text:
    UNION CAMP CORPORATION and Liberty Mutual Insurance Company, Appellants/Cross-Appellees, v. Linda J. HALL, Appellee/Cross-Appellant.
    No. 2005-WC-01528-COA.
    Court of Appeals of Mississippi.
    Sept. 26, 2006.
    Rehearing Denied Feb. 6, 2007.
    Certiorari Dismissed April 5, 2007.

      Sarah Jane Lewis, J. Keith Pearson, Gulfport, attorneys for appellants.
    Charlie Baglan, attorney for appellee.
    Before LEE, P.J., CHANDLER and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. In 1991, Linda Hall began working for Union Camp, a manufacturer of industrial use cardboard boxes. In 1992, Hall injured her left knee as she operated machinery in Union Camp’s plant. In 1994, Hall filed a petition to controvert with the Workers’ Compensation Commission incident to her injured left knee.

¶ 2. In 1999, Hall amended her petition to controvert and claimed that she also suffered a compensable injury to her right knee. Hall claimed that she injured her right knee during her employment because she overcompensated for her left knee. In 2000, Hall attempted to amend her petition to controvert again. Hall claimed she developed chronic obstructive pulmonary disease (COPD) due to her employment.

¶ 3. In 2001, Hall went before an administrative judge for a hearing on all three of her claims. The administrative judge found that Hall was entitled to permanent and total disability benefits for her left and right knees. The administrative judge also found that Hall was not entitled to benefits for her COPD.

¶4. Union Camp appealed to the Full Commission. Hall cross-appealed the administrative judge’s finding that her COPD was not compensable. The Full Commission affirmed the administrative judge’s decision regarding both Union Camp’s appeal and Hall’s cross-appeal. The Chickasaw County Circuit Court affirmed both decisions as well. ■

¶ 5. Aggrieved, Union Camp appeals and claims the Commission erred (a) when it found Hall’s right knee injury was not barred by the statute of limitations, (b) when it found that Hall’s right knee injury was compensable, and (c) when it found Hall permanently totally disabled. Finding no error, we affirm. Additionally, Hall cross-appeals and claims the Commission erred when it refused to award benefits incident to her COPD claim. Likewise, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 6. Linda Hall worked in Union Camp’s manufacturing facility in Houston, Mississippi. Union Camp manufactured industrial cardboard boxes for Thermos and Action Furniture, among others. Hall began working for Union Camp in the summer of 1991.

¶ 7. On September 12, 1992, Hall injured her left knee. According to Hall, “We had a load put on the conveyor behind the [slitter] machine, and it was crooked. I was standing between two conveyors, two little narrow conveyors, and I was trying to straighten the boxes up, and when I did, I twisted my knee.” Hall thought her knee would improve with time, but it did not.

¶ 8. Ten days later, Hall visited Dr. Edward Gore, Union Camp’s company physician. Dr. Gore suspected that Hall tore her meniscus. Dr. Gore told Hall to rest, apply heat, and return for a follow-up appointment in ten days. When Hall returned, her knee had not improved. Consequently, Dr. Gore referred Hall to the Tupelo Orthopaedic Clinic in Tupelo, Mississippi.

¶ 9. Hall followed Dr. Gore’s advice and went to the Tupelo Orthopaedic Clinic, where she met Dr. Alex Bibighaus. Dr. Bibighaus had an MRI performed on Hall’s left knee. According to Dr. Bibi-ghaus, that MRI confirmed that Hall tore her meniscus. On March 5, 1993, Dr. Bibi-ghaus performed arthroscopic surgery on Hall’s left knee and repaired Hall’s torn meniscus.

¶10. On May 23, 1994, Hall filed a petition to controvert with the Mississippi Workers’ Compensation Commission. Hall asserted that she was entitled to compensation based on her left knee injury. Union Camp and Union Camp’s worker’s compensation insurance carrier, Liberty Mutual Insurance Co., filed an answer. Union Camp admitted that Hall sustained an injury, but contested the extent of her injury.

¶ 11. After her December 17, 1996, appointment with Dr. Bibighaus, Hall sought a different physician. According to Hall, she stopped seeing Dr. Bibighaus because “[h]e mentioned surgery, and I didn’t want to have surgery unless I had to.” Hall again went to Dr. Gore for a recommendation. After their January 9, 1997 meeting, Gore recommended Dr. Scott Jones of The Columbus Orthopaedic Clinic in Columbus, Mississippi. Again, Hall followed Dr. Gore’s recommendation.

¶ 12. Dr. Jones first saw Hall on January 27, 1997. During that initial visit, Hall complained of pain in both of her knees. Dr. Jones treated Hall’s knees with anti-inflammatory drugs, physical therapy, and knee injections. As of May 21, 1997, Dr. Jones felt as though Hall reached maximum medical improvement. Dr. Jones concluded that Hall had 20% permanent impairment to each lower extremity and 12% to her body as a whole. Dr. Jones released Hall to return to work with permanent restrictions.

¶ 13. Hall last saw Dr. Scott Jones during an appointment in June of 1997. According to Hall, she stopped seeing Dr. Scott Jones because she “kept trying to get an appointment with him ... and [she] never could see him.”

¶ 14. Meanwhile, Hall continued to see Dr. Gore. On August 27, 1997, Dr. Gore gave Hall a letter. Hall gave it to Patricia Archer, Union Camp’s personnel manager. That letter stated:

After physical examination in my clinic and speaking with Dr. Scott Jones, orthopedic surgeon, we have decided that Ms. Hall should be placed under the following restrictions in her job: No stooping, no pushing, no climbing, no lifting over 25 pounds if legs are used to lift. These are permanent restrictions. If you have any questions, please call us.”

According to Hall, Union Camp never modified her job according to those restrictions.

¶ 15. Meanwhile, Hall sought treatment from Dr. Gary Vise, another orthopaedic surgeon. On October 23,1997, Hall visited Dr. Vise for the first time. Dr. Vise examined Hall’s right knee and concluded that Hall had “bilateral, pre-existing genu val-gum with a tendency towards osteoarthritis and that this has been exacerbated or aggravated by her work activity.” Dr. Vise found a causal relationship between Hall’s right knee pain and her employment with Union Camp. Dr. Vise advised Hall that she should stop working immediately. Hall never returned to work afterwards.

¶ 16. In the meantime, Hall visited Dr. Gore and complained that she had problems breathing. Dr. Gore gave Hall an albuterol inhaler and referred Hall to Dr. Benjamin Moore, a pulmonologist with the IMA Foundation, Inc. in Tupelo, Mississippi. On July 31, 1998, Hall visited Dr. Moore for an initial evaluation of her breathing problems. Dr. Moore examined X-rays of Hall’s chest, prescribed predni-sone, and told Hall to return for a “pulmonary function study.” Hall returned on September 28, 1998. Dr. Moore performed a pulmonary function study and found that Hall showed “severe obstructive lung disease.” Dr. Moore diagnosed Hall with chronic obstructive pulmonary disease.

¶ 17. As for Hall’s right knee, Dr. Vise’s medical records show that he performed partial knee replacement surgery on Hall’s right knee on October 10, 1998. Dr. Vise felt as though Hall reached maximum medical improvement on her right knee as of January 7, 1999. Dr. Vise concluded that Hall had a permanent partial impairment to her right knee and that the impairment level was 37% for her right knee and 15% as a whole.

¶ 18. On April 14, 1999, Hall filed a motion to amend her petition to controvert. Hall sought to add a claim for her right knee. The administrative judge allowed Hall to amend her petition to controvert and add her right knee claim. Then, on February 17, 2000, Hall filed another motion to amend her petition to controvert. That time, Hall requested that she be allowed to assert a claim that she developed COPD as a result of work-related exposures while she worked for Union Camp.

¶ 19. On January 11, 2001, the parties attended a hearing before the administrative judge. Union Camp stipulated that Hall sustained a compensable injury to her left knee on September 12, 1992. However, Union Camp disputed Hall’s right knee claim and her COPD claim. The administrative judge then had the following entered into evidence: (a) Dr. Scott Jones’s deposition, (b) Dr. Vise’s two depositions, (c) Dr. Bibighaus’s deposition, (d) Dr. Riley Jones’s deposition, (e) medical records generated by Dr. Moore’s treatment, (f) Hall’s testimony, (g) testimony from Arthur Burkman, union representative at Union Camp, (h) testimony from Dr. Gore, and (i) testimony from Charles Wright, Union Camp’s environmental safety and health coordinator.

¶ 20. On June 29, 2001, the administrative judge entered her order. The administrative judge found that Hall had com-pensable injuries to her left and right knees. Additionally, the administrative judge found that Hall was entitled to permanent and total disability benefits due to her two knee injuries. However, the administrative judge found the evidence insufficient to conclude that Hall developed COPD as a result of her employment with Union Camp.

¶21. On July 12, 2001, Union Camp appealed to the Full Workers’ Compensation Commission. Hall cross-appealed the administrative judge’s decision that her COPD claim was not compensable. On July 30, 2002, the Full Commission affirmed. The Full Commission stated, “[hjaving heard the arguments offered on behalf of the parties and having thoroughly studied the record and the applicable law, the Commission affirms.”

¶ 22. On August 28, 2002, Union Camp appealed to the Chickasaw County Circuit Court. Again, Hall cross-appealed. After it heard oral arguments, the circuit court affirmed the full commission. Union Camp appeals and Hall cross-appeals to our Court.

STANDARD OF REVIEW

¶ 23. In reviewing appeals from rulings of the Workers’ Compensation Commission, this Court must resolve whether a quantum of credible evidence supports the Commission’s decision. Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1224 (Miss.1997). We may not resolve conflicts in the evidence. Id. at 1224-25. Rather, we presume that the trier of fact, the Commission, resolved all conflicts in evidence. Id. This is a highly deferential standard of review. Id. at 1225. Essentially, we will overturn the Commission if its decision was arbitrary and capricious. Id. We will also overturn the Commission if its decision was based on an error of law or an unsupported finding of fact. Meridian Professional Baseball Club v. Jensen, 828 So.2d 740(¶ 8) (Miss.2002).

ANALYSIS

I. WHETHER THE COMMISSION ERRED WHEN IT DID NOT FIND THAT HALL’S RIGHT KNEE INJURY WAS BARRED BY THE STATUTE OF LIMITATIONS.

¶24. Union Camp submits that the Commission erred when it did not find that the statute of limitations barred Hall’s right knee claim. Union Camp did not raise the statute of limitations at the initial hearing. Instead, Union Camp stated that it was “prepared to proceed on every claim that has properly been made in this case, which is the right knee and the left knee.” Failure to raise the statute of limitations causes the procedural bar to operate. Barnes v. Singing River Hosp. Systems, 733 So.2d 199(¶ 21) (Miss.1999). As such, this issue is procedurally barred.

II. WHETHER HALL PRESENTED SUFFICIENT EVIDENCE THAT HER RIGHT KNEE INJURY WAS CAUSED BY HER EMPLOYMENT.

¶25. As mentioned, the administrative judge found that Hall’s right knee injury was caused by her employment. Specifically, the administrative judge found that Hall:

complained as early as December 17, 1996, of pain bilateral in nature. Of significance is the job description of [Hall] and the duties that were required of her in that position. It was very probative to the undersigned as well that the assertion of Dr. Guy T. Vise, Jr. as to the overuse syndrome is compelling and would appear to have been the cause of her right lower extremity problems and or injuries and significantly pinpointing the right knee area, the combination of the overuse syndrome and the job responsibilities which applied to the claimant’s position resulted in a compensable injury to her right extremity providing a causal connection to the original left sided incident.

¶ 26. In this issue, Union Camp asserts that the Commission erred when it found that Hall’s right knee injury was caused by her employment. According to Union Camp, no testimony indicated that Hall injured her right knee as a result of her employment. Union Camp suggests that Hall injured her right knee due to an innate defect entirely unrelated to her employment.

¶ 27. Hall’s injury is compensa-ble if it arose “out of and in the course of employment without regard to fault which results from an untoward event or events, if contributed to or aggravated or accelerated by the employment in a significant manner.” Miss.Code Ann. § 71 — 3—3(b) (Rev.2000). To present a prima facie case of compensability, Hall had to prove, by a “fair preponderance of the evidence,” the following elements: (1) she sustained an accidental injury, (2) that arose out of and in the course of her employment, and (3) a causal connection between her injury and her claimed disability. Adams v. Lemuria, Inc., 738 So.2d 295 (¶ 9) (Miss.Ct.App.1999). If Hall presented a prima facie case of disability, the burden to disprove disability shifted to Union Camp. Id.

¶ 28. Union Camp does not dispute that Hall injured her right knee. There is no question that Dr. Vise treated Hall’s right knee or that Dr. Vise felt it necessary to perform partial knee replacement surgery on Hall’s right knee. Additionally, there is no evidence that Hall’s injury was anything but accidental. As to whether Hall’s knee injury “arose from her employment” with Union Camp, Hall testified that she injured her right knee because of her employment at Union Camp. Hall testified that she compensated for her left knee and placed a greater load on her right knee. Dr. Vise corroborated Hall’s testimony. During a deposition, Dr. Vise attributed Hall’s right knee injury to “overuse syndrome.” According to Dr. Vise, because Hall had surgery on her left knee, Hall placed a heavier load on her right knee. However, Union Camp focuses its argument on Hall’s proof of causation.

¶ 29. Proof of causation is sufficient even if it is minimal or reasonably incidental to employment. Id. Employment need not be the sole cause of injury. Id. If Hall’s employment contributed to her condition, the injury is compensable. Sharpe v. Choctaw Electronics Enterprises, 767 So.2d 1002(¶ 13) (Miss.2000).

¶ 30. Union Camp points out that Dr. Scott Jones was of the opinion that Hall’s right knee injury was unrelated to her left knee injury. True enough, when asked during a deposition whether he could say within a reasonable degree of medical probability that there was a causal connection between Hall’s left knee injury and her right knee complaints, Dr. Jones answered, “I don’t see any connection between a twisting injury to her left knee and her complaints I was seeing her for in her right knee.”

¶ 31. Union Camp also notes that, on January 27, 1998, Hall visited Dr. Riley Jones, another orthopaedic surgeon. Dr. Riley Jones examined Hall’s knees. Dr. Riley Jones’s notes reflect:

At the present time I think that the left knee problem is well documented. She had torn meniscus on the left knee which is secondary to her injury; however, she had pre-existing genu valgum in both knees and this has gradually gotten worse. She would like to relate this to her job; however, there has been no injury and I can’t relate this to it. The patient has an underlying problem on both knees of genu valgum. Therefore, she has had increasing stresses, increasing degenerative changes and these have absolutely nothing to do with her job. It would not have mattered if she was working at this place or another place and I have explained that to her. She has no effusion today. No instabilities. This is unfortunately one of the things that is more developmental and the right knee cannot be related to her job. As far as treatment possibilities, she can live with what she has got and I think there is the possibility of her changing jobs and going to something where she doesn’t have to stand all the time. In the future she may well have to have something else done, but at this point her genu valgum and the problem she is having in the right knee are developmental and age process as opposed to being related to her on the job problems.

¶ 32. There is no doubt that Dr. Scott Jones and Dr. Riley Jones were of the opinion that Hall’s right knee injury was unrelated to her employment at Union Camp. If there were no other evidence among the record, there would be no evidence to support the Commission’s decision. However, additional evidence from competent physicians indicated that Hall’s right knee injury was connected to her employment at Union Camp.

¶ 33. Dr. Gore testified that Hall’s right knee injury was causally related to her employment. Hall’s attorney asked Dr. Gore whether he could say within a reasonable degree of medical probability if there’s any causal connection between the right knee injury and Hall’s employment. Dr. Gore answered, “[w]ith continued stress on the knee, if she already had a propensity for injury and arthritis, I think continued wear and tear on the knee would accelerate those problems, so I think it did have an effect on it, yes.”

¶ 34. Union Camp admits that Dr. Gore related Hall’s right knee injury to her employment. However, Union Camp notes that Dr. Gore, a general practitioner, was not board certified in orthopaedies. Union Camp also points out that Dr. Gore testified that Dr. Scott Jones was more qualified to render an opinion as to Hall’s right knee and that Dr. Scott Jones opined that Hall’s right knee injury was unrelated to her employment and unrelated to her left knee injury. Even if we discredited Dr. Gore’s opinion, there is still additional testimony that Hall’s right knee injury was causally related to her employment at Union Camp.

¶35. Dr. Vise concluded that Hall’s right knee had been “exacerbated or aggravated by her work activity.” Dr. Vise found a causal relationship between Hall’s right knee pain and her employment with Union Camp. Union Camp notes that Dr. Vise was the only orthopaedic surgeon to relate Hall’s right knee injury to her employment. While that may very well be, that fact, in and of itself, is not sufficient to discredit Dr. Vise’s medical opinion. Union Camp also seems to claim that Hall’s attorney sent Hall to Dr. Vise so that Dr. Vise could testify that Hall’s right knee injury was work-related. Union Camp points out that Dr. Vise practices in Jackson, Mississippi while Hall lived in Aberdeen, Mississippi. Union Camp also notes that there are plenty of qualified ortho-paedic surgeons in Columbus, Tupelo, and Oxford — all of which are in closer proximity to Hall’s home in Aberdeen.

¶ 36. The Workers’ Compensation Act is to be construed liberally in favor of claimants, likewise for paying benefits for a compensable injury. Sharpe, 767 So.2d at (¶ 18). To fulfill the purposes of the Workers’ Compensation Act, we should resolve doubtful cases in favor of compensation. Id. at (¶ 19). Based on the “broad policy considerations undergirding the Workers’ Compensation Act and the liberal construction to be given the compensation statutes,” the injured worker should prevail when the evidence is “even.” Nichols-Banks v. Lenscrafters, 814 So.2d 808(¶ 21) (Miss.Ct.App.2002).

¶ 37. As we mentioned in our standard of review, we are only called upon to resolve whether a quantum of credible evidence supports the Commission’s decision. Hale, 687 So.2d at 1224. There can be no doubt that Dr. Vise’s expert medical opinion supports the Commission’s decision. While it is true that there was a conflict in expert medical opinion, we may not resolve conflicts in the evidence based on our mandated presumption that the trier of fact, the Commission, resolved all such conflicts. Id. Based on our highly deferential standard of review, we find that the Commission’s decision was not arbitrary and capricious, nor was it based on an error of law or an unsupported finding of fact. As such, we must affirm.

III. WHETHER THE COMMISSION ERRED WHEN IT FOUND THAT HALL WAS PERMANENTLY AND TOTALLY DISABLED DUE TO HER KNEE INJURIES.

¶ 38. In finding Hall permanently and totally disabled, administrative judge stated:

based upon the assignations of various physicians of permanent partial impairment ratings of 37% to the left extremity and 20% to the right extremity combine to provide a basis for a functional loss of use for industrial purposes relative to [Hall] ... which will together term by operation of law a permanent and total disability status on behalf of [Hall],

The Commission affirmed the administrative judge’s finding and adopted it as its own.

¶ 39. Union Camp submits that the Commission erred when it found that Hall was permanently and totally disabled due to her knee injuries. According to Union Camp, Hall is not entitled to benefits for permanent total disability because (a) Hall put forth no proof of loss of wage earning capacity, (b) Hall did not conduct a job search, (c) no evidence supported a finding that Hall sustained total loss of use of her right knee, and (d) Hall could have returned to work at Union Camp. Based on our standard of review, the broad issue is whether the Commission’s conclusion that Hall’s two knee injuries resulted in permanent total disability was (a) an error of law, (b) an unsupported finding of fact, or (c) arbitrary or capricious.

¶ 40. Given our resolution of Issue II above, Hall presented a claim for a bilateral injury. Section 71-3-17(a) of the Mississippi Code governs permanent total disability in the context of worker’s compensation cases. “Loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two (2) thereof shall constitute permanent total disability.” Miss.Code Ann. § 71-3-17(a) (Rev.2000). Of course, there is no evidence that Hall “lost” her legs due to her injury. Even so, “[cjompensation for permanent total loss of use of a member shall be the same as for loss of the member.” Miss.Code Ann. § 71-3-17(c)(22) (Rev.2000). Applying the language of the two subsections, loss of use of two legs constitutes permanent total disability. The obvious question is, just what constitutes “loss of use of a member?”

¶41. For purposes of workers’ compensation law, there are two classes of disability: (a) functional disability, otherwise called “medical” disability, and (b) industrial disability, otherwise called “occupational” disability. Functional/medieal disability refers to physical impairment. Weatherspoon v. Croft Metals, Inc., 853 So.2d 776(¶ 11) (Miss.2003). Industrial/occupational disability refers to the manner in which a claimant functional/medical disability affects the claimant’s ability to perform the duties of his employment. Id.

¶ 42. In the event that a claimant’s functional/medical disability rating varies from a claimant’s industrial/oc-eupational disability rating, the claimant is entitled to the higher of the two ratings. Id. at (¶ 8). “For example, if [a claimant] had suffered an arm injury which translated to a 25% occupational/industrial disability, but a 40% functional disability, she would be entitled to benefits based on the 40% functional disability.” Id. In a scheduled member case, if a claimant presents evidence that he is unable to continue in the position that he held at the time he suffered an injury, that evidence creates a rebuttable presumption that the claimant suffered a total occupational loss of the scheduled member. Walker v. Delta Steel Bldgs., 878 So.2d 113(¶ 9) (Miss.Ct.App. 2003). The degree and permanence of a claimant’s industrial disability is a question of fact to be proven by the evidence and facts as a whole. Sherwin Williams v. Brown, 877 So.2d 556(¶7) (Miss.Ct.App.2004) (citing Miss.Code Ann. § 71-3-17(a) (Rev.2000)).

¶ 43. Incident to her employment at Union Camp, Hall had arthroscopic surgery on her left knee and partial knee replacement surgery on her right knee. When Hall started working at Union Camp, she worked as a “specialty assistant machine operator.” Hall described her duties as follows:

I was working basically on the slitter. You have dyes that you put on the slitter when you set it up to do the cuts and the scores. I would set those up. We had to go get the materials and put it on the conveyor for the machine to use. And then as an assistant, once the machine was set up, I worked behind the machine catching the cardboard as it came off, stacking it.

During May of 1992, Union Camp promoted Hall from a specialty assistant machine operator to a specialty machine operator. Hall still worked on the slitter. Rather than catch the cardboard as it came out of the slitter, Hall’s position as specialty machine operator required that she feed the cardboard into the slitter. Hall injured her left knee during the fall of 1992.

¶ 44. As of April 1, 1993, Dr. Bibighaus released Hall to return to Union Camp in a light duty capacity. Hall went back to her position as a specialty machine operator on the slitter. Hall worked two shifts, felt pain in her left knee, and was forced to stop working. During her April 29, 1993 appointment with Dr. Bibighaus, Hall told Dr. Bibighaus that she wanted to return to work. Dr. Bibighaus saw “no reason why [Hall] [could] not” return to work. Hall next saw Dr. Bibighaus during September of 1993. Hall told Dr. Bibighaus that she was doing well at work until she had a “very difficult hard week in which she said she was basically overworked.”

¶ 45. Dr. Bibighaus’s notes from Hall’s December 27, 1993 appointment indicate that Dr. Bibighaus suggested “that [Hall] talk to her employers ... about some job modification.” According to Dr. Bibi-ghaus’s notes, Hall asked Union Camp to modify her employment responsibilities. Dr. Bibighaus also notes that, according to Hall, Union Camp had been “unwilling to work with her.” Dr. Bibighaus’s notes indicate that Union Camp put Hall “back on another type job which requires a lot of heavy lifting and pushing.” Dr. Bibi-ghaus’s notes also show that Hall planned to return to work that day and that Dr. Bibighaus recommended that Hall refrain from working on the slitter.

¶ 46. Dr. Bibighaus’s notes incident to an appointment in March of 1994 reflect his opinion that Hall should not perform any work that involved twisting or stacking heavy cardboard. Again, Dr. Bibi-ghaus noted that he told Union Camp that Hall did not need to work the slitter.

¶47. In November of 1994, Hall left her position as a specialty machine operator on the slitter. Hall moved to the finishing department, where she operated a bundler. Two months later, Hall stopped operating the bundler and began operating a bandsaw in the finishing department. Hall primarily worked the bandsaw in the finishing department for the remainder of her time at Union Camp. However, Hall also worked on a dye press and on the gluers, according to Union Camp’s needs. According to Dr. Bibighaus’s notes incident to his appointment with Hall during September of 1995, Dr. Bibighaus informed Union Camp that Hall needed to work on light duty only.

¶ 48. Dr. Scott Jones and Dr. Gore both placed the following permanent restrictions on Hall: “No stooping, no pushing, no climbing, no lifting over twenty-five pounds if legs are used to lift.” Dr. Gore was of the opinion that Hall could not do any work that required prolonged standing, twisting, bending, or anything that required lifting.

¶ 49. Hall testified that she could not return to work at Union Camp because “her knees would not hold up to it” due to the twisting and stooping that accompanied the jobs. When asked whether Hall could return to work at Union Camp, Dr. Vise answered:

I [don’t] believe she could go back to work doing that type of work. By that, I mean, it could be any company, but in terms of standing and doing an assembly line work with two bad knees, even though one of them has had a partial repair. The other one has had a repair also. So to stand and to twist on her knees, to me would not be reasonable. At age 50, I think she ought to find some other kind of work that allows her to primarily take the load off her knees by not standing and being able to sit or do light work or sedentary work. In my mind, it’s no worse whether you’re twisting or whether you’re loading it standing if the knee is sick and she’s had two menisci out. I mean both are important. Twisting just happens to be a frequent common way that people injure their knees.... Standing 8 hours a day on a knee that is known to be sick and by that I mean having been injured or diseased — it doesn’t matter how it started — but if the knee is sick and bad and then it’s had two menisci, the shock absorbers, I would never recommend a patient to stand all day.

¶ 50. In a letter dated May 30, 1997, from Patricia Archer, personnel supervisor for Union Camp, to Liberty Mutual, Archer represented that Hall’s position in the finishing/specialty department may require her to work at any of seventeen machines. Further, Archer indicated that the physical requirements of employment in the finishing/specialty department involved “stooping, limited climbing ... pushing of units up to 300 lbs. onto gravity-fed roller conveyors.” Archer also noted that employment in the finishing/specialty department averaged eight to ten hour workdays in which an employee would be required to stand 70% of the time. Clearly, those job requirements are contrary to Hall’s permanent restrictions.

¶ 51. Union Camp points out that Dr. Scott Jones reviewed a tape of Hall’s tentative job description. In a letter to Union Camp’s attorney dated November 20, 1997, Dr. Scott Jones opined that the activities detailed on the tape would be within Hall’s permanent restrictions. The job description to which Dr. Scott Jones referred is attached as an exhibit to Dr. Jones’s deposition.

¶ 52. In that job description, Archer listed Hall’s tentative duties as follows: “Although job title is specialty operator, work may be required at any of 17 various work stations in the finishing/specialty department. Various jobs at times require bending, lifting, reaching, pushing and pulling. Pushing is normally moving product on gravity rollers.” Archer also noted that a critical part of that employment involved standing 69% of the required eight hour work day.

¶ 53. Just because Hall could perform the activities on the tape does not mean that the tape was an accurate representation of Hall’s job responsibilities. Hall called Arthur Burkman as a witness. Burkman worked at Union Camp and also served as a union representative. Burk-man testified that, while the tape depicted an accurate representation of the jobs on the tape, the tape did not accurately depict the responsibilities of someone who worked as a specialty operator.

¶ 54. Still, Union Camp called Charles Wright, Union Camp’s environmental safety and health coordinator. Wright testified that he reviewed a tape of Hall’s tentative employment responsibilities at Union Camp and that the tape depicted an accurate representation of the essential job functions and physical activities that Hall would be asked to perform in the finishing department. Accordingly, there was a conflict in the evidence. Again, we find that the trier of fact resolved that conflict.

¶ 55. Though it does not factor in our analysis, we recognize that Hall was found to be disabled within the context of Social Security benefits. Dr. Vise was of the opinion that Hall needed to work in a sedentary capacity and that Hall did not need to stand and work on an assembly line. Dr. Jones and Dr. Gore placed Hall on restrictions including a 25 pound lift capacity. While Hall could have performed the jobs on the tape, which are a part of the record, Archer’s job descriptions clearly included responsibilities that fell outside Hall’s restrictions. Accordingly, we find that the Commission did not err when it found that Hall was not able to return to her employment.

¶ 56. Consequently, Hall presented evidence that causes operation of the presumption of total occupational loss of use of her knees. However, an employer may rebut that presumption. Union Camp relies on the following language from Jensen:

Therefore, where a permanent partial disability renders a worker unable to continue in the position held at the time of injury, we hold that such inability creates a rebuttable presumption of total occupational loss of the member, subject to other proof of the claimant’s ability to earn the same wages which the claimant was receiving at the time of injury. The presumption arises when the claimant establishes that he has made a reasonable effort but has been unable to find work in his usual employment, or makes other proof of his inability to perform the substantial acts of his usual employment. Rebuttal is shown by all the evidence concerning wage-earning capacity, including education and training which the claimant has had, his age, continuance of pain, and any other related circumstances. We find support for this holding in the same cases which created the substantial acts doctrine and which indicate that the ultimate determination must be made from the evidence as a whole considering loss of wage-earning capacity.

Jensen, 828 So.2d at (¶ 21).

¶ 57. Union Camp points out Hall’s testimony that she had previous experience working at a garment factory, as an EKG technician, and as the business manager of her husband’s body shop. According to Union Camp, Hall presented no proof that she could not return to work in those fields or any others to which she was suited by age, education, and experience.

¶ 58. True enough, Hall worked in a garment factory from 1966 to 1967, as an EKG technician for approximately four years, as a medical assistant for one year, and then sporadically in her husband’s body shop from 1976 to 1989.

¶ 59. Hall was over fifty years old and her previous forms of employment were well in her past. Age has frequently been a factor in workers’ compensation cases. See Jensen, 828 So.2d at (¶ 18). Given our deferential standard of review and the intent of the Workers’ Compensation statutes, we cannot find that the Commission erred. Especially where Hall’s previous employment amounts to one year in a garment factory — employment that may well have fallen within the scope of Hall’s physical restrictions, an EKG technician for four years, and a medical assistant for one year. Hall had each of those jobs for a very brief period over twenty years prior to her employment with Union Camp. Additionally, Hall’s sporadic part-time duties at her husband’s body shop involved running errands, answering telephones, and performing light duty repair work. Certainly those tasks do not necessarily qualify Hall as a “business manager.”

¶ 60. Union Camp also claims that Hall was not entitled to benefits because she did not conduct a job search. On cross-examination, Hall testified that she did not seek any employment whatsoever after Dr. Vise ordered her not to return to work in October of 1997. However, Hall presented a bilateral injury claim. Hall’s evidence created a presumption of occupational loss of use of both her knees. A job search is not part of a claimant’s burden of proof because loss of use of two major scheduled members automatically gives rise to permanent total disability and 450 weeks of benefits. Miss.Code Ann. § 71-3-17(a), (c)(22).

¶ 61. Based on our highly deferential standard of review, we no error and affirm.

ISSUE ON CROSS-APPEAL

¶ 62. We now turn to the issues that involve Hall’s COPD claim. We begin with Hall’s claim on cross-appeal that the Commission erred when it failed to find she was entitled to compensation for her COPD. If we find that the Commission was correct, Union Camp’s remaining issues become moot.

IV. WHETHER THE COMMISSION ERRED WHEN IT FOUND THAT HALL’S COPD CLAIM WAS NOT A COMPENSABLE INJURY.

¶ 63. Hall claims the Commission erred when it did not find that Hall’s COPD claim was a compensable injury. Naturally, Union Camp disagrees. We find no error as a result of the Commission’s decision.

¶ 64. Hall claims that the Commission should have found a causal connection between her COPD claim and her employment. Hall relies on Sharpe. In that case, the supreme court found that a workers’ compensation claimant was entitled to benefits where the claimant:

(1) suffered no pulmonary problems pri- or to his employment ...; (2) has demonstrated the presence of a lung ailment and/or shortness of breath; (3) has been exposed to substances at [his employment] which cause pulmonary distress; and (4) has been advised by every expert to avoid exposure to chemical irritants for fear of aggravation of his condition.

Sharpe, 767 So.2d at (¶ 18).

¶ 65. Unlike the claimant in Sharpe, Hall’s COPD was attributed to other causes. In 1976, Hall’s husband opened a body shop. Hall testified that she was not a full-time employee at her husband’s body shop, but she did work for a few hours a day until they closed the body shop in 1989. As for her duties in the body shop, Hall testified that she picked up parts, ran errands, did office work, helped dismantle cars, sanded finishes, removed interiors, and placed paper and tape on areas that were not to be painted. When Union Camp cross-examined Hall, Union Camp utilized medical records generated by Dr. Moore. Dr. Moore noted that Hall worked around body shop paint for a number of years. Hall admitted that she sanded ears and that the paint bay’s exhaust system vented near the office air conditioner. That is, paint fumes vented into the body shop office where Hall worked.

¶ 66. Hall also testified that there was a large volume of cardboard dust in the air from saws and “clean up day” in which the employees would clean under the machines. Hall testified that she “could smell a chemical” in the glue that held the boxes together. However, Hall admitted that she did not know whether she smelled any particular chemical in the glue or even what particular chemicals were in the glue.

¶ 67. Finally, Hall noted that Union Camp had an exhaust system and that Union Camp provided her with masks of which she “very seldom” used. Finally, Hall also testified that she smoked for eight to ten years. According to Hall, she smoked half a pack of cigarettes a day. On cross-examination, Hall admitted that she told a Dr. Chase that she smoked a pack and a half of cigarettes a day. Hall disputed that amount, but did not dispute that she told Dr. Chase that. According to Hall, “I just answered without thinking when I told him probably because I didn’t see that it was that significant.”

¶ 68. Hall also notes that Dr. Gore testified that Hall’s exposure to cardboard dust and chemicals at Union Camp caused or contributed to Hall’s COPD within a reasonable degree of medical probability. Actually, Dr. Gore testified that he thought “it could certainly lead to it.” On cross-examination, Dr. Gore admitted that he was not board-certified as a pulmonologist and that he sent Hall to see Dr. Moore because Dr. Moore was a specialist and was more qualified to treat her for her breathing problems. To be specific, Dr. Gore felt that Dr. Moore was an “excellent” doctor.

¶ 69. On further cross-examination, Dr. Gore recognized that the primary cause of COPD is smoking. Dr. Gore was unaware that Hall had a history of smoking. Dr. Gore admitted that permanent damage could result where someone smoked a pack and a half of cigarettes for ten years. What is more, Dr. Gore also did not know about Hall’s employment history at the body shop. Dr. Gore testified that, within a reasonable degree of medical certainty, Hall’s smoking and her history at the body shop were potential causes of her COPD.

¶ 70. Dr. Gore testified that he was not aware of any specific levels of airborne irritants at Union Camp. Confronted with test results, Dr. Gore admitted that the test results were well beneath the recommended exposure limits. Dr. Gore was not aware whether the levels of acetone or acetate were within the OSHA guidelines.

¶ 71. “The function of the circuit court (and of this Court) on appeal from rulings of the Workers’ Compensation Commission is to determine whether there exists a quantum of credible evidence which supports the decision of the Commission.” Hale, 687 So.2d at 1224. We are not called upon to “determine where the preponderance of the evidence lies when the evidence is conflicting, given that it is presumed that the Commission, as trier of fact, has previously determined which evidence is credible and which is not.” Id. at 1224-25. Here, there is ample evidence that Hall’s COPD claim was not a compensable injury. As such, we affirm the Commission’s decision.

¶72. Union Camp raised issues as to whether Hall’s COPD claim was barred by the statute of limitations, whether Hall should have been allowed to amend her petition to controvert on the day of the hearing, and whether Hall should have been allowed to call Dr. Gore as an expert witness to her COPD claim when she had not designated him as an expert witness in that regard. Based on our decision that the Commission did not err in its decision that Hall’s COPD claim was not a compen-sable injury, these remaining issues become moot. Accordingly, we need not discuss them.

¶ 73. THE JUDGMENT OF THE CHICKASAW COUNTY CIRCUIT COURT IS AFFIRMED ON DIRECT APPEAL AND CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE EQUALLY ASSESSED TO THE APPELLANTS/CROSS-APPELLEES AND APPELLEE/CROSS-APPELLANT.

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

      . International Paper Corporation has since purchased Union Camp.

      . Dr. Jones was of the opinion that Hall had improved as much as she was going to improve. At his September 1997 deposition, Dr. Jones still considered himself as Hall's treating physician.

      . Although it has no bearing on our analysis, Hall made numerous attempts to return to work at Union Camp after her initial injuries. What is more, Union Camp had Hall’s supervisor rate her job performance. Hall’s supervisor rated Hall as "good” or "very good” in all areas.

      . Hall worked as a homemaker from 1972 to 1976. We certainly do not imply that the duties of a homemaker do not entail substan-lial labor. We merely separate that labor from our analysis of Hall's wage-earning capabilities.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Jimmy TATUM, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-KA-01686-COA.
    Court of Appeals of Mississippi.
    Oct. 17, 2006.
    Rehearing Denied Feb. 6, 2007.
    Certiorari Denied April 5, 2007.

      Tommy W. Defer, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Jimmy Tatum was convicted in the Circuit Court of Yalobusha County for possession of cocaine in an amount more than two grams but less than ten grams. He was sentenced as a habitual offender to serve a term of sixteen years without the possibility of parole in the custody of the Mississippi Department of Corrections. The trial court denied Tatum’s motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. Aggrieved by his conviction and sentence, Tatum appeals. Finding no error, we affirm.

FACTS

¶2. On December 21, 2003, Officers Chris Turner and Chris Pullen of the Water Valley Police Department conducted a routine driver’s license checkpoint near the Water Valley city limits. Tatum was stopped at the checkpoint, but was unable to produce a driver’s license because it had been suspended for failure to pay child support. Officer Turner arrested Tatum and performed a pat-down search from his shoulders to his waist, which yielded “a clear plastic bag with a green leafy substance believed to be marijuana.” Officer Tuner then handcuffed Tatum behind his back, placed him in the front seat of his patrol car, and took him to the police station for booking. After booking Tatum, Officer Turner returned to his patrol car and discovered a clear plastic bag of cocaine lying in the front passenger side floorboard. Tatum was the only person to ride in the front passenger seat of Officer Tuner’s patrol car that day.

¶ 3. On February 25, 2004, Tatum was indicted by a Yalobusha County grand jury for one count of possession of cocaine in an amount between two grams but less than ten grams, and one count of possession of marijuana in an amount less than thirty grams. On May 3, 2004, the circuit court entered an order amending the indictment and charging Tatum as a habitual offender and a recidivist.

¶ 4. During trial, Officer Turner testified that, at the beginning and end of every shift, he routinely inspected the floor and seats of his patrol car for “debris,” or objects left behind by occupants of his patrol car. Officer Turner further testified that he inspected his patrol car at the end of his shift on December 20, and at the beginning of his shift on December 21. He found no debris during those inspections. Officer Turner also admitted, however, that he arrested two other men at that checkpoint, and that when he arrested Tatum, they had been sitting in the backseat of his patrol car, handcuffed behind their backs, for approximately fifteen or twenty minutes. Nonetheless, Officer Tatum explained that it was physically impossible to move from the back of his patrol car to the front because the two areas were separated by a cage.

¶ 5. After the State rested, Tatum moved for a directed verdict, which was denied. Tatum presented no evidence in his defense, and on March 3, 2005, Tatum was convicted of possession of cocaine in an amount more than two grams but less than ten. The trial court denied Tatum’s motion for JNOV or, in the alternative, a new trial. Aggrieved by the court’s decision, Tatum appeals asserting that the trial court erred in denying his motion for JNOV or, in the alternative, a new trial.

STANDARD OF REVIEW

¶ 6. A motion for JNOV challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). When reviewing a trial court’s denial of a motion for JNOV, we consider the evidence in the light most favorable to the prosecution. Dilworth v. State, 909 So.2d 731, 736(¶ 17) (Miss.2005) (citing Carr v. State, 208 So.2d 886, 889 (Miss.1968)). Reversal on the issue of legal sufficiency can only occur when evidence of one or more of the elements of the charged offense are such that “reasonable and fair-minded jurors could only find the accused not guilty.” Purnell v. State, 878 So.2d 124, 129(¶ 14) (Miss.Ct.App.2004) (citing Hawthorne v. State, 835 So.2d 14, 21(¶ 31) (Miss.2003)). However, where substantial evidence of such quality and weight exists to support the verdict, and where reasonable and fair-minded jurors may have found the appellant guilty, we must affirm the judgment of the trial court. McClendon v. State, 852 So.2d 43, 47(¶ 11) (Miss.Ct.App.2002) (citing Baker v. State, 802 So.2d 77, 81 (¶ 13) (Miss.2001)).

¶ 7. A motion for a new trial challenges the weight of the evidence. Beckum v. State, 917 So.2d 808, 812(¶ 10) (Miss.Ct.App.2005) (citing Carr v. State, 774 So.2d 469(¶ 15) (Miss.Ct.App.2000)). “When reviewing a trial court’s denial of a motion for a new trial, this Court must consider the evidence in the light most favorable to upholding the verdict.” Id. at 813(¶ 14). “We must keep in mind that it is the jury’s responsibility to resolve matters regarding the weight of the evidence and the credibility of witnesses.” Id. It is a fundamental principle of law that a jury verdict will not be disturbed except in the most extreme of situations. Washington v. State, 800 So.2d 1140, 1144(¶ 10) (Miss.2001) (citing Manning v. State, 735 So.2d 323, 333(¶ 10) (Miss.1999)). “Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Walker v. State, 881 So.2d 820, 831(¶ 32) (Miss.2004) (citing Dudley v. State, 719 So.2d 180, 182(¶8) (Miss.1998)).

ISSUE AND ANALYSIS

I. Whether the trial court erred in denying Tatum’s motion for JNOV or, in the alternative, for a new trial.

¶ 8. Tatum asserts that the circuit court erred in refusing to grant his motion for JNOV or, in the alternative, a new trial because there was no competent evidence linking him with the cocaine. Citing Cunningham v. State, 583 So.2d 960 (Miss.1991), Tatum asserts that, in order for the State to prove constructive possession, it was required to prove physical proximity between himself and the contraband, as well as additional incriminating factors. Consequently, Tatum maintains that the State failed to meet the necessary burden of proof for constructive possession.

¶ 9. In Cunningham, the court found that “[w]hen contraband is found on premises which are not owned by a defendant, mere physical proximity to the contraband does not, in itself, show constructive possession.” Cunningham, 583 So.2d at 962. The court further determined that, in that scenario, “the state must show additional incriminating circumstances to justify a finding of constructive possession.” Id. (citing Fultz v. State, 573 So.2d 689, 690 (Miss.1990)). In sum, “when contraband is found on premises, there must be evidence, in addition to physical proximity, showing the defendant consciously exercised control over the contraband ... absent this evidence, a finding of constructive possession cannot be sustained.” Id.

¶ 10. In Miller v. State, 634 So.2d 127 (Miss.1994), the court addressed the issue of constructive possession with facts similar to the case at bar. In that case, the arresting officer, Officer Akins, performed a pat down search of Miller, handcuffed him behind his back, and placed him in the backseat of the patrol car. Id. at 128. After booking Miller, Officer Akins returned to his car, which he testified was locked during his absence, and discovered a matchbox containing crack cocaine in the back seat. Id. Officer Akins also testified that he had performed a routine search of his vehicle before beginning his shift that morning. Id. In finding that competent evidence connected Miller with the contraband, the court noted that Miller was the only person who had recently been in the area where the drugs were found.

¶ 11. Although the facts in Miller differ from those in the case at bar in that Officer Akins testified that he locked his patrol car when he took Miller into the station for booking, we nonetheless find that the State presented sufficient evidence linking Tatum to the cocaine. As in Miller, Officer Turner testified that he found no contraband in his patrol car when he performed a routine inspection before beginning his shift on the day Tatum was arrested. Officer Turner also testified that, because Tatum was handcuffed behind his back, Tatum had access to an area of his body that was not searched during the pat down, i.e., the small of his back. Moreover, the evidence clearly shows that Tatum was the only person to sit in the front passenger seat of Officer Turner’s car. Furthermore, Officer Turner testified that he would have discovered the cocaine if it been in his patrol car prior to Tatum’s arrest because he “had reached for his mike several times during that day so [he] couldn’t help but notice [the] area” of his car where the cocaine was found.

¶ 12. Based on these additional incriminating factors, we cannot conclude that reasonable and fair-minded jurors could only find the accused not guilty; nor can we conclude that the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Consequently, we find that the trial court did not err in denying Tatum’s motion for JNOV or, in the alternative, a new trial. This issue is without merit.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF YALOBUSHA COUNTY OF CONVICTION OF POSSESSION OF COCAINE AND SENTENCE OF SIXTEEN YEARS WITHOUT THE POSSIBILITY OF PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Officer Turner testified that he normally pats someone down from their shoulders to their ankles, but he stopped at Tatum's waist because he found the bag of what he believed to be marijuana. Officer Turner also testified that he did not search the small of Tatum's back, and that Tatum had access to that area of his body because he was handcuffed behind his back.

      . The State did not prosecute the charge for possession of marijuana.

      . Tatum had two prior felony convictions. In December of 1994, he was convicted in the Circuit Court of Calhoun County of possession of cocaine, and in July of 1994, he was convicted in the Circuit Court of Yalobusha County of sale of cocaine.

      .Officer Pullen also testified that he routinely inspected the seat and floorboard of his patrol car for any weapons or narcotics that may have been left behind by someone arrested earlier. He further explained that the inspections were protocol for members of the Water Valley Police Department, and that officers were also required to fill out daily vehicle inspection reports.


text:
    Charles Lavel STRINGER, Appellant, v. Thomas J. LOWE, Jr., Appellee.
    No. 2005-CP-01348-COA.
    Court of Appeals of Mississippi.
    Nov. 7, 2006.
    Rehearing Denied Feb. 27, 2007.
    Certiorari Denied April 26, 2007.

      Charles Lavel Stringer (Pro Se), attorney for appellant.
    John Hinton Downey, Madison, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Charles Lavel Stringer filed suit against Thomas J. Lowe Jr. in the Circuit Court of Hinds County alleging legal malpractice. On November 4, 2004, the trial court entered an order granting Lowe’s motion for summary judgment. Aggrieved by the decision, Stringer appeals. Finding no error, we affirm.

FACTS

¶ 2. At some time prior to September 18, 1990, Lowe was appointed to represent Stringer in a criminal case, wherein Stringer was indicted as a habitual offender on drug charges. During the trial, Lowe was not allowed to call three witnesses on Stringer’s behalf because Lowe had failed to disclose the witnesses to the prosecution prior to trial. Stringer himself addressed the trial court and complained of ineffective counsel. Stringer was convicted by the jury and sentenced to thirty years in the custody of the Mississippi Department of Corrections and was ordered to pay a fine in the amount of one million dollars. On October 7, 1993, the Mississippi Supreme Court ruled that Lowe was ineffective as counsel and overturned Stringer’s conviction. Stringer v. State, 627 So.2d 326, 330 (Miss.1993).

¶ 3. Stringer filed suit against Lowe in the Circuit Court of Hinds County alleging legal malpractice on September 4, 1996, which was approximately six years after his criminal trial. The trial court granted Lowe’s motion for summary judgment based on the fact that the applicable statute of limitations had run.

¶ 4. Aggrieved by the judgment, Stringer appeals. He presents the following issues for this Court’s review: (1) whether the trial court erred in applying the three-year statute of limitations; (2) whether the trial court erred in ruling that the statute of limitations begins to run when the plaintiff becomes aware of such alleged misrepresentation; (3) whether actions taken by a court-appointed attorney constitute state actions under 42 U.S.C. § 1983.

STANDARD OF REVIEW

¶ 5. An appeal from summary judgment is reviewed de novo. Jacox v. Circus Cir cus Miss., Inc., 908 So.2d 181, 183(¶4) (Miss.Ct.App.2005) (citing Cossitt v. Alfa Ins. Corp., 726 So.2d 132, 136(¶ 19) (Miss. 1998)). The standard by which we review the grant or denial of summary judgment is the same standard as is employed by the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure. Id. (citing Dailey v. Methodist Med. Ctr., 790 So.2d 903, 906-07(¶ 3) (Miss.Ct.App.2001)). Pursuant to Rule 56(c) of the Mississippi Rules of Civil Procedure, summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.” The evidence must be viewed in the light most favorable to the non-moving party. Jacox, 908 So.2d at 181 (¶ 4) (citing Dailey, 790 So.2d at 903).

ISSUES AND ANALYSIS

I. Whether the trial court erred in applying the three-year statute of limitations.

¶ 6. The Mississippi Legislature amended section 15-1-49 of the Mississippi Code Annotated (1972) on March 12, 1990, and changed the general statute of limitations from six to three years. Stringer terminated Lowe on September 21, 1990. Stringer filed suit against Lowe alleging legal malpractice on September 4, 1996. Furthermore, the statute of limitations was not tolled. This issue is without merit.

II. Whether the trial court erred in ruling that the statute of limitations begins to run when the plaintiff becomes aware of such alleged misrepresentation.

¶ 7. Stringer asserts that the statute of limitations should begin to run when a conviction or sentence is invalidated and not when the party becomes aware of the alleged misrepresentation. This assertion is incorrect. In Smith v. Sneed, 638 So.2d 1252, 1253 (Miss.1994), the Court ruled that the statute of limitations in a legal malpractice action properly begins to run on the date the client learns or through the exercise of reasonable diligence should learn of the negligence of his lawyer. Stringer terminated Lowe on September 21, 1990, which suggests that he had learned of the alleged negligence that was committed by Lowe. Furthermore, the trial transcript contains statements made by Stringer at trial that allege misrepresentation by Lowe. This issue is without merit.

III.Whether actions taken by a court-appointed attorney constitute state action under 42 U.S.C. § 1983.

¶ 8. The Fourteenth Amendment protects individuals from constitutional violations perpetrated against them by the State but not by private individuals. Lugar v. Edmondson Oil Co., 457 U.S. 922, 930, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). Under 42 U.S.C. section 1983 (2000), the federal government has provided for civil redress against individuals who, under col- or of state law, deprive another of “any rights, privileges, or immunities secured by the Constitution or laws.” This has been interpreted to mean that “the conduct causing the deprivation of a federal right be fairly attributable to the State.” Id. at 937, 102 S.Ct. 2744. However, the Supreme Court has ruled that, for purposes of section 1983 liability, public defenders are not state actors when the alleged constitutional violation arose as a result of traditional defense counsel duties. Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981). Except for the source of payment, the relationship between public defender and client is indistinguishable from that of any other attorney and client. Id. at 318, 102 S.Ct. 445. Once a lawyer has undertaken representation of an accused, the duties and obligations are the same whether the lawyer is privately retained, court-appointed or serving in a legal aid or defender program. Id. Thus, section 1983 was not properly used by Stringer in this case. This issue is without merit.

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

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


author: LEE, P.J.,

text:
    Melvin CRAFT, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01550-COA.
    Court of Appeals of Mississippi.
    Nov. 7, 2006.
    Rehearing Denied May 1, 2007.
    Melvin Craft, Appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On April 1, 2005, Melvin Craft pled guilty to burglary of a dwelling. The Circuit Court of Marion County sentenced Craft to twenty-five years in the custody the Mississippi Department of Corrections, with fifteen years to be served at the Mississippi Department of Corrections, and the remaining ten years of the sentence to be served under the post-release provisions with a five year supervision period, pursuant to Mississippi Code Annotated Section 47-7-34 (Rev.2004). Craft was also ordered to pay a fine of $1,000, an assessment of $1,500 to the Marion County Public Defenders Fund, and his part of restitution of $3,760 to the burglary victim. The court further ordered that if the co-defendant did not pay her part of restitution, Craft would be responsible for the entire amount.

¶ 2. The trial judge, treating the petition as a motion for post-conviction relief, summarily dismissed Craft’s writ of habeas corpus finding it “not understandable and simply a complaint to the lawful and correct criminal process and procedure that was applied to him.” In his appeal, Craft argues (1) his sentencing order is incorrect and (2) the State did not honor its plea bargain agreement.

¶ 3. Finding no error in the sentencing order, we affirm.

STANDARD OF REVIEW

¶ 4. In reviewing a trial court’s decision to deny a motion for post-conviction relief, the standard of review is clear. The trial court’s denial 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 questions of law are raised the applicable standard is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

DISCUSSION

I. DID THE TRIAL COURT ERR BY ORDERING CRAFT TO PAY THE FULL AMOUNT OF RESTITUTION IF CO-DEFENDANT FAILED TO PAY HER SHARE?

¶ 5. Craft argues that the portion of the order requiring him to pay the entire restitution if the co-defendant fails to pay is an error and should be deleted from the sentencing order.

¶ 6. Craft cites King v. State, 304 So.2d 650, 651 (Miss.1974), which holds that “[w]hen sentences are imposed in excess of statutory authority, such sentences should be corrected by the trial courts on motion to correct sentence.” This case is inapplicable since no sentence or fine in excess of statutory authority has been imposed. We assume Craft’s argument is that the trial court’s imposition of joint and several liability for the restitution is incorrect.

¶ 7. Joint and several liability has been consistently upheld as to criminal co-defendants who act in concert. See, e.g., United States v. Powell, 354 F.3d 362, 367 (5th Cir.2003) (affirming joint and several liability against co-conspirators for restitution); United States v. Ismoila, 100 F.3d 380, 398-99 (5th Cir.1996) (finding the district court was “well within its discretion to order restitution for the losses resulting from the entire fraudulent scheme and not merely the losses directly attributable to [defendant’s] actions”); Arbuckle v. State, 894 So.2d 619, 624 (¶24) (Miss.Ct.App.2004) (affirming joint and several restitution in burglary of a dwelling and simple assault conviction).

¶ 8. The order that Craft pay the co-defendant’s part of the restitution if she fails to pay is not in error, and it is not inconsistent with the rest of the sentence. We affirm the order of restitution.

II. DID THE STATE FAIL TO HONOR ITS PLEA BARGAIN AGREEMENT?

¶ 9. Craft’s argument that the sentencing order is inconsistent with the plea bargain agreement is without merit since there is no inconsistency between the plea bargain and the sentence.

¶ 10. Craft plea bargained for a sentence of fifteen years. The sentence as ordered is twenty-five years, with fifteen years in custody of the Mississippi Department of Corrections and the remaining ten years under the post-release provisions with a five year supervision period. The post-release supervision is to be served concurrent to Craft’s suspended sentence. Craft’s sentence of fifteen years to be served is consistent with his plea bargain of fifteen years.

¶ 11. Craft also plea bargained for the habitual offender charge to be dismissed. His argument as to this point, that the sentence is inconsistent with the plea bargain, is also without merit since the habitual offender charge was dismissed.

¶ 12. Craft’s only other argument is that he could not be given a suspended sentence and probation. This argument also fails. Trial courts have the authority to suspend, in whole or in part, a convicted felon’s sentence. Miss.Code Ann. § 47-7-33 (2004); Johnson v. State, 925 So.2d 86, 91 (¶ 9) (Miss.2006). In its order denying Craft’s motion to clarify the sentence, the trial court stated that the “term of post-release supervision that the Defendant is ordered to serve in his sentencing order is never interpreted to be an addition to the Defendant’s term of parol [sic], rather it is a term served within, or concurrent, to the Defendant’s suspended sentence.” The sentence as ordered by the trial court is not in error and is therefore affirmed.

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

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


author: CHANDLER, J„ GRIFFIS, J.,

text:
    Benny AGUILAR a/k/a Benny Soliz Aguilar, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01273-COA.
    Court of Appeals of Mississippi.
    Dec. 5, 2006.
    Rehearing Denied May 1, 2007.

      Helen Bagwell Kelly, Batesville, for Appellant.
    Office of the Attorney General by Deirdre McCrory, for Appellee.
    Before LEE, P.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J„

for the Court.

¶ 1. After a jury trial, Benny Aguilar was convicted in the Circuit Court of Pano-la County of fondling a child and sentenced to fifteen years in the custody of the Mississippi Department of Corrections. Aguilar appeals, arguing (1) the evidence was insufficient to support the verdict; (2) the verdict was against the overwhelming weight of the evidence; (3) the court erred in restricting Aguilar’s cross-examination of the victim; (4) the court erred in qualifying Jan Sample as an expert witness; (5) the court erred in allowing Sample to remain in the courtroom as an exception to the sequestration rule; and (6) the court erred in allowing certain witnesses to testify during the sentencing phase.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On or about October 24, 2001, the Mississippi Department of Human Services (DHS) in Panola County received a report that K.P., age fourteen, had been fondled by her stepfather, Aguilar. Bonnie Jean Rogers, a social worker with DHS, interviewed K.P. and then contacted Officer Mark Whitten with the Panola County Sheriffs Department. DHS delayed further investigation upon learning that Aguilar had been deployed to Bosnia with his National Guard unit. In April 2002, Rogers discovered that Aguilar had returned to the home. On April 15, 2002, Rogers met with Officer Whitten, Aguilar, his attorney, and KJP.’s mother. At this meeting, Aguilar agreed that he was not to be alone with K.P. and that he would move out of the family home. Shortly thereafter, Aguilar returned to the family home.

¶ 4. On September 3, 2004, another DHS social worker, Katherine Robinson, conducted a follow-up interview with K.P. at which K.P. reported that there had been further abuse. On November 4, 2004, Aguilar was indicted in a four-count indictment. Two counts were severed. Aguilar was tried on one count of fondling K.P. in May 2001 in violation of Mississippi Code Annotated section 97-5-23 and one count of sexual battery of K.P. on September 9, 2003 in violation of section 97-3-95(2). The trial occurred on May 31, 2005 and ended on June 2, 2005.

¶ 5. At the trial, K.P. testified about the two incidents. K.P. stated that, in May 2001, the family moved from Pope to Batesville. K.P. was fourteen years old at that time. K.P. rode in a van with Aguilar to deliver a load of belongings to the new house. It was dark, and no one else was in the van with them. Aguilar was driving and K.P. was in the front passenger seat. K.P. testified that Aguilar drove down a back road and slowed down. Stating, “you owe me,” Aguilar forced his hands inside K.P.’s shirt and touched her breasts. K.P. began to cry. When they approached the new house, Aguilar stopped touching K.P. and told her not to tell anyone or “it would get worse the next time.” Several witnesses testified that, when K.P. arrived at the new house that night, her behavior was normal. K.P. testified that she did not tell anyone about the incident because she was frightened of Aguilar.

¶ 6. K.P. further testified that, in September 2003, Aguilar was living at Fort Benning, Georgia. K.P. was sixteen years old at that time. K.P.’s Chevrolet Blazer broke down and her mother called Aguilar to assist in repairing the vehicle. Aguilar returned from Georgia. On September 9, 2003, Aguilar drove K.P. to his mother’s house on Curtis Road in Panola County to pick up a truck for K.P. to use as temporary transportation. K.P. testified that Aguilar was driving his pickup truck and K.P. was in the passenger seat. It was dark, and no one else was in the vehicle. According to K.P., Aguilar asked her why she had reported the May 2001 incident and if she would tell if he did it again. K.P. said, “yes.” Then, Aguilar began driving slowly. He forced his hand under KP.’s shirt. K.P. further testified that Aguilar stopped the truck, exited, and walked around to the passenger’s side. K.P. testified that Aguilar opened the passenger door, jerked KP.’s pants off, and raped her. K.P. stated that she did not tell anyone about the rape because Aguilar had said he would kill her if she told.

¶ 7. Jan Sample, with Family Crisis Services in Oxford, Mississippi, testified that she conducted a forty-one minute forensic interview with K.P concerning the allegations of abuse. Sample testified that the purpose of a forensic interview is to determine if something has happened to a child and, if so, what exactly occurred. Sample stated that there was no indication during the interview that K.P. had been coached. She said that K.P. related the same facts consistently and that she provided a high level of detail. Sample opined that KP.’s interview was consistent with that of a child who had been abused.

¶ 8. Aguilar testified. He acknowledged that in May 2001 he and K.P. rode alone together to the new house during the move, but denied that he had fondled K.P. or had behaved inappropriately toward her. Aguilar also acknowledged that, on September 9, 2003, he drove K.P. to his mother’s house to pick up a truck. Aguilar denied that he had sexual intercourse with K.P. or had behaved inappropriately toward her. Aguilar speculated that K.P. had made up a tale of sexual abuse for personal gain and to retaliate against him because he was a strict disciplinarian.

¶ 9. The jury found Aguilar guilty of fondling. The jury could not agree on a verdict as to sexual battery and the court declared a mistrial as to that count. After a sentencing hearing, the court sentenced Aguilar on the fondling conviction to the maximum penalty of fifteen years.

LAW AND ANALYSIS

I. THE STATE PROVIDED INSUFFICIENT EVIDENCE AND FAILED TO PROVE A PRIMA FACIE CASE AS CHARGED IN THE INDICTMENT.

II. THE COURT BELOW ERRED IN DENYING DEFENSE JURY INSTRUCTION D-l.

¶ 10. Aguilar argues that the trial court erred in denying his motion for a JNOV and his request for a peremptory instruction. Both of these arguments challenge the sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). We consider the correctness of the trial court’s ruling on the sufficiency of the evidence based on the evidence before the court at the time the last challenge was made. Id. Aguilar last challenged the sufficiency of the evidence with his motion for a JNOV.

¶ 11. In reviewing the denial of a motion for a JNOV, this Court views the credible evidence and the reasonable inferences to be drawn therefrom in the light most favorable to the State. Id. If the evidence is of such quality and weight that reasonable jurors could find the defendant guilty beyond a reasonable doubt, then we will affirm. Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005). But, we must reverse if the facts and inferences “ ‘point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty.’” Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)). “Matters regarding the weight and credibility of the evidence are to be resolved by the jury.” McClain, 625 So.2d at 778.

¶ 12. Mississippi Code Annotated section 97-5-23(2) (Rev.2006) provides:

“Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child younger than himself or herself and under the age of eighteen (18) years who is not such person’s spouse, with or without the child’s consent, when the person occupies a position of trust or authority over the child shall be guilty of a felony .... A person in a position of trust or authority over a child includes without limitation a child’s ... stepparent.... ”

The evidence showed that, in May 2001, Aguilar was over the age of eighteen and K.P. was younger than Aguilar and under the age of eighteen. The evidence further showed that Aguilar was K.P.’s stepfather and, therefore, occupied a position of trust and authority over K.P.

¶ 13. Aguilar challenges the sufficiency of the evidence that he touched, handled or rubbed K.P. for the purpose of gratifying his lust or indulging his depraved licentious sexual desires. Aguilar points out that there was no physical evidence and that the strongest evidence against him was KP.’s own testimony, which was uncorroborated. Aguilar admits that the jury was entitled to weigh the conflicting testimony, but argues that KJP.’s testimony was incredible and, therefore, was legally insufficient to sustain his conviction.

¶ 14. It has been held that the unsupported testimony of a sex crime victim is sufficient to sustain a conviction if that testimony is not discredited or contradicted by other credible evidence, particularly when the victim’s conduct is consistent with that of a person who has been the victim of a sex crime. Collier v. State, 711 So.2d 458, 462 (Miss.1998). The victim’s physical and mental condition after the incident and the fact that the victim immediately reported the incident are acceptable as corroborating evidence. Id. In Riley v. State, 797 So.2d 285, 288(1110) (Miss.2001), Riley was convicted of fondling a mentally deficient thirteen year old child. The child was alone with Riley at the time of the incident. Id. at 286(¶ 2). The victim’s trial testimony differed slightly from her statement to the police. Id. Riley argued that her testimony was incredible and the evidence was insufficient to sustain his conviction. Id. at 288(¶ 10). The court observed that the child’s testimony was corroborated by that of her mother, who stated that after the incident took place, the child went into the mother’s room and told her about the incident. Id. The mother further testified that the child was frightened. Id. The court found that the testimony of the child and of her mother were sufficient to uphold Riley’s conviction. Id. at 288(¶ 11).

¶ 15. Aguilar contends that the testimony of K.P. was incredible and insufficient to sustain his conviction because K.P. did not immediately report the fondling incident and the witnesses who saw her after the incident testified that her demeanor and deportment appeared normal. Aguilar contends that K.P.’s behavior was not consistent with that of a sexual abuse victim. However, Sample testified that it can be difficult for child sexual abuse victims to talk about the abuse. She testified that children react differently to sexual abuse, and that some victims do not immediately report incidents of abuse due to feelings of fear, guilt, and shame. KP.’s testimony was that she did not immediately report the fondling incident because she was afraid of Aguilar. Sample testified that HP.’s failure to immediately report the abuse was not inconsistent with the behavior of someone who has been sexually abused. The facts that K.P. did not immediately report the abuse and appeared normal to witnesses who saw her after the abuse did not render her testimony legally insufficient. The evidence was sufficient to enable a reasonable juror to find beyond a reasonable doubt that Aguilar touched, handled, or rubbed K.P. for the purpose of gratifying his lust or indulging his depraved licentious sexual desires. The trial court did not err by denying Aguilar’s motion for a JNOV.

III. THE VERDICT IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 16. Aguilar contends that he is entitled to a new trial because the verdict was against the overwhelming weight of the evidence. A motion for a new trial is addressed to the discretion of the trial court. Bush, 895 So.2d at 844(¶ 18). The motion should be granted only if the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Id. On review of the denial of a motion for a new trial, we view the evidence in the light most favorable to the verdict, and will reverse only in exceptional cases where the evidence preponderated heavily against the verdict. Id.

¶ 17. Viewing the evidence in the light most favorable to the verdict, K.P. testified that Aguilar fondled her while they were alone in a van. Aguilar admitted that he was alone with K.P. at the relevant time. K.P. testified that she did not report the fondling incident for several months because she was afraid of Aguilar. K.P. also testified that she was raped by Aguilar two years later. Sample testified that KP.’s interview was consistent with someone who had been sexually abused due to KP.’s consistency and KP.’s ability to provide details. The evidence did not preponderate so heavily against the verdict as to require a new trial. This issue is without merit.

IV. THE COURT BELOW ERRED IN NOT ALLOWING THE DEFENSE FULL CROSS-EXAMINATION OF K.P.

¶ 18. Aguilar next argues that the trial court erroneously limited his cross-examination of K.P. in violation of the Confrontation Clause of the Sixth Amendment and Article 3, section 26 of the Mississippi Constitution of 1890. Specifically, Aguilar argues that the trial court erred by limiting his questioning of K.P. about her past sexual conduct. During direct examination of K.P. concerning the sexual battery, K.P. stated that Aguilar “took something from me that I can never get back, something that I was supposed to give somebody special.” The following occurred during Aguilar’s cross-examination of K.P.:

Q. Who is Jeremy?
A. Jeremy is an ex-boyfriend.
Q. Was he special?
Mr. Kelly: Objection, Your Honor.
The Court: Sustained.
Q. Were you and Jeremy supposed to go to your prom?
A. We were.
Q. Were ya’ll to get a motel room?
Mr. Kelly: Objection, Your Honor.
The Court: Sustained. Approach the bench.

A bench conference occurred that was not recorded. During a break in the testimony, Aguilar put on the record that he had been trying to discredit KP.’s testimony that Aguilar had taken “something from [her]” by showing that K.P. had been sexually active with other men. The trial court found that under the Rules of Evidence, particularly Mississippi Rule of Evidence 412, the testimony was inadmissible.

¶ 19. This Court reviews the rulings of the trial court admitting or excluding evidence for abuse of discretion. Ladnier v. State, 878 So.2d 926, 933(¶ 27) (Miss.2004). An error in the admission or exclusion of evidence is not grounds for reversal unless the error affected a substantial right of a party. Id.; M.R.E. 103(a). Mississippi Rule of Evidence 412(a) provides that reputation or opinion evidence about the past sexual behavior of an alleged sexual offense victim is inadmissible. Rule 412(b) provides that evidence of a victim’s past sexual behavior other than reputation or opinion evidence is inadmissible unless the evidence is:

(1) Admitted in accordance with subdivisions (c)(1) and (c)(2) hereof and is constitutionally required to be admitted; or (2) Admitted in accordance with subdivision (c) hereof and is evidence of
(A) Past sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen, pregnancy, disease, or injury; or
(B) Past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior with respect to which a sexual offense is alleged; or
(C) False allegations of past sexual offenses made by the alleged victim at any time prior to the trial.

“M.R.E. 412 is designed to prevent the introduction of irrelevant evidence of the victim’s past sexual behavior to confuse and inflame the jury into trying the victim rather than the defendant.” Hughes v. State, 735 So.2d 238, 273 (¶ 153) (Miss.1999).

¶20. Rule 412(c) provides that, if the accused wishes to offer evidence of specific instances of the victim’s past sexual behavior under subdivision (b), the accused must make a written motion, with a written offer of proof, not later than fifteen days before the scheduled trial date. However, the court may permit the motion to be made at a later time, including during the trial, if the court determines that the issue to which the evidence relates has newly arisen in the case, or if the court determines that the evidence is newly discovered and could not have been obtained earlier in the exercise of due diligence. M.R.E. 412(c)(1). If the court determines that the offer of proof contains evidence described in subdivision (b), then the court must hold a hearing in chambers to determine if the evidence is admissible. M.R.E. 412(c)(2). If the court concludes that the evidence is relevant and the probative value outweighs the danger of unfair prejudice, then the evidence is admissible to the extent that an order of the court specifies the evidence that may be offered and the areas in which the victim may be cross-examined. M.R.E. 412(c)(3).

¶ 21. Aguilar argues that the court’s limitation of his cross-examination of K.P. about her past sexual behavior violated his fundamental constitutional right to impeach KP.’s credibility. Aguilar admits that the evidence did not fit any of the three categories enumerated in Rule 412(b)(2). However, Aguilar contends that the cross-examination would have shown that K.P. was lying about never having had sex and thus the evidence was impeaching and “constitutionally required to be admitted” under Rule 412(b)(1).

¶ 22. Aguilar recognizes that, for admissibility under Rule 412(b)(1), the other evidence of past sexual behavior must not only be constitutionally required to be admitted but must be admitted in accordance with subdivisions (c)(1) and (c)(2), and that he did not comply with those subsections. Since Aguilar failed to comply with subsections (c)(1) and (c)(2), there was no error in the court’s limitation of Aguilar’s cross-examination of K.P. about her past sexual history. Levy v. State, 724 So.2d 405, 409(¶ 18) (Miss.Ct.App.1999). This issue is without merit.

V. THE COURT BELOW ERRED IN QUALIFYING JAN SAMPLE AS AN EXPERT WITNESS.

¶23. The State offered Sample as an expert witness in the field of forensic interviewing and Aguilar conducted voir dire of Sample as to her qualifications. Then, without objection by Aguilar, the court accepted Sample as an expert in the field in which she was offered pursuant to Mississippi Rule of Evidence 702. On appeal, Aguilar attacks Sample’s credentials in the field of forensic interviewing and argues that the trial court erred by allowing Sample to testify as an expert in the field. Because Aguilar failed to object at the trial to the qualification of Sample as an expert, this issue is waived for consideration on appeal. McBeath v. State, 739 So.2d 451, 454(¶ 11) (Miss.Ct.App.1999).

VI. THE COURT BELOW ERRED IN ALLOWING JAN SAMPLE TO REMAIN IN THE COURTROOM AS AN EXCEPTION TO THE SEQUESTRATION RULE.

¶ 24. Aguilar argues that the trial court erred by allowing Sample to remain in the courtroom for the duration of the trial pursuant to Mississippi Rule of Evidence 615(3). Rule 615 provides:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.

Witness sequestration is a matter of right except for the three categories of persons listed under the rule. Douglas v. State, 525 So .2d 1312, 1316 (Miss.1988). Under Rule 615(3), an expert witness may be permitted to remain in the courtroom during the testimony of other witnesses. Chapin v. State, 812 So.2d 246, 249(¶ 6) (Miss.Ct.App.2002). This practice complements Rule 703, which allows an expert to base an opinion on facts or data “perceived by or made known to him at or before the hearing.”

¶ 25. The administration of the sequestration rule is a procedural matter within the trial court’s sound discretion. Collins v. State, 361 So.2d 333, 334 (Miss.1978). The prosecution requested that Sample be permitted to remain in the courtroom to assist the prosecution in formulating cross-examination and so she could listen to the defense case and testify in rebuttal. The court permitted Sample to remain in the courtroom during the testimony both to assist the prosecutor and to enable her to render opinions based on the testimony. As it turned out, Sample testified during the State’s case-in-chief but was not called in rebuttal. Some of her opinion testimony was based upon the earlier testimony of K.P.

¶ 26. Aguilar argues that the trial court’s ruling was an abuse of discretion because Sample’s remaining in the courtroom enabled her to give testimony that was unduly cumulative of that of other witnesses, presumably K.P. We find no abuse of discretion. Sample’s remaining in the courtroom allowed her to formulate opinion testimony pursuant to Rule 703. And, Sample’s testimony was not unduly cumulative of K.P.’s testimony. This issue is without merit.

VII. THE COURT BELOW ERRED IN ALLOWING TESTIMONY OF STATE WITNESSES IN THE SENTENCING PHASE ON MATTERS NOT BEFORE THE COURT.

¶ 27. During the sentencing phase, the trial court heard the testimony of several other alleged victims of sexual abuse by Aguilar. At the conclusion of the hearing, the court sentenced Aguilar to fifteen years, the maximum penalty. See Miss.Code Ann. § 97-5-23(2) (Rev.2006). Without citation to authority, Aguilar contends that the alleged victims’ testimony was inadmissible at the sentencing hearing because it concerned matters not before the court, had no substantial indicia of reliability, and was clearly prejudicial to Aguilar.

¶ 28. Aguilar’s failure to provide any authority for his argument has waived any error concerning this issue. Holloman v. State, 656 So.2d 1134, 1141 (Miss.1995). Notwithstanding the waiver, Aguilar’s argument is without merit. During sentencing, the trial court is not limited to the consideration of the evidence that was presented of record during the trial. Jackson v. State, 551 So.2d 132, 149 (Miss.1989).

¶ 29. THE JUDGMENT OF THE CIRCUIT COURT OF PANOLA COUNTY OF CONVICTION OF FONDLING AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAY $100 TO THE MISSISSIPPI CRIME VICTIMS FUND IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PANOLA COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. GRIFFIS, J., CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY SOUTHWICK, ISHEE AND ROBERTS, JJ.

GRIFFIS, J.,

Concurring:

¶ 30. I concur but write separately to address one issue discussed by the majority.

IV. The court below erred in not allowing the defense full cross-examination of K.P.

¶ 31. Aguilar argues that he was deprived his constitutional right to cross-examine K.P. on her statement that Aguilar caused her to lose her virginity. I write not to disagree with the majority’s conclusion but to expand on the exact details of how this testimony was admitted and to discuss the proper procedure if it occurs again in the future.

¶ 32. At trial, K.P. testified that Aguilar fondled her and raped her. Thus, K.P. provided detailed evidence to support the charges that Aguilar committed the crimes of fondling and sexual battery. At the conclusion of her direct examination, Robert Kelly, the prosecutor, asked K.P. a number of questions about the various individuals, including the grand jury and now the trial jury, to whom she has had to tell her story. The following is an excerpt of the final question that Kelly asked K.P. on direct examination and the first couple of questions asked by Clay Vandenberg, Aguilar’s trial counsel. Kelly concluded his direct examination of K.P. by asking:

Q. You tell Mr. Benny Aguilar what it means to you what he did to you.
A. I can’t even put into word what he did to me. I mean he took something from me that I can never get back, something that I was supposed to give somebody special. I just don’t understand how somebody can go around saying that you love someone and you tell everybody that this is my daughter, and then you turn around and you hurt them in just an unbelievable amount and then not feel any shame for it.
Mr. Kelly: Tender the witness.
The Court: Cross-examination.
By Mr. Vandenburg (Defense counsel):
Q. Who is Jeremy?
A. Jeremy is an ex-boyfriend.
Q. Was he special?
Mr. Kelly: Objection, Your Honor.
The Court: Sustained.
Q. Were you and Jeremy supposed to go to your prom?
A. We were.
Q. Were y’all to get a motel room?
Mr. Kelly: Objection, Your Honor.
The Court: Sustained. Approach the bench.

¶ 33. A bench conference was then held. No record was made of the conference. Later in the trial, the court allowed a proffer of evidence. The following occurred:

The Court: Mr. Vanderburg, you had asked some questions earlier today concerning prior sexual activity apparently of that witness. Is there anything about it you wanted to put in the record at this time?
Mr. Vanderburg: Your Honor, I’ll just put it on the record that on direct examination [K.P.] was asked ... Mr. Kelly stood up here and asked her to tell Mr. Aguilar and myself how it made her feel, and she testified that he took something from me I can’t get back. I was supposed to give that to someone special. And I think the questions would show that she has been sexually involved with other men.
The Court: So the focus of your questions went to other sexual activity of [K.P.] with other people? Is that the direction of your question?
Mr. Vanderburg: One was her boyfriend Jeremy, who she had planned on getting a motel room at the prom. That was one. Another one with some other individuals — I didn’t go into it after your ruling — some other individuals that she had been sexually involved with.
The Court: We did have a conference at the bench which was not of record, and that was the reason I wanted to give you an opportunity to make those statements. But I did advise you at the bench that the Court was not going to allow you to question her concerning past sexual behavior with someone unrelated to this.
Clearly under our rules, particularly Rule 412, I think that would have been improper, irrelevant, prejudicial, and not admissible, so that’s the basis for the Court’s ruling on those questions....

¶ 34. The prosecutor’s final question sought an answer that was not relevant to the crimes alleged against Aguilar. Clearly, under Rule 401 of the Mississippi Rules of Evidence, the prosecutor’s question— “You tell Mr. Benny Aguilar what it means to you what he did to you” — does not attempt to elicit “relevant evidence.” The direct examination of the victim is not the time for the State to ask the victim to address the accused.

¶ 35. Indeed, I can think of no possible response that K.P. could have provided to that question that would have “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. “Evidence which is not relevant is not admissible.” M.R.E. 402. Had defense counsel objected, I would expect the trial court to have sustained the objection, under M.R.E. 401 and 402, and not allowed K.P. the opportunity to introduce evidence that is not relevant.

¶ 36. As an appellate court, we have no way of knowing whether this question and answer was prepared in advance of trial or whether it was simply asked spontaneously to see where the witness would go with her answer. Regardless, this one question too many would not have established a fact in consequence on the charges of fondling or sexual battery. It does indicate that the State, whether intended or not, tried to put in evidence the victim’s prior sexual conduct, at least the lack thereof. Even if it were considered relevant, under M.R.E. 403, the fact that Aguilar may have taken her virginity is clearly more prejudicial than probative. It could only seek to enrage the jury against Aguilar or create sympathy from the jury toward K.P.

¶ 37. My concerns notwithstanding, Aguilar’s counsel did not, object. Thus, any error from his failure to object is waived. M.R.E. 103(a)(1). See Young v. State, 425 So.2d 1022, 1027-28 (Miss.1983); Luther T. Munford, Mississippi Appellate Practice § 3-2 (2002).

¶ 38. My purpose in writing separately has more to do with how Aguilar’s counsel reacted to this evidence. Yanderburg, a very capable defense lawyer, seized the opportunity to argue that the State opened the door. He immediately launched a counter-offensive to attack K.P.’s credibility or sought to introduce the specifics of her prior sexual conduct. The court did not allow K.P. to answer, and permitted Yanderburg an opportunity at the next break for a proffer of evidence.

¶ 39. Aguilar admits that Rule 412(a) of the Mississippi Rules of Evidence provides that “in a criminal case in which a person is accused of a sexual offense against another person, reputation or opinion evidence of the past sexual behavior of an alleged victim of such sexual offense is not admissible.” But, he argues that evidence of past sexual behavior of the alleged victim may be admissible if “[ajdmitted in accordance with subdivisions (c)(1) and (c)(2) hereof and is constitutionally required to be admitted.” M.R.E. 412(b)(1).

¶ 40. Aguilar then urges this Court to hold that it was plain error for Aguilar’s counsel to not have followed the procedural requirements of Rule 412(c)(1) or (c)(2). Aguilar claims that the evidence sought was not character, reputation or opinion evidence but it was to elicit motive and impeach the credibility of K.P., under M.R.E. 607.

¶ 41. The proper procedure is in Rule 412(c)(1). This procedure was not followed. The rule includes an exception “that the court may allow the motion to be made at a later date, including during trial, if the court determines ... that the issue to which such evidence relates has newly arisen in the case.” Rather than simply launch into a counter-offensive and introduce evidence of prior sexual acts with one of the victim’s boyfriends, under Rule 412(c)(1), defense counsel was required to make a motion that asked the court for a hearing under Rule 412(c)(2) so that the court could then decide what evidence, if any, should be admitted under Rule 412(c)(3).

¶ 42. Defense counsel did not seek to follow the clearly defined procedure of Rule 412(c). This matter was not presented to the trial court and should not be considered on appeal.

¶ 43. Furthermore, I do not believe it rises to the level of plain error because KP.’s testimony could have prejudiced the jury on the sexual battery charge and not the fondling charge. A finding of plain error is necessary when a party’s fundamental rights are affected, and the error results in a manifest miscarriage of justice. Williams v. State, 794 So.2d 181, 187(¶ 23) (Miss.2001). To determine if plain error has occurred, we must determine “if the trial court has deviated from a legal rule, whether that error is plain, clear or obvious, and whether the error has prejudiced the outcome of the trial.” Cox v. State, 793 So.2d 591, 597(¶ 22) (Miss.2001); Porter v. State, 749 So.2d 250, 261(¶ 36) (Miss.Ct.App.1999).

Since the jury returned a guilty verdict on the fondling charge and no verdict on the sexual battery charge, I am of the opinion that this issue was not plain error. Therefore, I would affirm.

SOUTHWICK, ISHEE AND ROBERTS, JJ„ JOIN THIS OPINION.

      . We have changed the name of the minor child victim in order to protect her identity.