author: ISHEE, J., BARNES, J.,

text:
    H & E EQUIPMENT SERVICES, LLC, Formerly Head & Engquist Equipment Services, LLC, Appellant/Cross-Appellee v. Thomas R. FLOYD and Thomas R. Floyd, Mason Contractors, Inc., Appellees/Cross-Appellants.
    No. 2005-CA-01675-COA.
    Court of Appeals of Mississippi.
    June 19, 2007.

      George T. Holmes, Jackson, attorney for appellant.
    Robert M. Frey, Jackson, attorney for appellees.
    Before KING, C.J., CHÁNDLER and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Head & Engquist Equipment Services, LLC (H & E) filed suit against Thomas R. Floyd and Thomas R. Floyd, Mason Contractors, Inc. (Floyd) in the Circuit Court of Simpson County, claiming damages and attorney’s fees for failure to pay an open account or, in the alternative, breach of contract. Floyd filed a counterclaim requesting actual and punitive damages for breach of contract, bad faith, and fraud. After the jury returned a verdict in favor of H & E in the amount of $45,000, the circuit court entered judgment notwithstanding the verdict, ordering that H & E take nothing and that its claims be dismissed with prejudice. The circuit court subsequently entered a final judgment denying H & E’s motion for reconsideration, as well as Floyd’s motion for attorney’s fees. Aggrieved by the court’s final judgment, both parties appeal. Finding no error, we affirm.

FACTS

¶ 2. H & E sells, rents, and services heavy equipment such as cranes, forklifts, and dirt moving equipment. Between November 1988 and April 2002, Floyd, concrete and cement contractors, entered into lease purchase agreements "with H & E for four forklifts and a rental agreement for a crane. During the course of the parties’ business relationship, H & E serviced, repaired, and replaced parts for the leased/rented equipment.

¶ 3. On November 13, 2002, H & E filed suit against Floyd in the Circuit Court of Simpson County claiming damages and attorney’s fees for failure to pay an open account or, in the alternative, breach of contract. On December 5, 2002, Floyd filed an answer and a counterclaim requesting actual and punitive damages for H & E’s alleged breach of contract, bad faith, and fraud. On July 21, 2004, the circuit court granted Floyd’s motion to dismiss and/or for summary judgment only as it pertained to H & E’s attorney’s fees under the open account statute, Mississippi Code Annotated section 11-53-81 (Rev. 2002); the circuit court denied Floyd’s motion to dismiss and/or for summary judgment in all other respects.

¶ 4: A jury trial was held on March 14 and 15, 2005. Shane Waugespack testified that he was the manager and custodian of business records at H & E’s Jackson, Mississippi branch. During Waugespack’s testimony, H & E introduced into evidence numerous documents under the business records exception. Floyd’s objections to the documents were overruled. Among the documents admitted under the business records exception were four computer-generated equipment lease forms.

¶ 5. Waugespack testified that the equipment lease forms were computer-generated documents created by a salesman after making an agreement with a customer in the “field.” On the back of the equipment lease forms, paragraph six stated that the “LESSEE assumes the responsibility for any damages to the machinery while in the LESSEE’S possession and/or care, reasonable wear and tear to be expected.” According to Waugespack, Floyd entered into its first lease-purchase agreement with H & E on November 24, 1998, for a forklift by filling out a credit application and signing a purchase order. Waugespack also testified that the terms of the agreement between H & E and Floyd were not listed on the purchase order, but they were on the back of the equipment lease form.

¶ 6. H & E introduced numerous service and repair invoices into evidence totaling approximately $56,000. H & E maintained that Floyd was responsible for paying the invoices under the terms of the parties’ agreement because the damage to the equipment, including string being wrapped around an axle, did not constitute normal wear and tear. Floyd maintained that the language on the back of the equipment lease forms did not constitute the agreement between the parties because the equipment lease forms were signed when the equipment was delivered, i.e., after the deal was originally made in the field.

¶ 7. The jury returned a verdict in favor of H & E in the amount of $45,000. On March 21, 2005, Floyd filed a motion to set aside the verdict and for judgment notwithstanding the verdict asserting that H & E offered no admissible evidence of the amount of its claimed damages and that the fine print on the back of H & E’s delivery tickets was not part of the parties’ agreement. On March 25, 2005, Floyd filed motions to alter or amend the judgment, for a new trial, and a renewed motion to set aside the verdict and for judgment notwithstanding the verdict. On April 21, 2005, the circuit court entered judgment notwithstanding the verdict ordering that H & E take nothing and that its claims be dismissed with prejudice. On April 29, 2005, H & E filed a motion for reconsideration, and Floyd filed a motion for attorney’s fees pursuant to Mississippi Code Annotated 11-53-81. On May 2, 2005, the circuit court entered an order denying Floyd’s motion to alter or amend or for a new trial. The circuit court entered a final order denying the motion for reconsideration and the motion for attorney’s fees on August 8, 2005. In order to clarify the record, a final judgment was entered on August 16, 2005, affirming the final order entered on August 8.

¶ 8. Aggrieved by the court’s decision, H & E filed a notice of appeal on August 25, 2005. H & E asserts the following issue for this Court’s review: whether the trial court erred in altering the record and granting judgment notwithstanding the verdict of the jury. Also aggrieved by the circuit court’s final judgment, Floyd filed a cross-appeal on August 26, 2005. Floyd asserts the following issue for our review: whether the trial court should have granted Floyd’s motion for attorney’s fees.

ISSUES AND ANALYSIS

I. Whether the trial court erred in altering the record and granting judgment notwithstanding the verdict of the jury.

¶ 9. Under this assignment of error, H <& E maintains that the invoices introduced during trial met the requirements for admission into evidence, pursuant to Rule 803(6) of the Mississippi Rules of Evidence, also known as the “business records” exception to the hearsay rule. H & E further maintains that if, in the alternative, the invoices were inadmissible, the trial court erred in excluding the erroneously admitted evidence when considering whether to grant Floyd’s motion for judgment notwithstanding the verdict. We will first address whether the invoices were admissible under Rule 803(6).

¶ 10. Rule 803(6) of the Mississippi Rules of Evidence provides that records of regularly conducted business activity are not excluded by the hearsay rule if the custodian or other qualified witness testifies that the records were “made at or near the time by, or from information transmitted by, a person with knowledge,” and the records were “kept in the course of a regularly conducted business activity,” and “it was the regular practice of that business” to make the records. In Ferguson v. Snell, 905 So.2d 516 (Miss.2004), the court considered whether the trial court erred in admitting computer-generated documents into evidence. The Ferguson court held that, pursuant to Rule 803(6), “the focus is properly placed on the time period when the documents were created, the trustworthiness of the documents, and whether their creation was in the regular course of business.” Id. at 519(¶ 12). Even though the computer-generated documents were not created by the employee who testified during the trial, the court determined that it was not necessary to hear testimony from each person who contributed to creating the record. Id. In finding that the testimony of the employee in Ferguson complied with the requirements of Rule 803(6), the court noted that she “testified to the contents of the document in question, which recorded every transaction on the insurance policy, and to exactly how each number on the page came to be.” Id. at 520(¶ 13). The court also noted that the employee explained how the computer system worked and how entries were made into the system. Id.

¶ 11. Contrary to Ferguson, the testimony in the case sub judice did not prove that the computer-generated invoices were sufficiently trustworthy. Although Waugespack testified that he was the custodian of the records at the Jackson branch and that the invoices were generated in the ordinary course of H & E’s business, Waugespack gave no explanation as to how the documents were created. Moreover, H & E failed to show that the computer-generated invoices, many of which were reprints, were created at or near the time the charges were incurred. Therefore, we find that the invoices failed to meet the requirements for admission under the Rule 803(6). Consequently, we now address the trial court’s decision to exclude the erroneously admitted evidence when considering Floyd’s motion for judgment notwithstanding the verdict.

¶ 12. This court employs a de novo standard of review of a trial court’s grant of a directed verdict, a peremptory instruction, and a judgment notwithstanding the verdict. White v. Stewman, 932 So.2d 27, 32(¶ 10) (Miss.2006). When reviewing the grant of a motion for judgment notwithstanding the verdict, we must determine whether the trial court “properly found that the jury’s verdict was not supported by a legally sufficient evidentiary basis.” Id. at 36(¶ 25). Furthermore, we must consider the evidence in the light most favorable to the non-movant, giving him the benefit of all favorable inferences that may be reasonably drawn from the evidence. Id. at 32(1110) (citing Steele v. Inn of Vicksburg, Inc., 697 So.2d 373, 376 (Miss.1997)). If, after viewing the evidence in this manner, we conclude that reasonable men could only have found in favor of the movant, we must reverse and render. Id. Conversely, if we find substantial evidence to support the verdict, 1.e., “evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions,” then we must affirm. Id.

¶ 13. H & E asserts that, pursuant to Sumitomo Bank of California v. Product Promotions, Inc., 717 F.2d 215, 218 (5th Cir.1983), the trial court erred in excluding evidence previously admitted during trial when it considered whether to grant Floyd’s motion for judgment notwithstanding the verdict. The court in Sumitomo held that a trial judge “erred in retroactively striking the summary exhibits and then gauging the jury’s performance on the Active basis that the summary evidence was not before it.” Id. In making this holding, the Sumitomo court cited Midcontinent Broadcasting Co. v. North Cent. Airlines, Inc., 471 F.2d 357, 358 (8th Cir.1973) (finding that it was error for a trial court to grant judgment as a matter of law only after excluding the plaintiffs expert testimony) for the proposition that “[i]n ruling on the sufficiency of evidence the trial court must take the record as presented to the jury and cannot enter judgment on a record altered by the elimination of incompetent evidence.” Id.

¶ 14. We are not persuaded by the court’s reasoning in Sumitomo due to the decision in Weisgram v. Marley Co., 528 U.S. 440, 443, 120 S.Ct. 1011, 145 L.Ed.2d 958 (2000), where the United States Supreme Court addressed whether federal trial and appellate courts had the authority to disregard improperly admitted evidence and enter judgment as a matter of law in favor of the jury verdict loser. The Weis-gram court affirmed the decision of the Court of Appeals for the Eighth Circuit to remove erroneously admitted evidence and enter judgment as a matter of law based on the insufficiency of the remaining properly admitted evidence. Id. at 457, 120 S.Ct. 1011. The Weisgram court noted that Midcontinent, and other cases holding that courts should not disregard incompetent evidence when ruling on a motion for judgment as a matter of law, are decisions “of questionable consistency with Rule 50(a)(1), which states that in ruling on a motion for judgment as a matter of law, the court is to inquire whether there is any ‘legally sufficient evidentiary basis’ for a reasonable jury” to find as it did. Id. at 453, 120 S.Ct. 1011. The court further noted that “[(Inadmissible evidence contributes nothing to a ‘legally sufficient evi-dentiary basis.’ ” Id. at 454, 120 S.Ct. 1011 (citing Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 242, 113 S.Ct. 2578, 125 L.Ed.2d 168 (1993)).

¶ 15. Although Rule 50 of the Mississippi Rules of Evidence is worded differently than the federal rule, both rules require that the court considering a motion for judgment notwithstanding the verdict, or judgment as a matter of law as it is called in federal court, to consider whether there is a legally sufficient evidentiary basis to support the verdict of the jury. Weis- gram, 528 U.S. at 458, 120 S.Ct. 1011; White, 932 So.2d at 36(¶ 25). Because inadmissible evidence cannot contribute to a “legally sufficient evidentiary basis,” we find that the trial court in the case sub judice did not err in removing erroneously admitted evidence when considering whether to grant Floyd’s motion for judgment notwithstanding the verdict. Consequently, this issue is without merit.

II. Whether the trial court should have granted Floyd’s motion for attorney’s fees.

¶ 16. Floyd asserts that the trial court should have granted its motion for attorney’s fees because H & E’s complaint expressly invoked the Mississippi Open Account statute, or Mississippi Code Annotated section 11-53-81 (Rev.2002), which provides in pertinent part that “[i]f that person sued on the open account shall prevail in the suit, he shall be entitled to reasonable attorney’s fees to be set by the judge.” Floyd asserts that it prevailed in the suit when it successfully filed a motion for summary judgment in the pretrial stage regarding H & E’s claim under the open account statute, and prevailed again when the court granted its motion for judgment notwithstanding the verdict. We disagree.

¶ 17. The record indicates that H & E did attempt to sue under the Mississippi Open Account statute for attorney’s fees and, in the alternative, that the open account claim was not well taken, then H & E would pursue its claims under contract. On July 21, 2004, Floyd’s motion to dismiss and/or for summary judgment was granted on H & E’s “claim for attorneys’ fees under the open account statute, Mississippi Code Annotated section 11-53-81.” Floyd prevailed on his motion to dismiss and/or summary judgment to remove the open account claim against him, and the parties continued litigation under the lease-purchase contract claims.

¶ 18. In Hughes Equipment Co. v. Fife, 482 So.2d 1144, 1145 (Miss.1986), the court held that it was error to grant attorney’s fees to the defendants in an open account suit when the case was voluntarily dismissed during the pretrial stage. Hughes Equipment, 482 So.2d at 1145. The trial court granted attorney’s fees to Fife, finding it to be the prevailing party because Hughes Equipment had dismissed its claim against Fife. Id. However, on appeal the court found that Fife could not be the “prevailing party” under 11-53-81 when the claim was dismissed pretrial; therefore, it should not have been awarded attorney’s fees. Id. at 1146. The court adopted the reasoning of the California court in International Industries, Inc. v. Olen, 21 Cal.3d 218, 577 P.2d 1031, 145 Cal.Rptr. 691 (1978), where in pretrial dismissal cases the parties should be left to bear their own attorney’s fees. Hughes Equipment, 482 So.2d at 1147. Furthermore, the federal court has stated that attorney’s fees are not available under section 11-53-81 when the claim is based on contract. C.R. Daniels, Inc. v. Yazoo Mfg. Co., 641 F.Supp. 205, 210 (S.D.Miss.1986). “Daniels is not entitled to attorney’s fees under this section because his claim against Yazoo is based on contract rather than open account.” Id.

¶ 19. Summary judgment was entered in favor of Floyd in a pretrial motion to dismiss and/or summary judgment as to the claim under the open account statute for attorney’s fees. Accordingly, attorney’s fees on an open account claim were no longer available to either party. The parties then proceeded with their claims based on contract. We find that the trial court did not err in refusing to award attorney’s fees to Floyd. This issue is without merit.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF SIMPSON COUNTY IS AFFIRMED ON BOTH DIRECT APPEAL AND ON CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED IN EQUAL PARTS TO THE APPELLANT/CROSS-APPEL-LEE AND THE APPELLEES/CROSS-APPELLANTS.

KING, C.J., LEE AND MYERS, P.JJ., AND IRVING, J., CONCUR. BARNES, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY CHANDLER, GRIFFIS, ROBERTS AND CARLTON, JJ. CHANDLER AND ROBERTS, JJ., CONCUR IN PART AND DISSENT IN PART WITHOUT SEPARATE WRITTEN OPINION.

BARNES, J.,

Concurring in Part, Dissenting in Part:

¶ 21. I concur with the majority’s holding that the trial court committed no error in removing erroneously admitted evidence in support of its decision to grant Floyd’s judgment notwithstanding the verdict (JNOV). However, for reasons that I will discuss briefly, I cannot concur in the majority determination that the trial court correctly refused to award any attorney’s fees to Floyd. Accordingly, as to Issue I, I concur with the majority’s well-reasoned opinion; with respect to Issue II, I respectfully dissent.

¶ 22. As the majority correctly explains, section 11-53-81 (Rev.2002) provides that if a defendant “sued on the open account shall prevail in the suit, he shall be entitled to reasonable attorney’s fees to be set by the judge.” However, the majority reasons that, since Floyd successfully moved for summary judgment on the open account claim prior to trial, he is not entitled to attorney’s fees as the “prevailing party,” as the remaining litigation went forward on the lease-purchase contract claims— claims for which attorney’s fees are not statutorily authorized. To support its holding, the majority relies on Hughes Equip. Co. v. Fife, 482 So.2d 1144 (Miss.1986). There, the Mississippi Supreme Court reversed a trial court’s award of attorney’s fees to a defendant who had been sued on an open account.

¶ 23. The suit in Hughes Equip, had been voluntarily dismissed prior to trial. Accordingly, the Hughes Equip, court concluded that the defendant was not a “prevailing party” within the meaning of the open account statute. In finding that Floyd was similarly not a “prevailing party” in the instant case, the majority mistakenly concludes that Hughes Equip. compels that finding inasmuch as Floyd’s “victory” was achieved at the pretrial stage.

¶ 24. Contrary to the majority’s interpretation of Hughes Equip., the deciding factor in both Hughes Equip, and Int’l Indus., Inc. v. Olen, 21 Cal.3d 218, 145 Cal.Rptr. 691, 577 P.2d 1031 (1978)-the California Supreme Court opinion upon which the Hughes Equip, court relied-was that the suit was voluntarily dismissed prior to trial, not simply that the litigation with respect to the open account claim ended prior to trial. This point is illustrative by the policy considerations underlying the Olen court’s decision: “permitting recovery of attorney fees by defendant in all cases of voluntary dismissal before trial would encourage plaintiffs to maintain pointless litigation in moot cases or against insolvent defendants to avoid liability for those fees.” Hughes Equip., 482 So.2d at 1147 (quoting Olen, 145 Cal.Rptr. 691, 577 P.2d at 1034-35). In the instant case, Floyd prevailed pursuant to summary judgment, which can in no way be construed as a “voluntary dismissal,” and the policy considerations underlying Olen are completely inapplicable to the situation presented to this Court.

¶ 25. Finally, the important consideration in deciding whether a defendant is a “prevailing party” is not necessarily when the favorable outcome was reached, but how that outcome affects the legal relationship between the parties. The United States Supreme Court has held that, at a minimum, there must be a “judicially sanctioned change in the parties’ legal relationship” in order for a party to be permitted an award of attorney’s fees in federal fee-shifting statutes. 3-25 James Wm. Moore et al., Moore’s Federal Practice § 25.81 (3d ed.1997). Generally, the defendant will be the prevailing party if the plaintiff does not qualify as the prevailing party, thereby considered “prevailing” only if the plaintiff receives no relief whatsoever from the litigation. Id. This would obviously include situations where the case was litigated on the merits and ultimately found in favor of the defendant. Id. If the case is disposed of before judgment on the merits, such as with a dismissal, another standard is used. Id. A dismissal with prejudice would be considered an adjudication on the merits that changes the legal relationship between the parties, thereby making the defendant the prevailing party, because this dismissal completely abolishes the claim the plaintiff may have had against the defendant. Id. Alternatively, a dismissal without prejudice does not alter the parties’ legal relationship and thus the defendant is not considered the prevailing party. Id. It follows that a voluntary dismissal does not alter the parties’ legal relationship either, so the defendant could not “prevail” in that instance either, as the Hughes Equip, court articulated.

¶ 26. In our case, both the pre-trial summary judgment and JNOV, according to the standard articulated regarding federal statutes, definitively changed the legal relationship between, the parties, irrespective of when the favorable determination occurred. It matters not whether the open account claim was completely abolished at the summary judgment phase, or continued in whole or in part until the JNOV, because either of these actions caused a material change in the legal relationship of the parties. Moreover, even if the open account claim was completely abolished at summary judgment, as the majority opines, Floyd was still the prevailing party at this point and accordingly would be entitled to attorney’s fees accrued up to this time. Therefore, I would respectfully dissent regarding the majority’s conclusion as to Issue II, and reverse and remand for a determination of the amount of attorney’s fees to be awarded to defendant Floyd.

■ CHANDLER, GRIFFIS, ROBERTS AND CARLTON, JJ., Join this Opinion.

      . On January 26, 2004, the circuit court entered an agreed order amending the pleadings to add Thomas R. Floyd, Mason Contractors, Inc. as a defendant and counter-plaintiff.

      . In both the Mississippi and Federal Rules of Civil Procedure, Rule 50(b) provides that the movant has no more than ten days after entry of judgment or, if a verdict was not returned on the issue, no more than ten days after the jury was discharged, in order to file a motion for judgment notwithstanding the verdict, i.e., judgment as a matter of law. Rule 50(b) of the Mississippi Rules of Civil Procedure is distinguishable from the federal rule in that a motion for directed verdict is not a prerequisite to filing a motion for judgment notwithstanding the verdict. Miss. R. Civ. P. 50(b) cmt.

      . The record does not make clear the exact nature of the summary judgment granted to Floyd prior to trial. The majority proceeds under the assumption that the open account claim was completely wiped out by the summary judgment. If this were the case, then, as will be shown, Floyd was nevertheless a prevailing party and would be entitled to attorney's fees accrued up to the point of summary judgment. If some part of the open account claim survived the pretrial summary judgment, then Floyd became the prevailing party when the trial court granted the JNOV, and he would be entitled to all attorney’s fees attributable to the defense of the open account claim.


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Alexis ALEXANDER, Appellant v. Joseph Hugh GREER, Appellee.
    No. 2005-CA-01511-COA.
    Court of Appeals of Mississippi.
    June 26, 2007.

      Austin R. Nimocks, Biloxi, attorney for appellant.
    Margaret P. McArthur, Robert W. Atkinson, Gulfport, attorneys for appellee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Alexis Alexander sued Joseph Greer in circuit court to recover for injuries she sustained when Greer’s vehicle struck her, while she was walking home. The jury verdict found Greer not liable. On appeal, Alexander argues that the trial judge erred in excluding Greer’s post-accident medical treatment and in allowing into evidence Greer’s prior consistent statement made to his insurance company following the accident. We find error and reverse and remand.

FACTS

¶ 2. On December 6, 2002, Greer and Alexander were both traveling home along Second Street from Christmas at the Pass in Pass Christian. Around 8:00 p.m., Alexander, while traveling on foot, was struck by the right side of Greer’s vehicle resulting in serious injuries.

¶ 3. Prior to attending Christmas in the Pass, Alexander had taken a Paxil and a shot of Bailey’s liquor to calm her nerves. Dressed in all black, pants, shirt, and long-sleeved jacket, she rode with her mother to the event. Due to a prior accident in 1996 resulting in a brain injury, she was unable to drive herself. Alexander had some art she was selling on display at Antiques and Interiors where she had rented a booth. During the event, she had at least one glass of wine. When Alexander was ready to leave the event, she called her mother to come pick her up. Due to many of the streets being blocked off, her mother had difficulty meeting Alexander. A short time later, Alexander left Christmas in the Pass and began to walk the two and a half miles home along Second Street.

¶4. Greer, who was eighty-eight years old at the time, had prior eyesight problems resulting from macular degeneration. In 1998, he underwent a lens transplant to correct the problem. Greer attended Christmas in the Pass with his daughter. They had dinner during which Greer consumed a can of beer. Following dinner, Greer and his daughter went to the yacht club to watch the boat parade. After it ended, Greer dropped his daughter off at her home and proceeded to drive to his home. He traveled in his lane of traffic, traveling at twenty-five miles per hour in a thirty mile per hour zone. He testified that he had his high beam headlights on until he met an oncoming vehicle and switched to his low beam headlights. A few seconds after passing the oncoming vehicle he heard something strike the right side of his vehicle.

¶ 5. When Alexander was struck by Greer’s vehicle, she sustained a compound fracture to her lower left leg and a serious and disabling brain injury. As a result of the brain injury, Alexander was unable to remember anything about the night of the accident and became permanently disabled. Greer testified that he never saw Alexander, and only realized he had hit something from the sound of his vehicle striking something. It was only after exiting his vehicle and finding Alexander lying off to the side of the road that he realized he had hit a person.

¶ 6. Immediately after seeing Alexander lying on the ground, Greer went for help. A short time later police and paramedics arrived and began to administer care to Alexander. She was then transported to the hospital where, in the course of administering care, they found that Alexander had a .074 blood alcohol content. Greer’s blood alcohol content was never tested.

¶7. Following the accident, Alexander filed a suit against Greer for negligence. Prior to trial, Greer made a motion in limine to exclude evidence that thirty-eight days after the accident he went to his eye doctor and stated that he was having trouble focusing. The judge granted the motion on the grounds that it was a subsequent remedial measure.

¶8. During the last day of a four day trial, Greer testified on direct that he did not use his high beams at the time of impact, because oncoming traffic required him to switch to his low beams. Following a strong cross-examination on the topic, Greer’s counsel sought to enter into evidence a prior consistent statement made by Greer to his insurance company eleven days after the accident. The statement consisted of the same events preceding the accident that Greer testified to on direct, that there was oncoming traffic. The judge allowed the evidence to be entered over the objection of Alexander.

¶ 9. Following the conclusion of testimony, the jury entered a verdict finding Greer not liable for the accident. Alexander made a motion for a new trial which was subsequently denied. Aggrieved, Alexander appeals, and the appeal was deflected to this Court.

STANDARD OF REVIEW

¶ 10. Each allegation of error involves the admission or exclusion of evidence. The standard of review for the admission or suppression of evidence is abuse of discretion. Mississippi Transp. Comm’n v. McLemore, 863 So.2d 31, 34(¶ 4) (Miss.2003) (citing Haggerty v. Foster, 838 So.2d 948, 958(¶ 25) (Miss.2002)). Further, the decision of the trial court must stand “unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.” McLemore, 863 So.2d at 34(¶4) (quoting Puckett v. State, 737 So.2d 322, 342(¶ 57) (Miss.1999)).

ANALYSIS

¶ 11. Alexander alleges that the trial court committed two errors in the admission or exclusion of evidence. She first alleges that the trial court erred in excluding evidence from Greer’s eye doctor visit thirty-eight days after the accident. Secondly, Alexander argues that the trial court erred in allowing into evidence a prior consistent statement of Greer made to his insurance company shortly after the accident.

¶ 12. Before we address the merits of these claims, we turn to Greer’s argument that any allegation of error with regards to the post-accident medical visit by Greer is waived. Greer states that since Alexander in her notice of appeal only mentioned the judgment that overruled her motion for a new trial, only those issues alleged in that motion may be addressed on appeal. For support, Greer cites Eldridge v. Sparkman, 813 So.2d 753 (Miss.Ct.App.2001). Eldridge was not a full trial on the merits. In fact, it involved an interlocutory appeal on the appointment of a conservator, while other motions were still pending. Id. at 755(¶ 3). This case is much more akin to Kiddy v. Lipscomb, 628 So.2d 1855 (Miss.1993). The supreme court noted that “it is clearly the better practice to include all potential assignments of error in a motion for new trial. However, this approach is not always practical.” Id. at 1359. In light of that rationale, the supreme court went on to hold that “when the assignment of error is based on an issue which has been decided by the trial court and duly recorded in the court reporter’s transcript, such as the admission or omission of evidence, we may consider it regardless of whether it was raised in the motion for new trial.” Id.

¶ 13. Therefore, we find both of Alexander’s errors preserved for appeal and now address each one in turn.

I. The circuit judge erred in excluding medical evidence of Greer’s serious eyesight problems.

¶ 14. Thirty-eight days after the accident, Greer visited Dr. Thurber, an eye doctor, and stated that he was “having trouble focusing.” Greer filed a motion in limine on May 21, 2005 and sought to exclude any reference to the post-accident doctor visit. As a basis for exclusion, Greer stated that the doctor visit was a subsequent remedial measure and should be excluded pursuant to Rule 407 of the Mississippi Rules of Evidence. Following an off-the-record telephonic conference, the judge granted the motion. During motions after the plaintiffs case-in-chief, Alexander’s counsel once again raised the post-accident doctor visit. He argued that a medical visit does not fall within M.R.E. 407 and in the alternative that if the opportunity arose that he should be able to use the visit and statement made to the doctor for impeachment. The judge once again overruled the motion and excluded any evidence from the post-accident doctor visit for any purpose.

¶ 15. Alexander alleged error on two parts of the ruling of the trial judge. First, she alleged that the trial court erred in holding that the post-accident doctor visit was a subsequent remedial measure. The second issue that she raised was that if the post-accident doctor visit was a subsequent remedial measure, then it should be allowed in for impeachment. We first address whether this subsequent medical visit falls within the context of M.R.E. 407.

¶ 16. After a thorough review of the prior case law, it appears to this Court that this particular issue has not been addressed before. Alexander in her brief cited a litany of cases that dealt with subsequent remedial measures for the proposition that “none of which even hint that the application” of M.R.E. 407 should apply to post accident medical visits like the one at hand. We find that the opposite inference holds true as well, i.e., that none of the cases specifically exclude post-accident medical visits from falling within M.R.E. 407. Therefore, we look to the case law on M.R.E. 407, as well as the rule itself.

¶ 17. M.R.E. 407 states:

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. The rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

It is important to note that the rule itself states that the evidence excluded are termed “measures.” Measure is defined as “an action taken as a means to an end.” The American Heritage College Dictionary 842 (3rd ed.1993). This does not limit the application of this rule merely to “place, method, or appliance” as stated by Greer. Standard Oil Co. v. Franks, 167 Miss. 282, 287, 149 So. 798, 799 (1933). It allows the exclusion of any action taken which would have made the event less likely to occur. The comments provide insight into the reason behind this rule. The rule encourages corrective measures to be taken, or at the very least prevents the discouragement of making such correction by preventing their adverse use in litigation. M.R.E. 407 cmt.

¶ 18. An example of why the principle of the exclusion of subsequent remedial measures exists is contained in Sawyer v. Illinois Cent. R.R., 606 So.2d 1069 (Miss.1992). The supreme court stated that the main reason parties sought to introduce subsequent remedial measures was to show some after-the-fact “guilty knowledge” that a dangerous condition existed. Id. at 1075. By excluding such measures, it will allow the defendant to correct any dangerous condition without creating such a “guilty knowledge” inference. Id.

¶ 19. The same principle applies to the particular facts in the case before us. Following the accident, where Greer failed to see a pedestrian for whatever reason, he visited an eye doctor to have his vision examined. Applying the rule to these facts, Greer took a measure (having his vision examined) after the accident or event, and if he would have visited the doctor earlier any problems with his vision might have been corrected. Failure to exclude such evidence could discourage Greer from seeking help with any vision problems, allowing the potential for more accidents to occur subject to his impaired vision, that is if there is any impairment of his vision. These facts, while they involved a post-accident medical visit, follow the definition and principle found in Rule 407.

¶ 20. Alexander argues that the Court should take a much more conservative view of the rule as found in Standard Oil and not expand its application. In response, it should be pointed at that the final comment to Rule 407 states that “Rule 407 is more liberal than was the similar Mississippi practice.” M.R.E. 407 cmt. After reviewing the language used by the rule and comparing it to prior case law, it appears that the rule for exclusion has a more liberal application. In addition, the exceptions mentioned in the Rule are more liberal as well. Finding that Greer’s post-accident medical visit was a subsequent remedial measure, we now look to the exceptions to Rule 407.

¶ 21. One such listed exception is for impeachment. The trial court denied Alexander’s request to use the evidence merely for impeachment if the circumstance arose. During his testimony, Greer stated that he did not have any problems with his vision. Without the trial court’s prior ruling that the post-accident medical visit could not be entered into evidence, Alexander could have used Greer’s statement to the eye doctor that he was having trouble focusing to impeach Greer’s assertion that he had no eye problems.

¶ 22. While the post-accident medical visit could not come in to prove that Greer was negligent, the trial judge should have, at the very least, allowed Alexander to use it for the sole purpose of impeachment. When the evidence came in before the jury, a limiting instruction could have been issued requiring the jury to only use the evidence for impeachment and not for negligent or culpable conduct.

¶ 23. Having found that the statement should have been admitted under an exception to M.R.E. 407, the evidence would still have to pass the general filter of M.R.E. 403. It states that, “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” M.R.E. 403. Here, Greer was the only individual who was able to recall what happened at the time of the accident. His credibility as to what he tells the jury is paramount in such a case. In this case the potential probative value of the statement to the doctor is not outweighed by any unfair prejudice. Therefore, we find that the trial judge abused his discretion for failing to allow evidence from the post-accident medical visit to be used solely for impeachment purposes of Greer.

II. The circuit judge erred in allowing into evidence the prior consistent statement of Greer.

¶24. Alexander’s second allegation of error involves the admission of a prior consistent statement Greer made to his insurance company shortly after the wreck. In his statement to the insurance company, Greer told the insurance company that he dimmed his headlights due to oncoming traffic, and shortly after the car passed Greer heard Alexander hit the passenger side of his car. The statement was offered on redirect of Greer to rebut the allegation made by Alexander’s counsel during cross-examination that Greer fabricated the notion that there was oncoming traffic.

¶ 25. Greer argues that the statement was properly allowed by the trial judge in accordance with Rule 801(d)(1)(B) of the Mississippi Rules of Evidence. It states in part:

a statement is not hearsay ... when the declarant testified at trial or hearing and is subject to cross examination concerning the statement, and the statement is ... consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.

M.R.E. 801(d)(1)(B). Clearly, under this rule, once Alexander challenged Greer’s recounting of oncoming traffic as a fabrication, Greer’s statement to his insurance company would be admissible. However, the supreme court attached a standard of reliability to this particular rule in Owens v. State, 666 So.2d 814 (Miss.1995). It held that “[a] prior consistent statement introduced to rebut a charge of recent fabrication or improper motive was admissible if the statement had been made before the alleged fabrication, influence, or motive came into being, but was inadmissible if made afterwards.” Id. at 816 (quoting Tome v. United States, 513 U.S. 150, 156, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995)). Therefore, we turn to look at the circumstances surrounding the statement Greer made to his insurance company.

¶ 26. Greer made the statement eleven days after the accident happened when he was reporting to his insurance company of a potential liability against him. While suit had not been filed, the potential for a large amount of liability had arisen. Greer’s vehicle had struck a pedestrian who sustained severe injuries as a result of the accident. While Greer may have been truthful when speaking with his insurance company, the motive to fabricate and potentially avoid the looming liability existed. Therefore, Greer’s prior consistent statement to his insurance company would not be admissible under the Owens standard for Rule 801(d)(1)(B) of the Mississippi Rules of Evidence.

¶ 27. Further, when Alexander requested through interrogatories to produce any statements made during discovery, Greer objected on the grounds of work product. While we do not necessarily agree with Greer that the interview with the insurance company falls under the privilege of work product, both parties have conceded that it should have been considered work product. Therefore, we are precluded from that analysis. In light of the concession, we look to determine what effect such a designation has on the prior statement. In her brief, Alexander points out a very apt definition of work product: as one prepared “in anticipation of litigation.” Haynes v. Anderson, 597 So.2d 615, 618 (Miss.1992). Clearly, since the statement was given in anticipation of litigation, the motive to fabricate had arisen. Once again, it does not matter that the motive to fabricate actually caused the statement, it is enough merely that the motive exists.

¶ 28. Under these specific circumstances, this statement should not have been excepted from the hearsay rule due to the fact that a motive for fabrication existed at the time the prior consistent statement was made. Owens, 666 So.2d at 816. Without a separate permissible exception to the hearsay rule, the statement should have been excluded. Therefore, the trial judge abused his discretion in allowing this statement to be placed into evidence. Finding that the statement was inadmissible, we need not address any potential discovery violations.

CONCLUSION

¶ 29. The judgment of the trial court is reversed and remanded for a new trial.

¶ 30. THE JUDGMENT OF THE CIRCUIT COURT FOR THE FIRST JUDICIAL DISTRICT OF HARRISON COUNTY IS REVERSED AND REMANDED FOR A NEW TRIAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

      . Christmas in the Pass was a large community event where a number of streets are blocked off and many shops opened their doors to the patrons, often serving wine or soft drinks and hors d’oeuvres. There was a Christmas parade in the evening along with Christmas lights in the city park. There was also a boat parade, viewable from the yacht club.


author: BARNES, J.,

text:
    Lewis C. AUSBON, Jr., Appellant v. STATE of Mississippi, appellee.
    No. 2006-CP-00760-COA.
    Court of Appeals of Mississippi.
    June 26, 2007.

      Lewis C. Ausbon, Jr., appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Lewis Ausbon, Jr. appeals to this Court from the dismissal of his motion for post-conviction relief by the Circuit Court of Lee County.

¶ 2. In July 2003, Ausbon pled guilty to burglary of a dwelling and was sentenced to a twenty year suspended sentence. The sentence was to run concurrent with the sentence Ausbon was already serving in Pontotoc County.

¶3. Ausbon was convicted of another burglary in Chickasaw County in February 2005, and his suspended sentence was revoked. Upon revocation, Ausbon was ordered to serve twelve years in the custody of the Mississippi Department of Corrections with the remaining eight years of his twenty-year sentence suspended, conditioned on his adherence to five years of post-release supervision.

¶ 4. On appeal, Ausbon raises the following issues:

1. The trial court imposed an illegal suspended sentence when that court suspended the imposition of twenty (20) year sentence pursuant to Mississippi Code Annotated section 47-7-33 (Rev.2004) in cause no. CR00-150GL.
2. The trial court erred when that court sentenced appellant on the charge of burglary of a dwelling when the language of the indictment clearly did reflect the charge of burglary of a non-dwelling, i.e., storage house, which only carried a maximum sentence of ten (10) years.
3. The trial court did exceed the twenty (20) year sentence during the revocation hearing when that court imposed a sentence of twelve (12) years, eight years suspended and five (5) years post-release supervised.
4. Appellant’s plea of guilty was involuntarily given when trial counsel did misrepresent the guilty plea in that trial counsel failed to provide the appellant with adequate information prior to appellant entering his plea of guilty.
5. Appellant’s plea of guilty was involuntarily given when trial counsel set forth an improper inducement when the trial counsel stated that appellant would receive no time if he would plead guilty and would only have to complete the remaining four (4) year post-release supervision imposed in Pontotoc County in cause no. CR99-131.

The Court finds no merit to any of the appellant’s claims and affirms the decision of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 5. On July 9, 2003, Ausbon pled guilty to burglary of a dwelling house in the Circuit Court of Lee County in cause number CR00-150GL. After questioning Aus-bon on his understanding of the charges against him and advising him of his constitutional rights being waived by pleading guilty, the trial court found that his guilty plea was “voluntarily and understandingly entered.”

¶ 6. Ausbon was sentenced to a twenty year suspended sentence to run concurrent with the remainder of a Pontotoc County sentence — four years of post-release supervision — that he was serving at that time in cause number CR99-131. Ausbon was also fined $1,000 and ordered to pay restitution and court costs.

¶ 7. In February 2005, Ausbon was arrested in Chickasaw County for burglary of a dwelling. Based on this charge, a petition to revoke his suspended sentence was filed. A hearing was held, and the trial court found that Ausbon had violated the terms of his release. Ausbon’s suspended sentence in cause number CR00-150GL was revoked, and he was sentenced to serve twelve years in the custody of the Mississippi Department of Corrections, with eight years remaining suspended and five years’ post-release supervision.

¶ 8. On February 5, 2006, Ausbon filed a motion for post-conviction relief, seeking “clarification of his sentence.” The motion was denied, and Ausbon appealed to this Court.

STANDARD OF REVIEW

¶ 9. In reviewing a circuit court’s decision to deny a motion for post-conviction collateral relief, we will not disturb the circuit court’s factual findings unless they are clearly erroneous. Boyd v. State, 926 So.2d 233, 235(¶ 2) (Miss.Ct.App.2005). However, we review questions of law de novo. Id.

DISCUSSION

¶ 10. In his “Petition to Clarify Sentence” Ausbon argued that the court should “clarify my sentence according to the plea I made with my attorney.” The petition made no other claims for relief, and there was no additional evidence by exhibits or affidavits to support Ausbon’s argument.

¶ 11. In denying his motion, the trial court noted that it could not reduce or modify a lawfully imposed sentence after Ausbon has already begun to serve that sentence. The court also found that Aus-bon had violated the conditions of his post-release supervision and was sentenced accordingly. The court found that the sentence was “unambiguous and lawfully imposed.”

¶ 12. On appeal, this Court is limited to those issues which have been raised and presented to the trial court for review.

WAS AUSBON’S SENTENCE PROPERLY IMPOSED?

¶ 13. In his argument to this Court, which is not the same as the argument to the trial court, Ausbon suggests that the circuit court did not have the authority to impose a suspended sentence when he was a convicted felon. The trial court suspended Ausbon’s twenty year sentence at the time he pled guilty, and eight years of the sentence remained suspended after his revocation hearing.

¶ 14. This question has been previously addressed by both this Court and the Mississippi Supreme Court. As noted by the State, in Sweat v. State, 912 So.2d 458, 461(¶ 9) (Miss.2005), there is no prejudice when an inmate benefits from a sentence which is more lenient than that to which he is entitled:

The Court of Appeals has recently held that there is no prejudice suffered when a defendant receives an illegally lenient sentence. Edwards v. State, 839 So.2d 578, 580-81 (Miss.Ct.App.2003). Further, when the error benefits the. defendant in the form of a more lenient sentence, it is harmless error. Chancellor v. State, 809 So.2d 700, 702 (Miss.Ct.App.2001). The law which relieves defendants from the burden of an illegal sentence applies to situations where the defendant is forced to suffer a greater sentence rather than the luxury of a lesser sentence. Id.

¶ 15. If Ausbon received a lesser sentence than that to which he would have been entitled under the law, then he has suffered no prejudice and has been given this “luxury of a lesser sentence.” There is no reversible error.

¶ 16. Ausbon also claims that the twenty year sentence was exceeded by the court’s imposing, upon revocation, twelve years, eight years suspended, and five years’ post-release supervision. Apparently, Ausbon calculates this to be a twenty-five year sentence; however, the five years’ post-release supervision does not count as part of the sentence. See Brown v. State, 872 So.2d 96, 99 (¶¶ 10-11) (Miss.Ct.App.2004). Therefore, the twelve years to serve plus eight years suspended totals twenty years and does not exceed the original sentence.

AUSBON’S OTHER ASSIGNMENTS OF ERROR

¶ 17. The other issues raised by Ausbon were not raised with the trial court. Issues not raised with the trial court in a post-conviction relief motion cannot be raised for the first time on appeal to this Court. Gardner v. State, 531 So.2d 805, 808-09 (Miss.1988); Colburn v. State, 431 So.2d 1111, 1114 (Miss.1983). These issues are procedurally barred.

¶ 18. Procedural bar notwithstanding, Ausbon argues that the indictment was flawed in that it did not reflect burglary of an occupied dwelling. The indictment was not made part of the record before this Court, but the portion of the indictment quoted in Ausbon’s brief clearly indicates that if this issue had been properly raised before the trial court or this Court, that the issue would have been resolved against Ausbon. Ausbon quotes the indictment as stating that the crime occurred at a “certain dwelling owned and occupied.... ” The transcript of the guilty plea hearing also shows that Ausbon’s argument is without merit. The trial court judge specifically stated to Ausbon that he was pleading guilty to the felony charge of burglary of a dwelling, and Ausbon stated that he, in fact, was guilty of the crime. At the guilty plea hearing, the trial judge found a factual basis for the guilty plea and that Ausbon “knowingly, understandingly, freely and voluntarily” entered the guilty plea. We agree.

¶ 19. Ausbon also claims that his guilty plea was not voluntary because of improper inducement where his attorney promised him that he “would receive no time if he would plead guilty and would only have to complete the remaining four (4) year post-release supervision imposed in Pontotoc County in cause no. CR99-131.” This is exactly the sentence that Ausbon originally received. His sentence was suspended, and he would only have to serve the post-release supervision from his Pontotoc County sentence. According to the transcript of the guilty plea hearing, this was the recommendation of the prosecution, and Ausbon agreed that this was the recommendation that he understood that would be made. That Ausbon’s suspended sentence was subsequently revoked due to his misconduct does not invalidate the plea.

¶ 20. Lastly, any claim that Ausbon’s trial counsel was deficient is not supported by the record. Ausbon acknowledged during the plea colloquy his satisfaction with counsel who had worked to secure a recommendation for a suspended sentence. It was not through any deficient performance of counsel but the misconduct on the part of Ausbon himself which resulted in his incarceration.

CONCLUSION

¶ 21. Ausbon’s sentence was unambiguous and did not need clarification. Although Ausbon may have benefitted from a better sentence than he deserved, there is no basis for reversal. The remaining issues raised by Ausbon on appeal were not presented to the trial court and thus are procedurally barred. These issues are also without merit, and this Court finds that the circuit court’s judgment should be affirmed.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO LEE COUNTY.

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


author: CHANDLER, J.,

text:
    Audrey D. ROBERTSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-01477-COA.
    Court of Appeals of Mississippi.
    June 26, 2007.
    Audrey D. Robertson, appellant, pro se.
    Office of the Attorney General, by Deirdre McCrory, attorney for appellee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Audrey D. Robertson appeals the denial of her post-conviction relief (PCR) motion. She pled guilty to one count of burglary of a dwelling pursuant to Mississippi Code Annotated section 97-17-23 (Rev.2006), and was sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections, with five years of post-release supervision, a fine of $1,000, and restitution of $189.67. Aggrieved, Robertson claims she was convicted pursuant to an improper indictment and an involuntary guilty plea.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Robertson was indicted in July 2005 for one count of burglary of a dwelling, one count of credit card fraud and two counts of uttering forgery. The charges stemmed from Robertson breaking into an elderly woman’s home in Oktibbeha County, Mississippi and stealing the woman’s personal belongings. Robertson attempted to purchase gas and other items using the woman’s credit cards and also wrote forged checks on the woman’s account. Pursuant to a plea bargain, Robertson pled guilty to burglary of a dwelling. The other charges were retired to the file.

STANDARD OF REVIEW

¶ 4. This Court will not disturb the trial court’s findings on post-conviction relief unless they are found to be clearly erroneous. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999). However, where questions of law are raised, our review is de novo. Id.

LAW AND ANALYSIS

¶ 5. Robertson claims that her guilty plea was involuntary because she was not aware of being indicted for burglary of a dwelling. She asserts that she only received an indictment for credit card fraud and forgery and, therefore, she pled guilty to a crime for which she was not indicted. However, in her brief on appeal, Robertson admits to the crime, but complains that she was “tricked” into entering the house and later forging the checks.

¶ 6. A plea is considered voluntary and intelligent if “the defendant is advised about the nature of the charge against him and the consequences of the entry of the plea.” Ward v. State, 879 So.2d 452, 455(¶ 9) (Miss.Ct.App.2003) (citing Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992)). The circuit court found Robertson’s claim to be meritless. In his order, the trial judge noted that all of the charges, including burglary, were contained within the same indictment and that all of the offenses were part of a related series of events. The record supports this conclusion. Further, at the plea qualification hearing, Robertson admitted to the burglary, and stated that she understood the nature of the charges against her and that her plea was given voluntarily. Therefore, we find that the record supports the lower court’s conclusion and affirm its dismissal of Robertson’s PCR motion.

¶ 7. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY DISMISSING APPELLANT’S MOTION FOR POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIB-BEHA COUNTY.

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


text:
    Shawn Louis KNIGHT, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-00110-COA.
    Court of Appeals of Mississippi.
    June 26, 2007.

      Shawn Louis Knight, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   MODIFIED OPINION

GRIFFIS, J.,

for the Court.

¶ 1. The motion for modification is denied as requested; however, the original opinion is being modified with this opinion substituted in lieu thereof.

¶ 2. Shawn Louis Knight pled guilty to gratification of lust in the Circuit Court of Rankin County. He was sentenced to serve a total of fifteen years in the custody of the Mississippi Department of Corrections, with five years suspended, followed by five years supervised probation. He was fined $1,000, which was suspended, and was ordered to pay court costs. Knight then filed a motion for post-conviction relief, which was denied on its merits. On appeal, he raises the following issues: (1) the indictment was insufficient to charge a crime, (2) the grand jury could not find penetration and corpus delicti, (3) his plea was involuntary and unknowing, and (4) his counsel was ineffective. After the appeal was filed, the trial court moved this Court to consider Knight’s petition a successive writ. We find no error and affirm.

FACTS

¶ 3. Knight was indicted on two counts of sexual battery of a minor. The two counts were nearly identical in that they charged sexual battery against a minor, identified as M.W. However, Count I was for one act of sexual battery in September 2001, and Count II was for an act on October 27, 2001. In exchange for a guilty plea to gratification of lust for the incident described in Count II, the prosecution agreed not to prosecute Count I. Knight pled guilty on December 19, 2002.

¶ 4. On September 15, 2004, Knight filed his petition for post-conviction relief. The trial court denied the motion on its merits. Knight appealed to this Court.

¶ 5. This Court ordered the lower court to supplement the record with the plea hearing transcript. The lower court complied; however, it was accompanied by an ex parte “Supplemental Findings of the Trial Court” (“Supplemental Findings”). The Supplemental Findings stated that the trial court should have considered the petition a successive writ and asked this Court to “correct this error” and to sanction Knight. This Court supplied the parties with a copy of the supplemental findings and ordered supplemental briefing.

STANDARD OF REVIEW

¶ 6. A trial court’s denial of post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002). However, when issues of law are raised the proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999). Whether or not an indictment is defective is a question of law. Peterson v. State, 671 So.2d 647, 652 (Miss.1996).

ANALYSIS

I. Is the successive writ bar properly before this Court?

¶ 7. First, we must consider whether the Supplemental Findings are properly before this Court. Knight argues that the lower court has violated proper procedure and “waived” its holding by not considering it in the first place. He also argues the State waived this argument when it was not raised below. In the alternative, Knight argues that he has raised fundamental, constitutional rights which survive a successive writ bar. The State’s argument is that it finds “no legal impediment to Judge Richardson’s supplemental finding.”

¶ 8. The Supplemental Findings read, in part:

The Trial Court after receiving the Court of Appeals Order for Supplementation, researched all of the Movant’s court files and pleadings. The Trial Court has determined that the Movant filed a pro se Motion to Vacate and Set Aside Sentence June 9, 2003 ... which the Trial Court elected to treat as a Motion for Post Conviction Relief based upon the relief requested, urging essentially the same grounds for relief as he has alleged in the Motion ... which is the subject of the current appeal. At the time the Trial Court addressed and considered the current Motion ... the Trial Court ... did not realize and was unaware that the Movant had previously filed a Motion for Post Conviction Relief which had been denied. No appeal was taken from this order and the time for taking such appeal has expired.... The Trial Court urges the Court of Appeals to correct the Trial Court’s error or oversight and dismiss the [appeal] as a second or successive motion. Further, the Trial Court urges the Court of Appeals to impose sufficient sanctions on the Movant....

¶9. A prisoner may file a motion for post-conviction collateral relief with the circuit clerk and deliver a copy of the motion to the State. Miss.Code Ann. § 99-39-9(5) (Rev.2000). An answer is not required unless the trial court orders the State to file one. Id. The motion is to be “examined promptly by the judge to whom it is assigned.” Miss.Code Ann. § 99-39-11(1) (Rev.2000). If the judge’s examination reveals that the prisoner is not entitled to relief, the judge may dismiss the motion. Id. This is what occurred with Knight’s motion. The judge examined the motion and determined that Knight was not entitled to relief. As a result, the trial judge dismissed the motion. Knight appealed the judgment.

¶ 10. Normally, it is the duty and responsibility of the State to present arguments that refute Knight’s motion for post-conviction relief. The State did not raise this issue below, nor did it raise it here in its brief. Having failed to do so, we would typically decline to reach the State’s argument that Knight’s petition is a successive writ. Herrington v. State, 690 So.2d 1132, 1137 (Miss.1997). However, we recognize that the State did not have an opportunity to respond and raise this defense, because the trial judge summarily dismissed Knight’s motion without requiring an answer by the State.

¶ 11. We next consider whether the trial judge had the authority to make a supplemental finding after we ordered the trial court to supplement the record with the plea hearing transcript. The general rule is that “where a case has been removed to an appellate court by appeal, the lower tribunal is divested of any jurisdiction to subsequently modify its order or entertain a petition for rehearing.” See Banana v. State, 638 So.2d 1329, 1331 (Miss.1994) (holding trial judge could not sua sponte reconsider denial of post-conviction relief after appeal was filed). This rule has been ameliorated in part by the rules of appellate and civil procedure. Gardner v. State, 547 So.2d 806, 807 (Miss. 1989); Ward v. Foster, 517 So.2d 513, 516-17 (Miss.1987).

¶ 12. Rule 59(e) of the Mississippi Rules of Civil Procedure provides that a motion to alter or amend the judgment shall be filed no later than ten days after entry of judgment. We have held that if a judge seeks to do this sua sponte, he is also bound by the ten day period, as well as the requirements of notice and hearing set out in Rule 59(d). Ford v. Ford, 795 So.2d 600, 605(¶ 17) (Miss.Ct.App.2001). Failure to do so renders the amended judgment void. Id. The final judgment in this case was rendered December 22, 2004. The supplementation was not filed until November 16, 2005. Further, neither Knight nor the State had notice or a hearing before the judgment was altered. Therefore, Rule 59 does not provide the means by which we may consider the motion.

¶ 13. Rule 60(a) provides that clerical mistakes in judgments and the record may be taken up at any time “until the time the record is transmitted by the clerk of the trial court to the appellate court and the action remains pending therein. Thereafter, such mistakes may be so corrected only with leave of the appellate court.” We do not deal here with clerical errors, so Rule 60(a) does not authorize the supplementation.

¶ 14. After the case is appealed, Rule 60(b) grants the lower court concurrent jurisdiction limited to granting relief from a judgment pursuant to a timely filed motion. Griffin v. Armana, 679 So.2d 1049, 1050 (Miss.1996). Rule 60(b) does not apply here, because the court’s supplemental findings and holdings were not to grant relief from judgment.

¶ 15. Likewise, we are unable to find any authority in the Mississippi Rules of Appellate Procedure which allows a trial court to reopen a judgment and supplement its findings and holdings under these circumstances or allow us to consider same. Therefore, the general rule applies. The trial court was without jurisdiction to reopen and amend the judgment after it was appealed.

¶ 16. The final judgment, which Knight appeals, denied his petition on its merits. We now consider the merits of Knight’s appeal.

II. Was Knight’s guilty plea knowing and voluntary?

¶ 17. Knight claims that he never waived his rights in a face-to-face exchange with the trial court. He further claims the trial court never discussed the elements of sexual battery. The trial court held this issue was meritless, because Knight asserted under oath, in his petition to enter a plea and in open court, that he was pleading guilty freely and voluntarily.

A. Did Knight know which rights he was waiving?

¶ 18. A plea of guilty is binding only if it is entered voluntarily and intelligently. Myers v. State, 583 So.2d 174, 177 (Miss.1991). A plea is voluntary and intelligent when the defendant is informed of the charges against him and the consequences of his plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). A defendant must be told that a guilty plea involves a waiver of the right to a trial by jury, the right to confront adverse witnesses, and the right to protection against self incrimination. URCCC 8.04.

It is not enough to ask an accused whether counsel has explained his constitutional rights. Nor is a standardized petition ... sufficient standing alone. The court must go further and determine in a face-to-face exchange in open court that the accused knows and understands the rights to which he is entitled.

Nelson v. State, 626 So.2d 121, 126 (Miss.1993). However, “failure of a trial court to advise the defendant of any ... constitutional rights which are waived by a guilty plea, will not render a guilty plea to be involuntary if such information has been supplied from another source, such as his attorney.” Courtney v. State, 704 So.2d 1352, 1359(¶ 29) (Miss.Ct.App.1997). “A showing that the plea was voluntarily and intelligently made must appear in the record.” URCCC 8.04.

¶ 19. For example, in Nelson, the trial judge did not inform Nelson of his right to compulsory process. Nelson, 626 So.2d at 126. Although it was discussed in the plea petition, the petition did not specify that process could also be used for out-of-state witnesses. Id. The case was remanded for an evidentiary hearing to determine if Nelson was misinformed about this right by his attorney. Id. at 127.

¶20. In Courtney, the judge did not inform Courtney of his rights to trial, to confront and cross-examine, and to refrain from self-incrimination. Courtney, 704 So.2d at 1359(¶ 28). The record indicated that Courtney was advised of these rights through other sources, including his attorney. Id. at 1359(¶32). However, the Court vacated the guilty plea, because neither the judge nor anyone else informed Courtney of the minimum mandatory sentence he was to serve. Id. at 1360(¶ 34).

¶ 21. In State v. Pittman, 671 So.2d 62, 64 (Miss.1996), the trial judge did not explain the required constitutional rights to the defendant. However, the plea petition contained all the required information, and the judge asked if defendant understood the rights he was waiving in the petition. Id. The court ruled:

Where, as here, it is clear from the record that the defendant was fully advised of [his constitutional rights set forth in Rule 8.04] via a signed petition, and the judge discussed with the defendant his understanding of the petition, this Court will not allow a guilty plea to be set aside for noncompliance with [Rule 8.04].

Id.

¶ 22. On December 19, 2002, pri- or to Knight’s plea hearing, he and seven other defendants viewed a “Guilty Plea Video.” In the video, the trial court explained the guilty plea process. Included in this explanation, was the following:

You are giving up the following rights when you plead guilty:
(1) The right to a speedy and public trial by jury.
(2) The right to see, hear, and face in open court the witnesses who are called to testify against you and the right to cross-examine those witnesses.
(3) The right to use the power and process of the Court to compel the production of evidence in your favor, including the attendance of witnesses.
(4) The right to testify in your own defense if you choose to do so. This decision must be made by you alone and not any other person, including your attorney. And upon your request, the Court will instruct the jury they are to consider your testimony as they would any other witness and give it whatever weight and credibility they think it deserves.
(5) The right to invoke the Fifth Amendment of the Constitution of the United States and remain silent without any adverse inference drawn from your not testifying. And upon your request, the Court will instruct the jury that, during their deliberations as to your guilt or innocence, they cannot hold the fact that you did not testify against you.
(6) The right to challenge the composition of the grand jury that indicted you and the petit jury that will try you.
(7) The right to be presumed innocent and have the Court instruct the jury that the State must prove your guilt and all the elements of the crime with which you are charged beyond a reasonable doubt.
(8) The right to a unanimous jury verdict. That means all twelve jurors must vote guilty before you can be found guilty.
(9) If you went to trial and you were convicted by the jury, you would have the absolute right to appeal that conviction to the Supreme Court of the State of Mississippi, if the proper issues are preserved for appeal. If you are indigent and cannot afford or pay the cost of an appeal, the State will pay the cost of your appeal, and the Court will appoint an attorney to represent and assist you with the appeal, at no cost to you.
(10) The right to be represented and assisted by an attorney at all critical stages of the legal proceedings against you. You do not ever give up this right by pleading guilty; however, you may waive or give up this right and represent yourself, which is what is referred to as pro se representation. In that instance, the Court will appoint an attorney to advise and consult with you with regard to legal procedure, prior to, during, and subsequent to your trial, regarding your case, but will take no part in the proceedings unless requested to do so by you.
If you don’t understand these rights, inform the judge in open court.

In the document entitled “Acknowledgment of Viewing the Guilty Plea Video,” Knight was asked to initial each statement that he understood. He placed his initials by “2) my constitutional rights and that I will waive those rights when I plead guilty;”

¶ 23. There is also a copy of the plea petition, signed by Knight, which enumerates the same constitutional rights. In particular, it reads:

I understand that I have the right to plead not guilty to any offense charged against me. If I choose to plead not guilty, the Constitution guarantees me:
a. the right to a speedy and public trial by jury;
b. the right to see, hear, and face in open court all witnesses called to testify against me, and the right to cross examine those witnesses;
c. the right to use the power and process of the court to compel the production of any evidence, including the attendance of any witnesses in my favor;
d. the right to have the assistance of a lawyer at all critical stages of the proceedings against me;
e. the presumption of innocence, i.e., the State must prove beyond a reasonable doubt that I am guilty, and the right to a unanimous jury verdict of all twelve jurors before I can be found guilty;
f. the right to take the witness stand and testify in my own behalf if I want to; if I do not wish to take the witness stand and testify, I further understand that this fact cannot be held against me, and that the jury may be instructed that my refusal to testify may not be held against me.
g. I understand that unless I knowingly, willingly, and voluntarily agree to do so, I cannot be compelled to give testimony against myself in violation of my Fifth Amendment rights.
h. I further understandJMr'should I be convicted in a jury'trial, I have the right to appeal my conviction to the Mississippi Supreme Court, and with the assistance of counsel at no cost to me should I be financially unable to pay for an attorney to represent and assist me. Knowing and understanding the Constitutional and other legal rights and guarantees set forth in this paragraph, I hereby waive each and every one of them and renew my desire to enter a plea of guilty.

¶ 24. At the actual guilty plea hearing, the judge did not specify which rights Knight would be waiving. The extent of the discussion of his rights were as follows:

THE COURT: Did you read and sign or initial each page of your guilty plea petition?
THE DEFENDANT: Yes, sir, I did.
THE COURT: Did you read, sign and initial the acknowledgment that you viewed the guilty plea video?
THE DEFENDANT: Yes, sir, I did.
THE COURT: Did you understand the guilty plea video?
THE DEFENDANT: Yes, sir.
THE COURT: Do you have any questions you want to ask about that guilty plea video or your guilty plea petition?
THE DEFENDANT: No, sir.
THE COURT: Do you understand the nature and consequences of entering a plea of guilty to those charges?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand your constitutional rights as they were specifically stated in your guilty plea petition and as they were explained in the guilty plea video?
THE DEFENDANT: Yes, sir.
THE COURT: Do you wish to waive or give up those constitutional rights and continue with this hearing on your Petition to Plead Guilty?
THE DEFENDANT: Yes, sir.

¶ 25. The judge’s failure to explain each right during the plea hearing is not fatal to the voluntariness of the plea. The video and plea petition sufficiently explained the constitutional rights that Knight would waive if he pled guilty. The trial court determined in a face-to-face exchange that Knight understood the video and plea petition. Under the authority of Nelson, Pittman, and Courtney, we hold Knight made a knowing waiver of his constitutional rights.

B. Did the trial court explain the elements of the charge against Knight?

¶ 26. Another requirement for a voluntary plea is that the defendant know “what the elements are of the charge against him including an understanding of the charge and its relation to him, what effect the plea will have, and what the possible sentence might be because of the plea.” Wilson v. State, 577 So.2d 394, 396-97 (Miss.1991).

¶ 27. Knight argues that he was never informed of the elements of sexual battery for which he was indicted. Indeed, the trial court informed Knight of the elements of gratification of lust, the lesser offense to which Knight was pleading guilty.

¶ 28. “[W]hen there is a lesser included offense ... ‘personally addressing the defendant as to his understanding of the essential elements of the charge to which he pleads guilty seems essential.’ ” United States v. Adams, 566 F.2d 962, 968 (5th Cir.1978) (emphasis added) (quoting McCarthy v. United States, 394 U.S. 459, 467, n. 20, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969)). Since Knight was pleading guilty to gratification of lust, he was waiving his right against self-incrimination as to that charge. For this waiver to be knowing, he had to know what it meant to say, “I have committed the crime of gratification of lust against a minor.” The important inquiry was whether he understood the elements of that charge. At that point, his understanding of the additional elements required to prove sexual battery is a non-issue. Indeed, to this day, he has not withdrawn his plea of “not guilty” to sexual battery. This issue has no merit.

III. Was the indictment sufficient to charge a crime ?

¶ 29. Knight argues that the indictment failed to list all of the elements of the crime charged. He claims the trial court dismissed Count I of his indictment as being inadequate, and reasons the court therefore should have dismissed Count II, because it was a multi-count indictment. The lower court ruled that Knight waived this issue by virtue of pleading guilty. The State adds that the indictment tracks the language of the statute charging sexual battery.

¶ 30. A guilty plea does not waive the failure of the indictment to charge a criminal offense. Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989). Therefore, the lower court erred in ruling that this issue was waived. However, this error was harmless as Knight’s argument has no merit.

¶ 31. Knight’s argument rests on the proposition that the trial court dismissed Count I of his indictment as being defective. This is not the case. The prosecution agreed not to prosecute Count I in exchange for Knight’s guilty plea to a lesser-included offense of that alleged in Count II.

¶ 32. Even if the trial court had dismissed Count I as being defective, Count II standing alone was sufficient to charge a crime. Count II in his indictment reads:

[0]n or about the 27th day of October, 2001, in [Rankin County] and within the jurisdiction of this Court did willfully, unlawfully, and intentionally did [sic] engage in sexual penetration as defined by Mississippi Code Annotated § 97-3-97 with [M.W.], a female child under the age of fourteen (14) years, against her will, all within the jurisdiction of this court and in violation of Section 97-3-95, Mississippi Code Ann. (1972) as amended, and against the peace and dignity of the State of Mississippi.

“A person is guilty of sexual battery if he or she engages in sexual penetration with: (a) Another person without his or her consent. ...” Miss.Code Ann. § 97-3-95 (Rev. 2000). The indictment alleges that he engaged in sexual penetration with M.W. against her will. Therefore, we find the indictment was sufficient - to charge the crime of sexual battery.

¶ 33. Bolstering our conclusion is the case of Hines v. State, 472 So.2d 386 (Miss.1985). The indictment in Hines was nearly identical to that used here. Id. at 389-90. It read:

Hines on or about the 24th day of May ... 1982, in the County (Coahoma) and State (Mississippi) aforesaid, and within the jurisdiction of this Court, did unlawfully, willfully, and feloniously engage in sexual penetration of ... (R.W.), a female age-9, without the consent of the said ... (R.W.) and contrary to the form of the statute [Miss.Code Ann. § 97-3-95]....

Hines, 472 So.2d at 389-90. The Hines court held this was sufficient to charge the crime of sexual battery. Id. at 390. Thus, we find this issue is without merit.

IV. Was the grand jury process violated, because it could not find evidence of penetration?

¶ 34. Knight argues there was no evidence of penetration, and therefore, the grand jury should not have indicted him for sexual battery. The trial court held this argument was waived by virtue of Knight’s guilty plea. We agree.

¶ 35. The appropriate time to test sufficiency of the evidence to support an indictment is when the case is tried on its merits. Boddie v. State, 875 So.2d 180, 183(¶ 7) (Miss.2004). However, a guilty plea waives the right to trial and the right that the prosecution prove each element of the offense beyond a reasonable doubt. Jefferson, 556 So.2d at 1019. Therefore, Knight waived the argument that the grand jury did not have sufficient evidence to indict him.

V. Was Knight denied effective assistance of counsel?

¶ 36. Finally, Knight attacks the validity of his guilty plea by questioning the effectiveness of his attorney. He claims his attorney did not adequately explain the charges and that his attorney failed to investigate the evidence against Knight. Had the attorney investigated, Knight reasons he would have discovered there was no evidence of penetration in this case. The trial court found that Knight did not support his allegations with evidence and that he did not show how he was prejudiced by his attorney’s alleged inactions.

¶ 37. To prove ineffective assistance of counsel, a defendant must demonstrate that his counsel’s performance was deficient and that this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with the defendant. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. To overcome this presumption, “the defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result would have been different.” Id. In cases involving post-conviction relief, “where a party offers only his affidavit, then his ineffective assistance claim is without merit.” Lindsay v. State, 720 So.2d 182, 184(¶ 6) (Miss.1998); Covington v. State, 909 So.2d 160, 162(¶ 9) (Miss.Ct. App.2005).

¶ 38. All Knight offers this Court are his unsworn allegations in his brief and the report from a doctor who examined M.W. We have no proof that his attorney did not explain the charges to him. To the contrary, he twice swore under oath that his attorney explained the charges to him and that he understood them. He also offers no evidence that his attorney did not investigate this piece of evidence, or explain how he has the doctor’s report, if his attorney did not.

¶ 39. Knight’s claim also fails the second prong of Strickland, because he does not show that there was a reasonable probability, but for these alleged deficiencies, he would have insisted on going to trial. Additionally, “in order to establish that failure to investigate a line of defense constituted ineffective assistance, a petitioner must show that knowledge of the uninvestigated evidence would have caused counsel to vary his course.” Thomas v. State, 881 So.2d 912, 918(¶18) (Miss.Ct.App.2004) (quoting King v. State, 503 So.2d 271, 275 (Miss.1987)). Knight does not allege his attorney would have done anything differently if he had this report. While it is true that the doctor reported no sign of anal penetration, the report shows the victim was alleging penetration by both sodomy and fellatio. If the victim so testified and was believed by the jury, this was enough evidence for at least one count of sexual battery. We do not see that this knowledge would have caused his attorney to go to trial and have Knight risk twenty years to life, rather than to advise Knight to plead to a lesser offense and receive ten years in jail. Knight has failed to carry his burden of proof under Strickland. This contention is without merit.

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

LEE AND MYERS, P.JJ., CHANDLER, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. KING, C.J., AND CARLTON, J., NOT PARTICIPATING.