitchen most of the time, but she was also responsible for cleaning the lobby area where Misty Gaddy worked. Gaddy and Ford were friends, but for reasons unknown, became involved in a verbal altercation. The argument eventually turned physical, with Ford stabbing Gaddy in the eye with a steak knife. According to Gaddy, Ford was acting as the aggressor, but Ford claimed that she was acting in self-defense. No one witnessed the fight, but the maid, Willie O’Quinn, saw the immediate aftermath.

¶ 3. Gaddy was working behind the front desk and Ford was mopping the lobby when the conflict began. According to Gaddy, Ford called someone on the lobby phone to pick her up from work. Ford hung up the phone, and as she was picking up the caution sign off the floor she mumbled “f — ing b — .” Ford then walked back into the kitchen to finish cleaning up from breakfast.

¶ 4. According to Ford, Gaddy provoked this incident by walking across the freshly mopped floor. Ford had asked Gaddy to use the back entrance to avoid the wet floor that she was mopping, but Gaddy responded “shut the hell up; you’re not my m — er f — ing boss.” Ford admitting calling Gaddy a “b — ” and said that she called her boyfriend to pick her up early to avoid any further confrontation.

¶ 5. Gaddy testified that after Ford returned to the kitchen, she left her desk to tell their boss about the incident. Gaddy went into the laundry room adjacent to the kitchen, where Willie O’Quinn was working. Gaddy did not see her boss, so she turned around to leave. As she left the laundry room, Gaddy said “if somebody don’t leave me alone, I’m going to kick their a-.” According to Gaddy, Ford met her at the kitchen door with her hand behind her back and asked Gaddy, “do you want to kick somebody’s a — ?” Ford then pulled a knife from behind her back and held it at her side. At this point, Ford raised the knife in the air and began swinging both arms. Gaddy began pushing and kicking Ford, and Ford stabbed her once in the eye. Ford stood above Gaddy for a moment, ran into the kitchen, and then ran out the door into a waiting car.

¶ 6. Ford’s version of events was quite different. She testified that while she was in the kitchen, she overheard Gaddy say, “No, I’m not crazy, but I’m fixing to go in here and go crazy on somebody’s a — .” Ford then went to the kitchen door to look for her ride, but Gaddy was blocking her way to the lobby. Ford testified that she returned to her duties, but when she tried to look for her ride again, Gaddy was still there. According to Ford, Gaddy screamed, “get out of my face,” and grabbed Ford by the neck. Gaddy then began kicking and choking Ford. Unable to get away from Gaddy’s grasp, Ford reached in her pocket and found a steak knife which she always carried with her at work. Ford testified that she struck Gad-dy once, but did not know where. When Gaddy started to scream, Willie O’Quinn came out of the laundry room. Ford testified that she was in a state of shock at this point. She ran to get her purse from the kitchen cabinet, leaving the knife where her purse had been. Ford then left with her boyfriend, but said that she called the hotel later that day and talked to both her boss and the police about the incident.

¶ 7. Willie O’Quinn testified that she ran out of the laundry room when she heard screaming. She saw Gaddy grabbing her eye and Ford standing close by with a knife in her hand. Contrary to Gaddy’s testimony, O’Quinn said that Gaddy had not entered the laundry room earlier to look for their boss.

¶ 8. The next day, Detective Keith Den-son called Ford and asked her to come to the police station. At the station, Detective Denson read Ford her Miranda rights and asked her to make a formal statement. The statement was essentially the same as Ford’s trial testimony, with Ford claiming that she was acting in self-defense.

¶ 9. The jury found Ford guilty of aggravated assault, and the trial judge sentenced Ford to seventeen years in custody.

Issues

¶ 10. Ford raises various issues on appeal which fall into five categories: (1) jury instructions; (2) improper evidence; (3) prosecutorial misconduct; (4) insufficient evidence; and (5) excessive sentence.

Discussion

I. Jury Instructions.

¶ 11. On review, “[j]ury instructions are to be read together and taken as a whole with no one instruction taken out of context.” Austin v. State, 784 So.2d 186, 192 (Miss.2001). “A defendant is entitled to have jury instructions given which present his theory of the case, however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Howell v. State, 860 So.2d 704, 745 (Miss.2003) (citing Heidel v. State, 587 So.2d 835, 842 (Miss.1991)). “We will not find reversible error where the instructions actually given, when read together as a whole, fairly announce the law of the case and create no injustice.” Adkins v. Sanders, 871 So.2d 732, 736 (Miss.2004) (internal citations and quotations omitted).

(A) Self-Defense Instructions.

¶ 12. Ford argues that the jury instructions regarding self-defense incorrectly stated the law by requiring her to prove that the victim was acting with an intent to kill. At trial, the court granted the following instructions offered by the State:

S — 2: The Court instructs the Jury that to make an assault justifiable on the grounds of self-defense, the danger to the defendant must be either actual, present and urgent, or the defendant must have reasonable [sic] to apprehend a design on the part of the victim to kill her or to do her some great bodily harm, and in addition to this she must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the ground upon which the defendant acts,

(emphasis supplied).

S-3: The Court instructs the Jury that a person may not use more force than reasonably necessary to save her life or protect herself from great bodily harm. The question of whether she was justified in using the weapon is for determination for the jury.
The law tolerates no justification and accepts no excuse for an assault with a deadly weapon on the pleas of self defense except that the assault by the defendant on the victim was necessary or apparently so to protect the defendant's own life or her person from great bodily injury and there was immediate danger of such design being accomplished. The danger to life or of great personal injury must be or reasonably appears to be imminent and present at the time the defendant commits the assault with a deadly weapon. The term “apparent” as used in “apparent danger” means such overt, actual demonstration by conduct and acts of a design to take life or do some great personal injury as would make the assault apparently necessary to self preservation.

(emphasis supplied).

¶ 13. Ford argues, as she did at trial, that she is only required to prove that she was in danger of serious bodily harm, not death, to claim self-defense for aggravated assault. The State counters that the use of the conjunction “or” remedies the alleged defect. This Court agrees. Both instructions make clear that Ford could act in self-defense if she perceived the victim intended to kill or cause serious bodily harm. Therefore, these instructions did not misstate the law regarding self-defense.

(B) Lesser-included Offense Instruction.

¶ 14. Ford argues that the trial court should have granted a jury instruction on the lesser-included offense of simple assault. When reviewing the denial of a lesser-included offense instruction, this Court “[takes] the evidence in the light most favorable to the accused and consider[s] all reasonable favorable inferences which may be drawn in favor of the accused from the evidence.” Ormond v. State, 599 So.2d 951, 961 (Miss.1992) (quoting Mease v. State, 539 So.2d 1324, 1330 (Miss.1989)). “Only where the evidence could only justify a conviction of the principal charge should a lesser offense instruction be refused.” Mease, 539 So.2d at 1330 (emphasis in original) (citations omitted). To be entitled to a lesser-included offense instruction, Ford must point to evidence from which a jury could reasonably find her not guilty of aggravated assault and at the same time find her guilty of simple assault. Ladnier v. State, 878 So.2d 926, 932 (Miss.2004) (citing Toliver v. State, 600 So.2d 186, 192 (Miss.1992)).

¶ 15. Because Ford used a deadly weapon, there must be evidence that she acted negligently in causing harm to Gad-dy: “A person is guilty of simple assault if he ... negligently causes bodily injury to another with a deadly weapon.” Miss. Code Ann. § 97-3-7(1) (Rev.2006). In the present case, it is undisputed that Ford intentionally stabbed Gaddy. According to her own testimony, Ford struck Gaddy with the knife in self-defense:

She [Gaddy] grabbed me around my neck, and she went to choking me and choking me. And the only thing I did was grabbed her around her wrist and tried to get her arms away from around my neck.
And she went to kicking me and choking me and kicking me and choking me. And so I grabbed her arms, and I just kind of tussled with her to get her arms away from around my neck, but I couldn’t get her away from around my neck.
So I went to feeling in my pockets. I had on a scrub with two pockets on it, and I went to feeling off in my pockets. And once I felt off in my pockets I felt the knife, and I came out with the knife, and I struck her one time.

There is simply no evidence in the record that Ford acted negligently. Therefore, because the evidence can only support a charge of aggravated assault, the trial court did not err in refusing to grant a jury instruction on the lesser-included offense of simple assault.

II. Admissibility of Evidence.

¶ 16. The standard of review governing the admissibility of evidence is whether the trial court abused its discretion. Peterson v. State, 671 So.2d 647, 655 (Miss.1996) (citing Baine v. State, 606 So.2d 1076, 1078 (Miss.1992); Wade v. State, 583 So.2d 965, 967 (Miss.1991)). This Court must first determine if the proper legal standards were applied. Peterson, 671 So.2d at 655-56 (citing Baine, 606 So.2d at 1078). If the trial court applied an improper legal standard, resulting in prejudice to the accused, then a reversal is warranted. Id. at 656 (citing Parker v. State, 606 So.2d 1132, 1137-1138 (Miss.1992)).

(A) Testimony Regarding the Injury.

¶ 17. Ford argues that the trial court erred in admitting testimony from Gaddy’s treating physician, Dr. Hussein Wafapoor, on the nature and extent of Gaddy’s injury. Ford argues that this evidence was irrelevant and highly prejudicial.

¶ 18. Before trial, the defense moved to prohibit testimony from Dr. Wafapoor regarding the extent of Gaddy’s injury, arguing that the State was not required to prove that the injury was serious in nature. The trial court granted the motion in part, ruling that Dr. Wafapoor could testify about the injury but that he could not testify about any rehabilitation, such as medical expenses, recovery time, and number of surgeries.

¶ 19. At trial, Dr. Wafapoor testified that Gaddy’s injury was severe as she had lost more than ninety percent of her vision in the injured eye. He stated that a sharp object had penetrated the eyelid and eye about six millimeters, ultimately hitting the nasal bone. When asked what amount of force was used, Dr. Wafapoor testified that the injury was “self-explanatory,” and that “you can assume there was some force.”

¶20. Ford argues that this testimony should have been excluded as it was irrelevant and highly prejudicial under Mississippi Rules of Evidence 401, 402, and 403. Because “[ejvidence which is not relevant is not admissible,” our first inquiry is whether the evidence was relevant to proving the State’s case. M.R.E. 402; Johnson v. State, 475 So.2d 1136, 1144 (Miss.1985). “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” M.R.E. 401. Under Mississippi Code Section 97—3—7(2)(b), “a person is guilty of aggravated assault if he ... attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.” (emphasis supplied). While Ford is correct that the State need not prove “serious” bodily harm under the statute, the extent of Gaddy’s injury is relevant to prove that the bodily harm was caused by means “likely to produce ... serious bodily harm.” Miss.Code Ann. 97—3—7(2)(b) (Rev.2006).

¶ 21. This Court has held that “[t]he essence of the offense of aggravated assault is that the accused has knowingly caused bodily injury to another with a deadly weapon likely to produce death or serious bodily harm. In this setting it is competent for the victim to describe the nature and extent of the injuries she has received.” Cooley v. State, 495 So.2d 1362, 1364 (Miss.1986). See also Norris v. State, 490 So.2d 839, 848 (Miss.1986). Likewise, medical testimony on the extent of an injury is relevant to proving an essential element of aggravated assault.

¶ 22. We next determine whether the evidence was more prejudicial than probative. “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” M.R.E. 403. Ford does not point to any specific testimony from Dr. Wafapoor, and argues simply that the evidence was “inflammatory and prejudicial.” Dr. Wafapoor’s testimony was relevant on the issue of whether Ford used force likely to produce serious bodily harm, and the probative value of this brief testimony was not “substantially outweighed by the danger of unfair prejudice.” Thus, it cannot be said that the trial judge abused his discretion in allowing this evidence, and this argument is without merit.

(B) Testimony in Violation of PreTrial Order.

¶23. Ford also argues that the trial court failed to abide by its pre-trial ruling restricting Dr. Wafapoor from discussing Gaddy’s rehabilitation. Again, Ford does not point to any specific testimony, and none of Dr. Wafapoor’s testimony addresses the victim’s rehabilitation. Furthermore, defense counsel never objected to his testimony on the ground that it violated the trial court’s pre-trial order. For these reasons, this issue is without merit.

(C) Testimony Regarding Cause of Injury.

¶ 24. Ford’s final argument regarding Dr. Wafapoor is that he should not have been allowed to testify that a knife could have caused Gaddy’s injury. At trial, defense counsel requested that the court prohibit the prosecution from asking if the knife in evidence caused Gaddy’s injury. The court held a hearing and ruled that Dr. Wafapoor could testify that Gaddy’s injury was consistent with a knife wound, but that he could not testify that any particular type of knife was used. On direct examination, Dr. Wafapoor was asked, “would a knife be consistent with the penetrating wound that you saw to Misty Gaddy’s eye?” to which he responded, “yes.”

¶ 25. On appeal, Ford argues that this testimony was prejudicial, speculative, and outside the doctor’s area of expertise. Ford cites Edmonds v. State, 955 So.2d 787 (Miss.2007), cert. denied, — U.S. -, 128 S.Ct. 708, 169 L.Ed.2d 557 (2007), and Foster v. State, 508 So.2d 1111 (Miss.1987). In each case this Court found that expert testimony regarding the manner of the victim’s death was highly speculative and misled the jury on an essential, disputed fact. Edmonds, 955 So.2d at 792 (expert testimony that wound was consistent with two people holding gun held inadmissible); Foster, 508 So.2d at 1118 (expert testimony that knife found in defendant’s car could have caused victim’s wound held more prejudicial than probative).

¶ 26. The problem with Ford’s argument is that the cause of Gaddy’s injury is undisputed. Unlike Edmonds and Foster, in the present case there is no danger of misleading the jury when the fact in question is admitted by the defendant.

(D) Photographs of the Injury.

¶ 27. Ford next argues that the trial court abused its discretion by allowing the State to introduce two photographs of the injury. Again, Ford argues that this evidence was irrelevant and prejudicial because the State was not required to prove “serious” bodily injury. However, as with Dr. Wafapoor’s testimony, the photographs were relevant to prove that Ford used “means likely to produce death or serious bodily harm.” Miss.Code Ann. 97-3-7(2)(b) (Rev.2006). Additionally, the two Polaroids are small and blurry and are not particularly gruesome. See Woodward v. State, 726 So.2d 524, 584-535 (Miss.1997) (“Photographs of bodies may nevertheless be admitted into evidence in criminal cases where they have probative value and where they are not so gruesome or used in such a way as to be overly prejudicial or inflammatory.”) (quoting Sudduth v. State, 562 So.2d 67, 70 (Miss.1990)). The trial court did not abuse its discretion by finding that the probative value of these photographs outweighed any danger of unfair prejudice.

(E) Photographs of the Hotel Doors.

¶28. Ford argues that the trial court erred in admitting photographs of the outside hotel doors because they lacked the appropriate foundation.

¶ 29. In her statement to the police, which was admitted during Detective Den-son’s testimony, Ford said that her boyfriend had witnessed the incident while parked in front of the hotel. However, Detective Denson testified that when he visited the crime scene around noon, he could not see the kitchen area from the outside because of a glare on the glass doors. The State then introduced two photographs of the outside doors, which depicted the sun’s glare on the glass. Ford objected, arguing that these photographs were inadmissible as they lacked a proper foundation. The trial judge allowed the photographs to be admitted because the detective testified that they accurately represented the doors as they appeared during his investigation.

¶ 30. Although Ford briefly references Mississippi Rules of Evidence 401, 402 and 403, her argument is based on Rule 901, which governs authentication: “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” M.R.E. 901(a). Because Detective Denson testified that the photographs accurately represented the hotel doors at the time of his investigation, the photographs were properly authenticated and the trial court did not err by overruling Ford’s objection. See Smith v. State, 792 So.2d 343 (Miss.Ct.App.2001) (officer’s testimony that photographs accurately depicted the victim on the night of assault was sufficient authentication).

III. Closing Arguments.

¶ 31. Ford argues that improper remarks made during the State’s closing argument unduly prejudiced the jury and denied her fundamental right to a fair trial. Attorneys are allowed substantial leeway in their arguments, provided their arguments remain within the facts in evidence, reasonable deductions and conclusions that may be drawn from the facts, and the application of the law to the facts. Ivy v. State, 589 So.2d 1263, 1266 (Miss.1991) (citing Craft v. State, 271 So.2d 735, 737 (Miss.1973) and Davis v. State, 530 So.2d 694, 701-02 (Miss.1988)). “The test to determine if an improper argument by a prosecutor requires reversal is whether the natural and probable effect of the prosecuting attorney’s improper argument created unjust prejudice against the accused resulting in a decision influenced by prejudice.” Logan v. State, 773 So.2d 338, 350 (Miss.2000) (citing Dunaway v. State, 551 So.2d 162, 163 (Miss.1989)).

¶ 32. Throughout the State’s closing arguments, defense counsel made several objections. The defendant makes reference to all of the objections in her brief, but does not explain how each comment was prejudicial. Without any explanation, it is not readily apparent how the comments infringed Ford’s right to a fair trial. After reading the closing arguments, only one comment appears improper on its face:

State: Take all the instructions, and look at her statement. Because let me tell you what guilty people do.
Guilty people flee the scene—
Defense: Your Honor, we’re going to have to object. There’s no instruction on the law on flight from the scene in this case.
State: Your Honor, she left the scene.
Court: She can argue she left the scene but not what guilty people do. Sustained as to that.
Defense: I’m sorry, but flight is not an instruction in this case, and they can’t argue that.
State: I’m not arguing flight.
Court: Sustained as to that.
Defense: Thank you.

(emphasis supplied).

¶ 33. While the statement “guilty people flee” may have been improper, Ford’s objection was sustained, and she did not ask for a cautionary instruction. This Court has held “where an objection is sustained, and no request is made that the jury be told to disregard the objectionable matter, there is no error.” Minor v. State, 831 So.2d 1116, 1123 (Miss.2002) (quoting Perry v. State, 637 So.2d 871, 874 (Miss.1994)). Because Ford did not ask the judge to admonish the jury, she is barred from arguing any error on appeal.

¶ 34. Ford also argues that the trial judge showed “a dangerously biased position” by “sustaining] virtually every objection made by prosecutors during defense counsel’s closing and overruling] virtually every defense objection made on the same point.” Ford references three objections made by the State during defense counsel’s closing arguments but does not explain why they should have been overruled. Without further explanation or citation to law, the Court cannot find any error or judicial bias which would warrant reversal.

IV. Insufficient Evidence.

¶ 35. When reviewing a case for sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The evidence must show “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.” Id. (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). If “reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,” the evidence will be deemed to have been sufficient, Id.(quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶36. Ford argues that the State failed to produce sufficient evidence that she did not act in self-defense. The crux of her argument is that Misty Gaddy was not a credible witness. This Court has repeatedly stated that the jury is the sole judge of the credibility of the witness. Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980). “[W]hen the evidence is conflicting, the jury will be the sole judge of the credibility of witnesses and the weight and worth of their testimony. This wise rule applies with equal force to the state’s witnesses and the appellant’s witnesses, including the appellant himself.” Id. Because Gaddy’s testimony was sufficient to prove that Ford was the aggressor, and therefore committed aggravated assault, this assignment is without merit.

Y. Excessive Sentence.

¶ 37. Following the verdict, Ford asked for a pre-sentence investigation. The trial judge denied the request, stating that the court was aware the defendant had children and did not think a report was necessary. The judge then sentenced Ford to seventeen years — three years less than the maximum — finding it to be “one of the worst aggravated assaults” the court had presided over. In post-trial hearings, the trial judge reiterated the severity of the crime and the permanence of the injury.

¶ 38. Ford argues that her sentence was excessive and has characterized this as a violation of “the fundamental rights of equal protection and due process of law.” Her analysis actually focuses on the right to equal protection, the right to a trial by jury, and the prohibition against cruel and unusual punishment. U.S. Const. amends. VI, VIII and XIV, § 1; Miss. Const. art. 3, § 28.

A. Proportionality.

¶ 39. It is well established that this Court will not disturb a sentence where it does not exceed the maximum period allowed by statute. Williams v. State, 794 So.2d 181, 188 (Miss.2001) (citing White v. State, 742 So.2d 1126, 1135 (Miss.1999)). However, a sentence that is grossly disproportionate to the crime committed may be reviewed on Eighth Amendment grounds. Id. Unless a “threshold comparison of the crime committed to the sentence imposed leads to an inference of ‘gross disproportionality,’ ” the Court will not engage in the analysis set forth in Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). White, 742 So.2d at 1135 (citing Hoops v. State, 681 So.2d 521, 538 (Miss.1996)).

¶ 40. Although seventeen years is a severe sentence, it does not lead to an inference of “gross disproportionality.” Aggravated assault with a deadly weapon is a serious, violent crime, and a sentence of seventeen years does not meet the threshold requirement for Solem proportionality review.

¶ 41. Ford correctly points out that this Court has vacated and remanded sentences even though an initial comparison of the crime and the sentence did not suggest “gross disproportionality.” See White, 742 So.2d 1126; and Davis v. State, 724 So.2d 342 (Miss.1998). Both White and Davis were first-time offenders who were convicted of selling a small amount of cocaine and sentenced to the maximum term of sixty years. White, 742 So.2d at 1137; Davis, 724 So.2d at 343. This Court vacated their sentences, finding that there was nothing in the records to demonstrate the imposition of the maximum sentence. White, 742 So.2d at 1137; Davis, 724 So.2d at 344. Because the trial judge did not use discretion in and simply opted for the maximum penalty, this Court remanded the cases for reconsideration. White, 742 So.2d at 1137-38; Davis, 724 So.2d at 344.

¶ 42. The present case is distinguishable. Even though Ford was a first-time offender and the trial judge denied the request for a pre-sentence investigation, he repeatedly expressed concerns about the severity of the crime. Additionally, unlike the sale of a controlled substance, aggravated assault is a violent crime, which carries a sentence of up to twenty years. Miss. Code Ann. § 97-3-7(2) (Rev. 2006). Unlike Davis and White, Ford was not sentenced to the maximum penalty.

B. Jury Trial.

¶ 43. Ford also argues that she was denied her Sixth Amendment right to a jury trial when the judge made specific findings of egregiousness in sentencing her to seventeen years. The general rule is “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury.” Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435, 455 (2000).

¶ 44. Ford cites Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), in which the United States Supreme Court invalidated California’s determinate sentencing law. Id. Upon a jury verdict of guilty, the California law required that the defendant be sentenced to twelve years. Id., 127 S.Ct. at 860. However, if the judge found certain aggravating circumstances by a preponderance of the evidence, the judge could increase the sentence to sixteen years. Id. Relying on the Court’s Sixth Amendment jurisprudence, including Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and Apprendi 530 U.S. 466, 120 S.Ct. 2348, the Court held that the California statute violated a defendant’s right to a jury trial because it allowed the trial judge to impose a greater sentence beyond the “statutory maximum.” Cunningham, 127 S.Ct. at 871. The Court noted that the “relevant statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Id., 127 S.Ct. at 860 (quoting Blakely, 542 U.S. at 303-04, 124 S.Ct. 2531 (2004) (emphasis in original)).

¶ 45. Cunningham is clearly distinguishable because under Mississippi Code Section 97-3-7(2), the “relevant statutory maximum” is twenty years. The statute allows a trial judge to impose a sentence of up to twenty years “without any additional findings.” Cunningham, 127 S.Ct. at 871. Thus, the seventeen-year sentence does not violate Ford’s right to a trial by jury because it is not “beyond the prescribed statutory maximum.” Id.

C. Equal Protection.

¶ 46. Ford also argues that her right to equal protection was violated because her sentence exceeds other sentences given for aggravated assault convictions both in Hinds County and other jurisdictions. Ford includes two charts in her brief. The first chart lists twenty-three other sentences for aggravated assault handed down by the Hinds County Circuit Court during the October 2004 term. Certified copies of these sentences are included in the record. The second chart lists eleven sentences for aggravated assault handed down during the same time period in Harrison and Washington Counties.

¶ 47. Twenty of the twenty-three sentences in Hinds County were issued by the same trial judge who sentenced Ford. These sentences range from five to twenty years, with zero to twenty years to serve. The average sentence issued by this judge is 11.8 years, and the average time to serve is 7.25 years.

¶ 48. Ford argues that this record demonstrates “invidious discrimination” because the trial judge improperly sentenced her “in comparison with other criminal defendants similarly situated.” She specifically refers to the case of Cedric Stewart, who was sentenced to fourteen years for aggravated assault with a handgun. The record contains a certified copy of the transcript for Stewart’s guilty plea. Stewart shot his unarmed victim in the buttocks, and the bullet exited through the victim’s penis. The incident occurred in a residential area with children watching, and the victim was permanently injured. Ford argues that this crime was much worse than her act of alleged self-defense, but the same judge sentenced Stewart to three years less than Ford.

¶ 49. Beyond the heavy burden required to prove discriminatory intent—see Scott v. State, 878 So.2d 933, 993 (Miss.2004)—the fatal flaw with Ford’s equal protection argument is that she does not tell this Court against what class of persons the trial judge was allegedly discriminating. “ ‘Equal protection’ ... emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable.” Ross v. Moffitt, 417 U.S. 600, 609, 94 S.Ct. 2437, 2443, 41 L.Ed.2d 341, 350 (1974). For example, she may have argued that she received a harsher sentence because she was black and her victim was white. See Scott, 878 So.2d at 994 (examining claim that black defendants who kill white victims are 500% more likely to receive the death penalty). However, because Ford does not indicate to this Court that she belonged to any certain class and that she received unequal treatment because of her class status, equal protection analysis cannot apply.

Conclusion

¶ 50. For the foregoing reasons, the Court finds no reversible error, and Ford’s conviction and sentence are affirmed.

¶ 51. CONVICTION OF AGGRAVATED ASSAULT WITH A WEAPON AND SENTENCE OF SEVENTEEN (17) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, GRAVES, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR.


author: RANDOLPH, Justice, EASLEY, Justice,

text:
    FRANKLIN COUNTY MEMORIAL HOSPITAL v. MISSISSIPPI FARM BUREAU MUTUAL INSURANCE COMPANY.
    No. 2007-CA-00142-SCT.
    Supreme Court of Mississippi.
    Feb. 28, 2008.

      Robert Lee Grant, Timothy Dale Craw-ley, Ridgeland, Lane B. Reed, Meadville, attorneys for appellant.
    Sam Starnes Thomas, attorney for ap-pellee.
   RANDOLPH, Justice,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Boyce Dover filed suit against Franklin County Memorial Hospital (“FCMH”) and Sydneye Marie Jordan (“Jordan”), an employee of FCMH, for personal injuries related to an automobile accident between Dover and Jordan.

¶ 2. At the time of the accident, Jordan was operating her personal vehicle. Dover alleged he was standing in a marked crosswalk when he was struck and injured by Jordan’s vehicle. Jordan was on an errand on behalf of her employer, FCMH. In Dover’s complaint, he alleged that Jordan was acting within the course and scope of her employment with FCMH. FCMH and Jordan stipulated she was acting in the course and scope of her employment at the time of the accident.

¶ 3. After the complaint was filed, Dover agreed to dismiss Jordan, in her individual capacity, as a defendant. The agreed order dismissed Jordan with prejudice as to all claims which were or could have been raised against her. The basis of the dismissal was as follows:

The parties agree and stipulate that on June 14, 2002 between the hours of 10:45 and 11:30 Sydneye Marie Jordan was in the course and scope of her employment with Franklin County Memorial Hospital when the incident involving the Plaintiff, Boyce Dover, and the vehicle driven by the Defendant, Sydneye Marie Jordan, occurred.

¶ 4. FCMH sought leave of court without objection from Dover to file a complaint for declaratory judgment against Mississippi Farm Bureau Mutual Insurance Company (“Farm Bureau”), the insurer of Jordan’s vehicle. The trial court entered an agreed order to that effect.

¶5. In its complaint for declaratory judgment, FCMH alleged that Farm Bureau had a duty to defend FCMH as its insured; to reimburse FCMH its costs, expenses and attorneys’ fees expended to defend Dover’s lawsuit; and to indemnify FCMH as to any judgment against it. FCMH relied upon the language defining “insured” in Jordan’s insurance policy with Farm Bureau, which provided:

[T]he unqualified word “Insured” means the named Insured and, if the named Insured is an individual, his spouse, and also any person while using the Automobile and any person or organization legally responsible for its use, provided the actual use of the Automobile is by the named insured or spouse or with permission of either....

¶ 6. FCMH contended it clearly met the definition of “organization legally responsible” and thus, would qualify for coverage under the policy issued by Farm Bureau.

¶ 7. Farm Bureau responded to FCMH’s complaint for declaratory judgment by asserting that FCMH lacked standing to maintain or attempt to maintain the claims alleged against Farm Bureau. Farm Bureau additionally asserted an affirmative defense that “liability, if any, of FCMH as to the matter or matters at issue arises from and flows through the Mississippi Tort Claims Act [MTCA].” Farm Bureau further asserted that Farm Bureau and Jordan were “immune from any liability on the claim or claims attempted to be stated by FCMH,” and that the MTCA prohibited FCMH’s claim against Farm Bureau.

¶ 8. The trial court took under advisement FCMH’s motion for partial summary judgment against Farm Bureau. The case was set for a bench trial as to Dover’s claims against FCMH. At the conclusion of the bench trial, the trial court awarded Dover a judgment in the amount of $55,000, finding FCMH’s employee, Jordan, to be ninety percent at fault and Dover ten percent at fault, resulting in a final judgment for Dover in the amount of $49,500 against FCMH. FCMH argued that, based on the “Insured” language of the policy, Farm Bureau was responsible for paying the damages.

¶ 9. The trial court subsequently entered its final judgment addressing FCMH’s claim against Farm Bureau for indemnification under FCMH’s complaint for declaratory judgment. The trial court granted summary and final judgment for Farm Bureau on the claims of FCMH and dismissed FCMH’s action against Farm Bureau with prejudice.

¶ 10. FCMH timely appealed to this Court. The issue before this Court is whether the trial court erred in granting summary and final judgment on behalf of Farm Bureau, as to the claims of FCMH.

STANDARD OF REVIEW

¶ 11. “We employ the de novo standard in reviewing a trial court’s grant of summary judgment. The moving party shall be granted judgment ‘if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Callicutt v. Prof'l Servs. of Potts Camp, Inc., 974 So.2d 216, 219 (Miss.2007) (citations omitted). See also Miss. R. Civ. P. 56(c).

ANALYSIS

¶ 12. The order of dismissal as to Jordan was agreed to by all parties, including FCMH. In its final judgment, the trial court found this order of dismissal to operate to “fully and completely release Jordan’s auto insurance carrier, the Third-party Defendant, Mississippi Farm Bureau Insurance Company, from any responsibility and/or coverage.”

¶ 13. The dismissal of claims against Jordan, in her individual capacity, was premised upon the Mississippi Tort Claims Act, as Jordan was acting within the course and scope of her employment with FCMH. See Miss.Code Ann. § 11-46-1, et seq. (Rev.2002). Farm Bureau asserts the statutory immunity granted to Jordan should be extended to Farm Bureau, as the liability insurer of Jordan, without addressing that FCMH is also an insured. Farm Bureau relies on a portion of Mississippi Code Annotated Section 11-46-7(5). “A governmental entity shall not be entitled to contribution or indemnification, or reimbursement for legal fees and expenses from its employee unless a court shall find that the act or omission of the employee was outside the course and scope of his employment.” (Emphasis added).

¶ 14. FCMH submits the trial court erred in holding that the dismissal of Jordan individually also served to act as a release of her insurance carrier, as FCMH was an “Insured” under the policy. FCMH contends that while it is a “public entity” as defined by the Mississippi Tort Claims Act, the Mississippi Tort Claims Act “does not contain any language which could be construed as limiting the right of a ‘public entity’ to be an ‘insured’ under a policy of insurance.”

¶ 15. In its finding that the Order of Dismissal of Jordan applied both to Jordan and Farm Bureau, the trial court strayed from the pivotal issue by focusing on the absence of Jordan’s personal liability to Dover. However, Jordan’s personal immunity does not absolve FCMH from liability for Jordan’s negligence. As FCMH was declared liable, the focus of the inquiry should have been whether FCMH was an insured under the Farm Bureau policy, and if so, whether FCMH was entitled to the protections afforded by the liability coverage provisions.

Pursuant to the application of the common law theory of respondeat superior, an employer is generally held to be vicariously “legally responsible” for its employees’ negligent driving. The employer is thus an omnibus insured under the terms of the policy covering the vehicle being driven by the employee. This principle will only have application when the vehicle is driven during the course of the employee’s employment or within the scope of the permission given by the employer.

8 Lee Russ & Thomas Segalla, Couch on Insurance § 111:42 (2005).

¶ 16. Farm Bureau’s argument that Mississippi Code Annotated Section 11-46-7(5) and this Court’s decision in Mozin-go v. Scharf, a medical malpractice case, are applicable is unpersuasive. Mozingo is clearly distinguishable, as it held that whether an employee of a governmental entity possesses “liability insurance is irrelevant to the inquiry as to whether he enjoys immunity under the MTCA.” Mozingo v. Scharf, 828 So.2d 1246, 1255-56 (Miss.2002). Although the holding references an attorney general opinion that a “governmental employee’s personal policy is not subject to exposure for injuries resulting from torts committed during the course and scope of employment,” this attorney general opinion did not address whether the governmental entity was likewise an insured under the employee’s policy of insurance. See Miss. Att’y Gen. Op. No. 96-0053 (Feb. 16, 1996) (emphasis added). Accordingly, the Mozingo Court did not address the issue presented in this case, i.e., whether FCMH is an insured under the policy, and if so, what are the obligations of the insurer? FCMH is seeking neither contribution nor indemnification from its employee, Jordan. Since FCMH is not seeking contribution or indemnification, or reimbursement for legal fees and expenses from its employee, analysis of that portion of the Mississippi Tort Claims Act is neither necessary nor warranted.

¶ 17. The facts are undisputed that Jordan was acting in the course and scope of her employment at the time of the accident. Jordan’s immunity, however, is of no consequence in determining whether Farm Bureau was contractually required to respond to Dover’s action versus FCMH.

¶ 18. The case sub judice is most analogous to United States v. Myers. In Myers, a suit was instituted to recover for injuries and damages “sustained in an automobile accident involving an automobile owned and operated by a United States employee, Elwood C. Pugh, who at the time of the accident was acting in the course and scope of his employment.” United States v. Myers, 363 F.2d 615, 617 (5th Cir.1966). At the time of the accident, Pugh’s automobile liability policy defined as insured, “ ‘any other person or organization legally responsible for the use of [the insured automobile]....’” Id. In its ruling, the Fifth Circuit held:

But nowhere in the amendments is there any indication that Congress intended to preclude recovery by the United States from the employee’s liability carrier, where the employee has voluntarily, albeit unnecessarily, included the United States as an “insured” under his policy. The court below found this intent implied from the fact that Congress did not expressly include within the amendments authority for the United States to proceed against its employees’ insurers. However these amendments had as their purpose the protection of Government employees from personal liability arising from automobile accidents negligently caused by them; they were not designed to, and should not be held to, affect the rights created by and existing by virtue of insurance contracts taken out by Government employees. Plainly Government employees no longer need to insure against automobile accidents occurring while they are acting within the scope of their Government employment; but nothing prohibits them from doing so if they so choose.

Id. at 620.

¶ 19. Unquestionably, FCMH is an additional insured under the Farm Bureau policy. As such, it is entitled to the contractual benefits provided by the language of the Farm Bureau policy, which clearly and unambiguously covers employers as insureds. If the “language in an insurance contract is clear and unambiguous, then the court should construe it as written.” Jackson v. Daley, 739 So.2d 1031, 1041 (Miss.1999) (citation omitted).

¶ 20. The pertinent clause of the Farm Bureau policy declares, “Under Coverages A and B, the unqualified word ‘Insured’ means the named Insured ... any person or organization legally responsible for its use, provided the actual use of the automobile is by the named Insured or spouse or with permission of either.” (Emphasis added).

¶ 21. Neither party questions that FCMH was an organization legally responsible for the use of the auto with the permission of the named insured, Jordan. Although FCMH was not the named insured, the “same duty is owed to an unnamed party to a contract and a named party.” Grange Mut. Cas. Co. v. United States Fid. and Guar. Co., 853 So.2d 1187, 1191 (Miss.2003). “The insured may be named within the policy or may be identified by description.... If the description of the insured within the policy is sufficient to identify who is protected, the insured does not have to be specifically named.” 3 Lee Russ & Thomas Segalla, Couch on Insurance § 40:3 (2005).

¶ 22. Since this Court has never defined an “organization legally responsible,” we seek guidance from other courts called upon to define the term. Recognized treatises such as Appleman’s Insurance Law and Practice and Blashfield’s Automobile Law and Practice, along with numerous courts throughout the land, agree with the Fifth Circuit, which opined,

In very plain language [the] policy insures any ‘person or organization legally responsible for the use’ of the insured automobile. The only question in the court below was, and in this court is, whether the United States may qualify as an additional ‘insured’ under this language. And we are convinced that this no longer is a question to be answered by applying the usual rules of contract construction. On the contrary, an unbroken line of cases, presenting this very question and involving the same or very similar contract language, has definitively answered the question in favor of the United States.

¶ 23. Myers, 363 F.2d at 617-618 (citations omitted). Clearly, FCMH was an “organization legally responsible,” and as an insured, FCMH is entitled to the same benefits, protections and coverages provided by Farm Bureau to its named insured.

¶ 24. Certainly an insurer possesses the right to exclude government employers should it choose, as many insurers, including Farm Bureau, have done in specifically excluding the United States government. The policy sub judice excluded “the United States Government or any of its Agencies, Departments, or Services.” The failure of Farm Bureau to exclude [Mississippi] state or local governments or any of their agencies, departments or services validates FCMH’s claim that it is indeed an insured.

¶ 25. “Insurance contracts are construed most strongly against the party drafting the contract and most favorably for the policyholder.... The rule is based upon the doctrine of omnia praesumuntur contra proferrentem — all things are presumed against the offeror.” Jeffrey Jackson, Mississippi Insurance Law § 1:8 (2001) (citations omitted). Farm Bureau had the option of excluding state employers. “Exclusions to omnibus coverage are not implied and must be clearly stated in the policy or will be generally construed against the insurer.” 8 Russ & Segalla, Couch on Insurance at § 111.8.

¶ 26. The decision of the trial court unnecessarily intertwined the employment, and ultimately, contribution vel non issue between Jordan and FCMH, with a separate and distinct contractual dispute between FCMH and Farm Bureau. Under the four corners of Farm Bureau’s policy, FMCH was an additional insured, regardless of Jordan’s immunity and/or dismissal from the suit. “An insurer denies coverage to its insured when it fails or refuses to accord him the satisfaction it contracted to give.... ” State Farm Mut. Auto. Ins. Co. v. Talley, 329 So.2d 52, 56 (Miss.1976) (quoting North River Ins. Co. v. Gibson, 244 S.C. 393, 397, 137 S.E.2d 264, 266 (1964)) (quoting State Farm Mut. Auto. Ins. Co. v. Brower, 204 Va. 887, 134 S.E.2d 277 (1964)). Farm Bureau was contractually obligated to defend and/or indemnify FCMH as an additional insured by the language of Farm Bureau’s contract of insurance. FCMH’s coverage is not eviscerated by either the Mississippi Tort Claims Act or Jordan’s immunity thereunder.

¶27. Accordingly, we reverse and remand for proceedings consistent with this opinion.

¶ 28. REVERSED AND REMANDED.

SMITH, C.J., WALLER AND DIAZ, P.JJ., CARLSON, DICKINSON AND LAMAR, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. EASLEY, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

EASLEY, Justice,

dissenting.

¶ 29. Today’s majority opinion places an undue financial burden on many state employees who drive their own vehicles in the course and scope of their employment with the State of Mississippi. Therefore, I respectfully dissent with the majority’s opinion to reverse and remand to the Circuit Court of Franklin County. I would affirm the trial court decision which granted summary judgment in favor of Farm Bureau. I base my dissent on the fact that (1) the Mississippi Torts Claim Act (MTCA) provides that “Nothing in this Chapter shall enlarge or otherwise adversely affect the personal liability of an employee of a government entity.” Miss.Code Ann. § 11-46-7(8) (Rev.2002); (2) an employee’s personal liability will be affected by higher personal premium rates; and (3) all parties, including Franklin County Memorial Hospital (FCMH) agreed to dismiss Jordan from the suit with prejudice and with no reservation of rights or actions against Jordan’s insurance coverage by Farm Bureau.

I.

¶ 30. This Court employs the de novo standard in reviewing a trial court’s grant of summary judgment. Dearman v. Christian, 967 So.2d 636 (Miss.2007). The moving party shall be granted summary judgment “if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Miss. R. Civ. P. 56(c). “Summary judgment is mandated where the respondent has failed to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Dearman, 967 So.2d at 639. (citations omitted).

¶ 31. While this appeal involves only the dispute between FCMH and Farm Bureau, it is helpful to examine the trial court’s order dismissing Jordan. In its order of dismissal as to Jordan, the trial court stated:

[A]ll claims which were or could have been raised herein against the individual Defendant, Sydneye Marie Jordan, are hereby dismissed, with prejudice, from the above styled and numbered cause, pursuant to Section 11-46-7(2) of the Mississippi Code of 1972, as amended. The said Sydneye Marie Jordan may be retained in the pleadings and style of this case in a representative capacity, only, and no claim may be made against her, nor any Judgment rendered against her in her individual capacity.

¶ 32. The trial court conducted a bench trial as to Dover’s claim against FCMH, ultimately awarding Dover $49,500 in damages against FCMH. Following the bench trial, the trial court entered its order of final judgment as to FCMH’s claim against Third-Party Defendant Farm Bureau. The final judgment provided:

This comes before the court on the Third-Party Plaintiffs motion for partial summary judgment and also the Third-Party Defendant’s motion for summary judgment. The court previously conducted a bench trial and resolved all issues between the plaintiff, Boyce Dover[,] and the defendant, Franklin County Memorial Hospital. The parties agreed that the issue involved in the Third-Party Complaint was one of law for the court to subsequently decide.
Boyce Dover was on foot at the Wal-Mart store in Natchez, Mississippi^] on June 14, 2002. Sydneye Marie Jordan was operating a private vehicle, insured by the Third-Party Defendant, which hit Dover in the parking lot on said date. Jordan was an employee of the Third-Party Plaintiff at the time, acting within the course and scope of her employment.
Dover sued Franklin County Memorial Hospital and Jordan, specifically alleging that Jordan was within the course and scope of her employment with the hospital at the time. The initial answer of Jordan and the hospital specifically denied that allegation. Jordan and the hospital subsequently amended their answer to specifically admit that allegation. Apparently, Jordan was on an errand for the hospital at the time.
Subsequent thereto, an order of dismissal was entered upon Jordan’s motion to be dismissed. This order was agreed to by all of the parties. Included in the order was a stipulation and agreement by the parties that on the occasion in question Jordan was in the course and scope of her employment with the hospital. It further provided for the dismissal with prejudice of “all claims which were or could have been raised herein against the individual Defendant, Sydneye Marie Jordan.” Significantly, the order further provided that Jordan “may be retained in the pleadings and style of this case in a representative capacity, only, and no claim may be made against her, nor any judgment rendered against her in her capacity.”
The court subsequently found after a bench trial Jordan to be 90% at fault, with the plaintiff Dover 10% at fault, and assessed total damages at $55,000.00 resulting in a final judgment of $49,500.00. The Third-Party Plaintiff argues that Jordan’s auto liability carrier, the Third-Party Defendant, is responsible for the damages. This argument is based primarily on the language of the insurance contract. The Third-Party Defendant argues that it has no liability or responsibility due to this action being pursuant to the Mississippi Torts Claims Act and the individual order of dismissal that was entered for Jordan.
The court has found none of the authorities cited by either party to be clearly dispositive of the issue before the court. The court finds persuasive the conclusion that the clear and unambiguous language of the agreed order of dismissal with prejudice as to Jordan[,] individually, also operated to fully and completely release her individual auto insurance carrier, the Third-[P]arty Defendant, Mississippi Farm Bureau Mutual Insurance Company, from any and [all] responsibility or coverage. The court ñnds this persuasive because of the clear language of the dismissal order, and the absence of any reservation of riyhts or actions against Jordan’s private auto insurance coverage.
It is therefore ordered that summary judgment and final judgment be granted for the Third-Party Defendant, Mississippi Farm Bureau Mutual Insurance Company, on the claims of the Third-Party Plaintiff, Franklin County Memorial Hospital. It is further ordered that the Third-Party Complaint be dismissed with prejudice, with each of the parties to bear their respective costs, as already incurred.

(Emphasis added).

¶ 33. Mississippi Code Annotated Section 11-46-7 (Rev.2002) provides, in pertinent part: as follows:

(1) The remedy provided by this chapter against a governmental entity or its employee is exclusive of any other civil action or civil proceeding by reason of the same subject matter against the governmental entity or its employee or the estate of the employee for the act or omission which gave rise to the claim or suit; and any claim made or suit filed against a governmental entity or its employee to recover damages for any injury for which immunity has been waived under this chapter shall be brought only under the provisions of this chapter, notwithstanding the provisions of any other law to the contrary.
(2) Am employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable, but no employee shall be held personally liable for acts or omissions occurring within the course and scope of the employee’s duties. For the purposes of this chapter an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee’s conduct constituted fraud, malice, libel, slander, defamation or any criminal offense.
(5) A governmental entity shall not be entitled to contribution or indemnift-cation, or reimbursement for legal fees and expenses from its employee unless a court shall find that the act or omission of the employee was outside the course and scope of his employment. Any action by a governmental entity against its employee and any action by an employee against the governmental entity for contribution, indemnification, or necessary legal fees and expenses shall be tried to the court in the same suit brought on the claim against the governmental entity or its employee.
(8) Nothing in this chapter shall enlarge or otherwise adversely affect the personal liability of an employee of a governmental entity. Any immunity or other bar to a civil suit under Mississippi or federal law shall remain in effect. The fact that a governmental entity may relieve an employee from all necessary legal fees and expenses and any judgment arising from the civil lawsuit shall not under any circumstances be communicated to the trier of fact in the civil lawsuit.

(Emphasis added).

¶ 34. In Mozingo v. Scharf, 828 So.2d 1246, 1256 (Miss.2002), this Court held that under the MTCA, a governmental employee does not waive his/her immunity to the extent of the insurance policy limits if he/ she has a personal insurance policy. The Court reasoned that a governmental employee’s personal insurance policy is not subject to exposure for injuries caused by the employee in his/her capacity as an employee, during the course and scope of his/her employment. Id. The Court stated:

By having liability insurance, Dr. Scharf has not waived his immunity under the MTCA. We held in Knight v. McKee, 781 So.2d 121 (Miss.2001), that a physician who treats a patient in his capacity as an employee of UMMC does not waive his immunity by possessing professional liability insurance. Likewise, the fact that Dr. Scharf possessed liability insurance is irrelevant to the inquiry as to whether he enjoys immunity under the MTCA, See also Miss. Att’y Gen. Op. No. 96-0053, 1996 WL 88865 (Feb. 16, 1996) (stating that governmental employee’s personal policy is not subject to exposure for injuries resulting from torts committed during the course and scope of employment).

Mozingo, 828 So.2d at 1256 (emphasis added).

II.

¶ 35. Despite the fact that under the MTCA, Jordan’s personal insurance is not subject to exposure because of her role as a governmental employee acting within the course and scope of her employment as discussed above, the trial court instead reasoned that the agreed order of dismissal with prejudice as to Jordan barred any claim by FCMH against Farm Bureau. The trial court determined that the clear and unambiguous language of the agreed order of dismissal with prejudice as to Jordan, individually, operated to fully and completely release her individual auto insurance carrier, Farm Bureau, from any and all responsibility or coverage. As the trial court stated, “the clear language of the dismissal order and the absence of any reservation of rights or actions against Jordan’s private auto insurance coverage” required that summary and final judgment be granted for Farm Bureau on FCMH’s claims. The result reached by the trial court is correct.

¶ 36. Based on the facts of this case, Farm Bureau had no duty to defend or to indemnify FCMH. Therefore, the trial court’s judgment should be affirmed.

III.

¶37. The trial court properly determined that Third-Party Defendant Mississippi Farm Bureau Mutual Insurance Company was entitled to summary and final judgment with prejudice as to all claims raised by Third-Party Plaintiff Franklin County Memorial Hospital. Therefore, I would affirm the final judgment of the Circuit Court of Franklin County, Mississippi.

      . The information as to the judgment in favor of Dover is taken from the trial court’s final judgment entered December 21, 2006, regarding the complaint of FCMH against Farm Bureau, seeking a declaratory judgment.

      . "The purpose of the omnibus clause is to provide broad coverage where possible and broadly construing exclusions in a policy would be contrary to the express purpose.” 8 Lee Russ & Thomas Segalla, Couch on Insurance § 111:8 (2005).

      . The issues before the Court in Mozingo were as follows: 1) Whether the trial court erred in determining that Dr. Scharf was a state employee rather than an independent contractor, and as such, was entitled to immunity under the MTCA; 2) whether the trial court erred in determining that the practice plan, University Anesthesia Services, PLLC, was a governmental entity such that it was subject to immunity under the Mississippi Tort Claims Act; 3) whether the trial court erred in determining that Dr. Scharf did not waive his immunity under the MTCA by purchasing malpractice insurance.

      . See Government Employees Ins. Co. v. United States, 349 F.2d 83 (10th Cir.1965), cert. denied. 382 U.S. 1026, 86 S.Ct. 646, 15 L.Ed.2d 539 (1966); Adams v. United States, 241 F.Supp. 383 (S.D.Ill.1965); Purcell v. United States, 242 F.Supp. 789 (D.Minn.1965); United States v. State Farm Mut. Auto. Ins. Co., 245 F.Supp. 58 (D.Or.1965); Barker v. United States, 233 F.Supp. 455 (N.D.Ga.1964); Gahagan v. State Farm Mut. Auto. Ins. Co., 233 F.Supp. 171 (W.D.La.1964); Nistendirk v. United States, 225 F.Supp. 884 (W.D.Mo.1964); McCrary v. United States, 235 F.Supp. 33 (E.D.Tenn.1964); Patterson v. United States, 233 F.Supp. 447 (E.D.Tenn.1964); Vaughn v. United States, 225 F.Supp. 890 (E.D.Tenn.1964); Nistendirk v. McGee, 225 F.Supp. 883 (W.D.Mo.1963); Irvin v. United States, 148 F.Supp. 25 (D.S.D.1957); Rowley v. United States, 140 F.Supp. 295 (D.Utah 1956). See also 6C John Alan Appleman, Insurance Law and Practice § 4355, n. 88.25; 8 Blashfield Automobile Law and Practice § 321.11, n. 6.

      . The public policy adopted by legislative act has also ensured coverage. See Miss.Code Ann. § 63-15-43(2)(b)(Rev.2004) (emphasis added):
      (2) Such owner's policy of liability insurance:
      (b) Shall pay on behalf of the insured named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured, all sums which the insured shall become legally obligated to pay as damages arising out of the ownership, maintenance or use of such motor vehicle or motor vehicles....

      . The Court in Mozingo distinguished between a governmental entity and a governmental employee when considering waiver of immunity to the extent of its insurance coverage under the MTCA. Mozingo, 828 So.2d at 1256. The Court held: "Miss.Code Ann. § 11-46-17(4) has been interpreted by this Court as providing that only the governmental entity, not the employee, may be sued to the extent of its insurance coverage.” Id. (citations omitted).