author: CHANDLER, J.,

text:
    MUELLER COPPER TUBE COMPANY, INC. and The Travelers Insurance Company, Appellants v. Stanley W. UPTON, Appellee.
    No. 2004-WC-01493-COA.
    Court of Appeals of Mississippi.
    Nov. 1, 2005.
    Rehearing Denied Feb. 21, 2006.
    Certiorari Denied June 1, 2006.

      David B. McLaurin, Tupelo, James Gregory Brown, attorneys for appellants.
    Duncan L. Lott, Booneville, attorney for appellee.
   CHANDLER, J.,

for the Court.

¶ 1. Stanley Upton was an employee for Mueller Copper Tube Company. After he sustained a work-related ankle injury and underwent surgery, he returned to Mueller and attempted to work in job capacities that were less physically demanding. However, each of the four jobs he performed after the surgery caused him to have back problems. Upton’s treating physician took him off work and opined that Upton had reached maximum medical improvement. Upton applied for other jobs but was unable to find employment.

¶ 2. Mueller Copper Tube Company admitted that the injury to the ankle was compensable, but it denied that Upton sustained any work-related back injuries and denied that Upton was permanently or totally disabled. The administrative law judge held a hearing and found that Upton was permanently and totally disabled. The Workers’ Compensation Commission and Itawamba County Circuit Court affirmed. Mueller appeals, raising the following issues:

WHETHER UPTON IS ABLE TO RELY ON A PRESUMPTION OF PERMANENT DISABILITY WHEN UPTON FAILED TO REPORT TO WORK
WHETHER THE COMMISSION ERRED IN AWARDING BENEFITS BECAUSE UPTON FAILED TO MAKE A REASONABLE OR DILIGENT JOB SEARCH ATTEMPT WHETHER THE WORKERS’ COMPENSATION ERRED IN GIVING THE OPINIONS OF DR. CHRISTOPHER MORE WEIGHT THAN THOSE OF DR. TYRER AND DR. MI-TIAS
WHETHER THE WORKERS’ COMPENSATION COMMISSION’S DETERMINATION OF PERMANENT AND TOTAL DISABILITY TO UPTON’S BACK WAS BASED UPON SUBSTANTIAL EVIDENCE

¶ 3. Finding no error, we affirm.

FACTS

¶ 4. Stanley Upton attended school through the ninth grade and had worked for Mueller Copper Tube Company, Incorporated (“Mueller”), since 1987. Prior to working at Mueller, Upton worked in several manual labor, unskilled jobs. These jobs included that of a lumber stacker, press operator, painter, carpenter, and plumber. Upton’s responsibilities at Mueller were to pick up coils of pipe weighing approximately eighty-seven pounds, place the coils in a box, and seal the box. The performance of those duties required Upton to bend, stoop, pivot on his feet, and walk. On January 29, 1997, Upton sustained an injury to his ankle during the course and scope of his employment. Upton’s surgery and much of his follow-up treatment was performed by Dr. Robert Christopher, an orthopedic surgeon. After Dr. Christopher told Upton that he had reached maximum medical improvement, Upton filed for workers’ compensation benefits. Mueller admitted that Upton had a compensable workers’ compensation claim, but it denied that Upton was permanently disabled. Upton filed his motion to controvert on August 7,1998.

¶ 5. When Upton returned to work at Mueller after his surgery, he attempted to work at other jobs within the company. Upton testified that he had problems with his ankle and back while performing all of these jobs. His first job with Mueller after his surgery involved scrapping paint and sorting parts. His second job involved packing coils. This job lasted for about a month. Upton’s third job involved tying coils, a job that required bending, twisting, and throwing thirty-pound coils over his head. This job lasted for approximately one week. Upton’s final job with Mueller was sweeping floors, which lasted for approximately three weeks.

¶ 6. After leaving his job with Mueller, Upton was unable to obtain other employment. He sought light-duty work with three prospective employers in Itawamba County, but no such positions were available. The three prospective employers were B & B Metal Manufactures, which makes bushhogs; TCA, a packing company; and Mid-American Hardwood Company. Upton also contacted Key Staff Source, a temp agency, which was unable to find a job for Upton due to his limitations and restrictions.

¶ 7. Dr. Christopher’s records showed that Upton visited his office thirty-four times between February 7, 1997 and March 1, 1999. Dr. Christopher examined Upton on February 7, 1997, and diagnosed his condition as a ruptured Achilles tendon in his left ankle. On February 11, 1997, Dr. Christopher performed the surgery, finding that the tendon was completely torn off the bone.

¶ 8. On June 6, 1997, Dr. Christopher allowed Upton to begin working at light duty for four hours a day. On June 13, 1997, Dr. Christopher took him off work because Upton’s job duties made his ankle hurt. On July 7, 1997, Dr. Christopher allowed Upton to resume working. Dr. Christopher’s notes revealed that Upton’s Achilles tendon was aggravated whenever Upton increased his work activity.

¶ 9. On June 15, 1998, Dr. Christopher concluded that Upton had reached maximum medical improvement and was assigned an impairment rating of twenty percent to the foot, which converted to an eight percent rating for the entire body. Dr. Christopher described the ratings as “very conservative” and concluded that it was “more than likely [that] in the future the actual numbers will increase as his post traumatic arthritis increases.”

¶ 10. On September 30, 1998, Upton complained to Dr. Christopher about his back, which Dr. Christopher said was related to Upton’s antalgic gait as a result of his ruptured achilles tendon. He also believed that the pushing and pulling involved in Upton’s job activity aggravated Upton’s back and caused muscle spasms. Since that time, ninety-five percent of Dr. Christopher’s treatment of Upton was for his back.

¶ 11. On January 18, 1999, Dr. Christopher told Upton that he could work at Mueller as a chopper because that job caused the least aggravation to his back. He recommended that Upton take a ten-minute break every hour to reduce the pressure to his ankle and back.

¶ 12. On May 5, 1999, Dr. Christopher referred Upton for physical therapy for his back and took him off work. Since that time, Dr. Christopher never released Upton to return to work. Two months later an MRI to Upton’s back revealed a very large bulging disc with neural foramina encroachment and spinal stenosis. Dr. Christopher referred Upton to Dr. Walter Eckman, a neurosurgeon. Dr. Eckman did not recommend surgery for Upton’s back but did recommend physical therapy.

¶ 13. On July 2, 2001, Dr. Christopher gave Upton a maximum medical improvement. Upton was assigned a twenty percent impairment rating to the lower left extremity, which translated to an eight percent rating to the body as a whole. Upton was not allowed to work because of muscle spasms.

¶ 14. Dr. Roy Tyrer saw Upton on July 19, 2001, for the purpose of conducting a Commission-appointed independent medical examination. Dr. Tyrer testified through his deposition taken on October 16, 2001, that Upton’s gait or walk was essentially normal. Dr. Tyrer stated that Dr. Christopher’s opinion that Upton’s back pain originated from the ankle injury involved speculation and that he would not have rationalized it to the degree to which Dr. Christopher had. Dr. Tyrer also testified that he would not place much restriction on Upton’s physical activity because there was no premise upon which to base it.

¶ 15. Dr. Tyrer also testified that Upton was exaggerating his symptoms with grunts and groans and was not exerting full maximum effort during his examination. Dr. Tyrer was of the opinion that Upton’s back pain was due to the changes that occur as a person gets older. Dr. Tyrer testified that he believed that Upton could work, but he should limit his lifting to thirty-five to fifty pounds, with no repetitive stooping, turning, or bending. Dr. Tyrer agreed with Dr. Christopher’s impairment rating assigned to Upton’s ankle and further opined that permanent physical impairment to Upton’s back would not exceed an additional two percent.

¶ 16. Dr. Johnny Mitias saw Upton on June 27, 2002, for purposes of conducting an independent medical examination, at the request of Mueller. Dr. Mitias performed a Waddell’s test, which is designed to detect whether a patient exaggerates symptoms. Upton tested positive for symptom magnification in all five of the tests administered to him. Dr. Mitias testified that he could not find anything on Upton’s MRI that would indicate a back injury. Dr. Mitias said that Upton could walk in a straight line and do some lifting of objects that weighed less than twenty pounds, and that there could be a job at Mueller that might fit within those restrictions.

¶ 17. Don Killough, a vocational rehabilitation expert, performed a vocational evaluation on Upton on January 8, 2001. Killough administered an achievement test, which showed that Upton scored below the third grade level in reading, spelling, and arithmetic. In addition, Killough testified that Upton had no transferable work skills and that Upton’s age would make training for any job difficult. Kil-lough also opined that Upton was not qualified to work as a cashier because that type of employment required ninth grade reading and math skills.

¶ 18. In addition to offering live testimony, Killough submitted a vocational evaluation report. He classified Upton’s pre-injury job as unskilled work in the medium range of physical demands, and he classified Upton’s employment prior to working at Mueller as unskilled work in the heavy range of physical demands. Kil-lough opined that Upton could not return to Mueller in any capacity. To ascertain Upton’s potential to perform other types of work, Killough administered the Slosson’s Intelligence Scale, on which Upton received an I.Q. score which indicated that Upton was in the borderline range of intellectual functioning.

¶ 19. Mueller hired Sam Cox as a vocational expert. Cox conducted a survey of jobs in Upton’s geographical area and identified five employment opportunities that fit within Upton’s vocational profile. Cox was of the opinion that Upton was employable. Cox evaluated Upton based on the work restrictions provided by Dr. Tyrer, which indicated that Upton had lifting limitations of thirty-five to fifty pounds and could not engage in repetitive stooping or bending. Cox had reviewed Dr. Christopher’s medical records but not his depositions. Cox was not aware until the hearing that Dr. Christopher had opined that Upton could not return to his pre-injury job.

¶ 20. Cox made no attempt to evaluate Upton’s intelligence or reading or math abilities. Instead, Cox based his opinion of Upton’s job skills on Upton’s statement that he had completed the ninth grade. Cox did acknowledge that intelligence directly affected one’s ability to perform jobs that required skill. Cox identified five potential employers for Upton: Chevron One Stop in Tupelo, hiring cashiers; Amerihost Inn in Tupelo, hiring desk clerks; Snelling Personnel in Tupelo, hiring technical machine operators; Ablest Staffing Service in Tupelo, hiring industrial workers who perform light-duty manual labor; and Key Staff Source in Tupelo, hiring industrial workers, painters and plumbers.

¶ 21. Upton’s wife, Donna, verified that Upton was in constant pain with his back and leg, which required him to elevate his leg to prevent swelling. Donna verified that she took her husband to Key Staff Source and filled out the applications for him. She also testified that Upton is unable to perform any household chores.

¶ 22. On October 10, 2002, the administrative law judge found that Upton was permanently and totally disabled.

¶ 23. The judge discounted Cox’s testimony that Upton was qualified to work, because Cox was unaware of Upton’s reading and arithmetic skills and his borderline intellectual functioning. The judge found that Upton’s back injury was related to his work. In doing so, he relied on Dr. Christopher’s medical opinions and discounted the opinions of Dr. Tyrer and Dr. Mitias because each of those doctors evaluated Upton only once.

¶ 24. Following a hearing on December 15, 2003, the Workers’ Compensation Commission affirmed the decision of the administrative law judge. The Commission chose not to expound on the findings of the administrative law judge, affirming his findings in all respects. Mueller appealed to the Itawamba County Circuit Court, which affirmed the Commission.

ANALYSIS

¶ 25. The Mississippi Workers’ Compensation Commission is the ultimate fact-finder. Vance v. Twin River Homes, Inc., 641 So.2d 1176, 1180 (Miss.1994). Where, as here, the Commission adopts the findings of the administrative law judge without presenting its own findings of fact, this Court will examine the findings of fact made by the administrative law judge. McDowell v. Smith, 856 So.2d 581, 585 (¶ 10) (Miss.Ct.App.2003); Tommy Brooks Oil v. Leach, 722 So.2d 708, 711 (¶ 10) (Miss.Ct.App.1998). This Court will affirm where substantial credible evidence supports the Commission’s decision. Smith v. Jackson Const. Co., 607 So.2d 1119, 1124 (Miss.1992).

¶ 26. A worker who receives a permanent functional impairment is guaranteed some measure of compensation. Miss.Code Ann. § 71-3-17(c) (Rev.2000). The ankle is included as a scheduled member. Id. The measure of compensation in a scheduled member case depends on two factors: (1) the degree of functional loss of use as demonstrated by the medical evidence, usually expressed as a percentage, and (2) the impact the loss of function has on the worker’s ability to perform the normal and customary duties associated with his usual employment. Smith, 607 So.2d 1119 at 1128; General Elec. Co. v. McKinnon, 507 So.2d 363, 365 (Miss.1987). The first aspect of disability determination is known as functional disability, and the second aspect of disability determination is known as industrial disability. Robinson v. Packard Elec. Div., General Motors Corp., 523 So.2d 329, 331 (Miss.1988). The permanently injured worker is entitled to compensation based on the greater of the percentage of functional disability or the percentage of industrial disability. Smith, 607 So.2d at 1127; Walker Mfg. Co. v. Cantrell, 577 So.2d 1243, 1247-48 (Miss.1991).

WHETHER UPTON IS ABLE TO RELY ON A PRESUMPTION OF PERMANENT. DISABILITY WHEN UPTON FAILED TO REPORT TO WORK

¶ 27. Where the claimant wishes to prove total occupational loss, the claimant bears the burden of proving that he has sought and has been unable to find work “in the same or other employment.” Jordan v. Hercules, Inc., 600 So.2d 179, 183 (Miss.1992) (quoting Miss.Code Ann. § 71-3-3(1) (Rev.2000)). The Mississippi Supreme Court has held that when a claimant, having reached maximum medical improvement, “reports back to his employer to work, and the employer refuses to reinstate or rehire him, then it is prima facie [evidence] that the claimant met his burden of disability.” Id. Upton never reported back to work at Mueller after Dr. Christopher assigned maximum medical improvement on July 2, 2001. Mueller relies on Jordan to argue that there is a requirement that a claimant must report back to his employer in order to enjoy the presumption of permanent disability. Jordan is factually different from this case.

¶ 28. Mueller does not contest that Upton is unable to perform the job he held before his surgery to the ankle, and it also admits that Upton is unable to stand up for extended periods of time. Nevertheless, it claims that there are other jobs at Mueller that Upton could have performed. However, the evidence shows that Upton worked at Mueller in four separate job capacities after the ankle surgery, and each job caused him to be in severe pain. Mueller offered no testimony showing what jobs could be performed by Mueller. In fact, Upton testified that he was told by a Mueller supervisor that the plant had no jobs for which he was qualified that he could perform sitting down. The evidence shows that Mueller had no job for Upton.

¶ 29. The proof is undisputed that Dr. Christopher did not release Upton to return to work when he assigned maximum medical improvement on July 2, 2001. Dr. Christopher specifically stated that Upton was not allowed to work because of recurrent muscle spasms. Upton attempted to perform lighter-duty work after his ankle surgery but could not perform any of the tasks assigned to him. Under these facts, this Court is unable to allow an employer to invoke a presumption that a claimant is able to work when the claimant fails to report to work.

WHETHER THE COMMISSION ERRED IN AWARDING BENEFITS BECAUSE UPTON FAILED TO MAKE A REASONABLE OR DILIGENT JOB SEARCH ATTEMPT

¶ 30. The Workers’ Compensation Commission awarded total disability benefits to Upton based on Upton’s work-related injuries to his ankle as well as his back. Injury to the back is not specifically scheduled by statute. If the injury a claimant suffers is not specifically scheduled by the workers’ compensation statute, the claimant’s disability is measured by a loss of wage-earning capacity. Georgia Pacific Corp. v. Taplin, 586 So.2d 823, 828 (Miss.1991). To establish a loss of wage-earning capacity, the injured worker bears the burden of showing that he has sought and has been unable to work in similar and other jobs. Id.

¶ 31. When the claimant has made a prima facie case that he was unable to find other employment, the burden shifts to the employer to show that the efforts were not reasonable or constituted a mere sham. Id. A determination of the reasonableness of the claimant’s efforts includes “consideration of job availability and economics in the community, the claimant’s skills and background, as well as the subject disability itself.” Id. A pri-ma facie case may be overcome by affirmative evidence that other jobs existed in the relevant job market for which the claimant was at least facially qualified and that the claimant made no legitimate efforts to pursue any such employment. McCray v. Key Constructors, Inc., 803 So.2d 1199, 1201 (¶ 11) (Miss.Ct.App.2000) (citing Hale v. Ruleville Health Care Center, 687 So.2d 1221, 1227 (Miss.1997)).

¶ 32. In the present case, Mueller claims that Upton failed to make a reasonable effort to find other employment. After Dr. Christopher placed him at maximum medical improvement on July 2, 2001, Upton applied for work at three places in Itawamba County near his residence, all on the same day, November 26, 2001. One week before the hearing, Upton applied for jobs at Key Staff Sources. At the hearing, Mueller’s vocational expert identified five immediate potential employment opportunities that fit within Upton’s vocational profile. Mueller argues that such evidence proves that Upton’s job-seeking efforts were a sham.

¶ 33. Mueller’s argument that Upton failed to make a diligent search for other employment is premised on the fact that Upton was released to resume employment on July 2, 2001. However, the record shows that Upton was never released to return to work on that date. Upton nevertheless applied for work at three businesses, and applied at Key Staff Sources but received no response. Mueller’s own expert admitted that he was unaware of Upton’s low intellectual functioning and that Upton would not be qualified for many of the jobs identified at the hearing in light of Upton’s limited intelligence. The administrative law judge and the Workers’ Compensation Commission were presented with substantial evidence that Upton performed a diligent job search, and the evidence of Upton’s vocational limitations as recognized by Killough and Cox demonstrated that there were no other jobs for Upton to pursue.

WHETHER THE WORKERS’ COMPENSATION ERRED IN GIVING THE OPINIONS OF DR. CHRISTOPHER MORE WEIGHT THAN THOSE OF DR. TYRER AND DR. MITIAS

¶ 34. Dr. Christopher treated Upton from February of 1997 to September of 2001, a period of four and a half years. Dr. Tyrer and Dr. Mitias both evaluated Upton one time. Nevertheless, Mueller argues that the opinions of Drs. Tyrer and Mitias should be given greater weight because of the doctors’ statements that Dr. Christopher’s medical opinions involved speculations. In addition, Dr. Tyrer and Dr. Mitias performed diagnostic tests that refuted Upton’s claims of a back injury, and Dr. Tyrer and Dr. Mitias concurred with each other.

¶ 35. The administrative law judge recognized that Dr. Christopher’s medical opinions contradicted the medical opinions of the other doctors. He resolved the conflict and assigned greater weight by noting that Dr. Christopher was Upton’s regular treating physician. The Workers’ Compensation Commission is entitled to favor the testimony of a treating physician over a physician who had seen the claimant only once. South Central Bell Telephone Co. v. Aden, 474 So.2d 584, 593 (Miss.1985).

¶ 36. Mueller argues that Aden is inapplicable to this case because Dr. Tyrer and Dr. Mitias performed diagnostic tests that indicated that Upton was being untruthful about his back injury. Mueller claims that Dr. Christopher’s opinions should be discounted and not be considered substantial evidence that Upton suffered a back injury because Dr. Christopher failed to perform these diagnostic tests. This argument ignores the fact that Dr. Christopher was able to observe first-hand Upton’s progressively worsening Achilles tendon and back condition that occurred over a four and a half year period. Dr. Christopher testified that Upton was having muscle spasms every time Upton came into his office.

WHETHER THE WORKERS’ COMPENSATION COMMISSION’S DETERMINATION OF PERMANENT AND TOTAL DISABILITY TO UPTON’S BACK WAS BASED UPON SUBSTANTIAL EVIDENCE

¶ 37. Mueller claims that Upton failed to prove that his back injuries were related to his work-related injury to his ankle. Upton presented his proof through Dr. Christopher’s depositions.- Dr. Christopher was asked how much of Úpton’s back pain was traumatic and how much was non-traumatic. He stated:

That is the big question.... By looking at the history and when you look at the earlier notes he doesn’t say a lot about his back, but everything was about his tendon. However when Upton got back on his feet and started to walk with weight on his ankle and weight on his foot, and he stressed the Achilles and he was going back to work, he started complaining of his back pain.

¶ 38. In Dr. Christopher’s March 23, 1999 deposition, he specifically and unequivocally connected Upton’s back problem to his injured ankle. He referred to a Toronto, Canada research report on problems people have with injured extremities. According to the report, when a person walks slightly unbalanced over time the body does not adjust and the person will have muscular spasms on the side of his back. By contrast, neither Dr. Tyrer nor Dr. Mitias addressed how Upton’s back pain originated. Although Mueller is correct that Dr. Christopher could not state with complete certainty that Upton’s back injury was related to his ankle injury, medical opinions do not have to be precise, complete, or unequivocal. Siemens Energy & Automation, Inc. v. Pickens, 732 So.2d 276, 286 (¶ 40). If any doubt exists regarding the sufficiency of medical evidence, the benefit of the doubt goes to the claimant. Id.

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

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

      . Upton was forty-nine years old at the time of the hearing.


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Charles Richard KEYS, Appellant v. Janet Lee Andries KEYS, Appellee.
    No. 2004-CA-01509-COA.
    Court of Appeals of Mississippi.
    Dec. 6, 2005.
    Rehearing Denied March 21, 2006.
    Certiorari Denied June 1, 2006.

      Steve Younger, attorney for appellant.
    Debra Lynn Allen, Jackson, attorney for appellee.
   IRVING, J.,

for the Court.

¶ 1. Janet Keys (Janet) applied for modification of her divorce settlement with Charles Richard Keys (Charles). The chancellor altered the original judgment of divorce, and ordered: (1) Charles to pay $4,148, representing one-half of the MPACT expenses for Shannon, the parties’ minor daughter; (2) Charles to pay for Shannon’s sorority expenses; (3) a TIGR account in Shannon’s name was an irrevocable gift to her and would not be used to reimburse Janet for Charles’s share of Shannon’s college expenses; and (4) custody of Shannon changed from Charles to Janet. The chancellor declined to hold Janet in contempt for failure to pay past-due child support and also declined to award Charles damages for abusive behavior on the part of Janet.

¶ 2. Feeling aggrieved, Charles appeals and argues that (1) the chancellor erred in ordering him to pay half the cost of Shannon’s MPACT tuition ($4,148), (2) the chancellor erred in holding that the TIGR funds were no longer to be used for educational purposes, (3) the chancellor erred in not finding Janet in contempt for failing to pay child support, (4) the chancellor erred in failing to award damages to Charles for alleged harassment by Janet, and (5) the chancellor erred in awarding custody to Janet and ordering Charles to pay child support to Janet. We find error and therefore reverse and remand for proceedings consistent with this opinion.

FACTS

¶ 3. Janet and Charles Richard Keys were married on June 9, 1979, and divorced on June 29, 1993, due to irreconcilable differences. During their marriage, they had two children, Carmen (born in 1981) and Shannon (born in 1984). Their 1993 judgment of divorce awarded custody of the minor children to Janet, with Charles being ordered to pay $850 in monthly child support ($425 for each child). Charles and Janet agreed to equally share the costs of a college education for each girl, including room, board, tuition, books, and supplies. Additionally, Charles was required to fund an account, in his or Janet’s name, in the sum of $12,057.99 “for the college educational expenses of said minor children, with any sums remaining in said account to be paid over equally to the children after they have graduated from college.... ” This amount was intended to be equal to the present value of two existing TIGR accounts (one for each girl), with all of the custodial accounts being used for the children’s educational expenses.

¶ 4. The judgment of divorce was modified on August 9, 2000, and the following changes were made: (1) Janet was to research the penalties for early withdrawal from the TIGR accounts; and (2) in the event that there was a penalty, the parties were to transfer funds from Shannon’s MPACT account to Carmen’s in order to pay for Carmen’s college education.

¶ 5. Another modification was made to the judgment of divorce on May 17, 2002, that (1) awarded custody of Shannon to Charles, (2) terminated Charles’s child support obligations to Janet for Shannon, (3) ordered Janet to pay Charles $225 per month as child support for Shannon, and (4) ordered Janet to deliver the TIGR accounts for both girls ($10,000 for Shannon and $11,000 for Carmen) to an accountant, Mitchell Blount, for safekeeping until the parties came to a mutual agreement regarding what to do with the accounts.

¶ 6. In October 2003, Janet filed a complaint asking for another modification of the judgment of divorce. This complaint asked that (1) Shannon’s custody be given back to Janet, (2) Janet no longer be required to pay Charles for child support, (3) Charles pay child support for Shannon to Janet, (4) Charles pay half of the cost of the three years of the MPACT that Janet purchased for Shannon, (5) Charles pay for all the costs of Shannon’s joining a sorority while in college, (6) Charles be held in contempt for failure to pay for half of some medical expenses incurred by Carmen, (7) Charles be held in contempt for reporting Janet to the Hinds County Department of Human Services child support collection unit for failure to pay child support, and (8) Shannon’s TIGR funds be deemed her personal property under the Uniform Gift to Minors Act, or, in the alternative, that the TIGR funds should be used to recompense Janet for purchasing three years of MPACT for Shannon.

¶ 7. In his response to Janet’s complaint for modification, Charles claimed that (1) Janet owed him six months of child support ($1,350), (2) Janet should be held in contempt for failing to pay court-ordered child support, and (3) Janet should pay Charles damages (both actual and punitive) for writing the initials “ESAD” on her correspondence with him.

¶ 8. The chancellor entered an order resolving these disputes on May 20, 2004. The chancellor’s order stated that (1) Shannon’s custody would be placed with Janet, because “the evidence shows that for purposes of a permanent residence she moved back in with [Janet] in October, 2003;” (2) Charles would now pay Janet child support for Shannon instead of Janet paying Charles; (3) under the Uniform Gift to Minors Act, Shannon’s TIGR account should be given to her as her personal property and managed by Charles until Shannon turned twenty-one, because “the failure of the parties to cooperate to manage these funds and actually use them for the minor children’s educational needs, and Carmen’s having had the advantage of these funds herself, constitute a significant material change in the circumstances which necessitate modifying the Final Judgment as it relates to the TIGR fund account;” (4) Charles must contribute to any sorority expenses that Shannon incurs while in college; (5) Charles must pay one-half of the MPACT purchased by Janet for Shannon ($4,148); (6) Charles was not in contempt; (7) Janet was required to pay child support to Charles for the months of July and August of 2003; (8) both Charles and Janet owed each other money for medical expenses, with a final calculation that Janet owed Charles $85; and (9) Charles was not entitled to child support for the time period from October 2003 to the present because “the amount of child support due during that period would have been unearned by Charles since Shannon did not live with him during that period.”

¶ 9. After the chancellor issued his decision, both Charles and Janet contested the ruling, although only Charles has appealed, presenting the issues which we stated in the beginning of this opinion.

STANDARD OF REVIEW

¶ 10. We employ a limited standard of review when reviewing the decision of a chancery court. Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997). We will not interfere with the findings of the chancellor unless he “was manifestly wrong, [his ruling was] clearly erroneous or a wrong legal standard was applied.” Id. (citing Carrow v. Carrow, 642 So.2d 901, 904 (Miss.1994)).

ANALYSIS AND DISCUSSION OF THE ISSUES

(1) Payment of MPACT tuition and TIGR accounts

¶ 11. In his first issue, Charles argues that he should not have been required to pay one-half of the MPACT tuition purchased by Janet. We also address his second issue regarding the TIGR accounts, since our resolution of his first issue depends on our finding regarding the second issue.

¶ 12. The original judgment of divorce specifically stated that Charles was to fund an investment account to be used to pay for the girls’ college education:

Upon the entry of a Final Judgment of Divorce, Husband shall promptly fund an investment account, established in the name of Husband and Wife, or survivor, for the benefit of the two (2) minor children of these parties, in the sum of 12,057.99, and subject to withdrawals only upon signature of both Husband and Wife, said custodial account being for the college educational expenses of said minor children, with any sums remaining in said account to be paid over equally to the children after they have graduated from college or reached their majority without continuing to pursue a college education, ivhichever first occurs. Said amount to be funded by Husband is equal to the present value of two (2) Tiger Accounts held for the benefit of said children, with all of said custodial accounts to be utilized for the same purpose as stated herein.

(emphasis added). No subsequent modification of the divorce order changed this original purpose of the TIGR accounts. The accounts were to be used for college, with any additional expenses paid for equally by Charles and Janet.

¶ 13. While we agree that Janet is entitled to compensation for half of the MPACT she purchased, we find that the chancellor erred in ordering this money to come from Charles. In accordance with the original judgment of divorce, the amount owed to Janet should come out of Shannon’s TIGR account, which was originally set up and funded by Charles for the sole purpose of covering Shannon’s educational expenses, “with any sums remaining” paid to Shannon after her educational expenses are paid. Janet may recover not only one-half of the cost of the MPACT tuition, but the full amount that she paid, since that amount should have originally come out of Shannon’s TIGR account. If the TIGR fund is for some reason inadequate to fully reimburse Janet, then Charles may be ordered to pay one-half of the deficiency.

¶ 14. In finding that the chancellor was in error in altering the initially ordered purpose of the TIGR accounts, we note that there appears to be some confusion in the chancellor’s order as to the original nature of the accounts. The May 2004 modification order states: “Per the Final Judgment of Divorce, [Charles] was required to ‘promptly fund an investment account, certificate of deposit, or other acceptable investment account ... for the benefit of the two minor children ... and to set up another account of equal value to the TIGR funds already in existence.’ ” We do not see where the original divorce order required Charles to set up two accounts. He was to fund one account, equal in value to the present value of the two existing TIGR accounts. The chancellor does go on to note that “these funds were supposed to be available and used for the higher education of the two minor children.” Despite acknowledging this, the chancellor held that the TIGR funds were to be given over to the girls because “the failure of the parties to cooperate to manage these funds and actually use them for the minor children’s educational needs, and Carmen’s having had the advantage of these funds herself, constitute a significant material change in the circumstances which necessitate modifying the Final Judgment as it relates to the TIGR fund account.”

¶ 15. Although it is true that Charles and Janet declined to withdraw money from the TIGR accounts previously because of the penalty attached to early withdrawal, that decision does not constitute a material change sufficient to alter the original purpose of the TIGR accounts as established by the original judgment of divorce. There is no longer any penalty for withdrawal, and any educational expenditures by Charles or Janet should be reimbursed from the girls’ TIGR accounts. The availability of these funds to Carmen also does not constitute a material change in circumstances such that the original judgment of divorce order should be modified. Carmen’s access to her own TIGR accounts does not necessitate a finding that Charles and Janet should therefore be forced to pay for all of Shannon’s educational expenses, when their original judgment of divorce clearly provided that the children’s college expenses would be paid from the TIGR accounts.

¶ 16. Although there seems to be some dispute between the parties as to whether the TIGR accounts were subject to the older Mississippi Uniform Gifts to Minors Act, Mississippi Code Annotated section 91-19-1 as amended, or the newer Mississippi Uniform Transfers to Minors Act, Mississippi Code Annotated section 91-20-1 as amended, we find that we need not address which statute is controlling because either one would have allowed the withdrawal of funds for educational purposes. According to the Mississippi Supreme Court:

Clearly, under the Mississippi Uniform Transfers to Minors Act, as well as its predecessor, the Mississippi Uniform Gifts to Minors Act, [the child] may reach the assets of her account through her mother ... who is the custodian of the accounts. As custodian, [the mother] has access to the funds for [the child’s] use, and is able to withdraw them at will on behalf of [the child] for educational expenses or for any other purpose which [the mother], as custodian, deems wise and necessary.

Saliba v. Saliba, 753 So.2d 1095, 1098-99 (¶ 13) (Miss.2000) (citations omitted). We note that the holding in Saliba was that the child could not be forced to pay for her college education, but we find that Saliba is distinguishable from the case sub judice. In Saliba, the original judgment of divorce did not specify how the college would be paid, and instead dictated that a court would decide later. Id. at 1097 (¶ 7). Later, the parents asked that the child be forced to pay for college with her own funds (which were extensive), and the court ruled that the child was not required to pay for college. Id. at 1099 (¶ 13). Saliba is factually distinguishable from the case at bar, where the child’s account was specifically set up to pay for her later educational expenses. There was no question as to where the money for college was intended to come from in the original judgment of divorce.

¶ 17. Therefore, we hold that the TIGR funds should be used to pay for Shannon’s college expenses, and should not be given to Shannon until those expenses are paid. Any remaining funds will, of course, go to her. The judgment of the chancellor ordering that the TIGR funds be given over to Shannon and that Charles be forced to pay for one-half of the MPACT purchased by Janet is hereby reversed and remanded.

(2) Contempt and failure to pay child support

¶ 18. Although Janet should have been ordered to all pay past-due child support, we decline to find the chancellor in error for not holding her in contempt for failing to do so. When reviewing a lower court’s decision regarding whether to hold a party in contempt, the supreme court has held that: “contempt matters are committed to the substantial discretion of the trial court which, by institutional circumstance and both temporal and visual proximity, is infinitely more competent to decide the matter than are we.” Morreale v. Morreale, 646 So.2d 1264, 1267 (Miss.1994) (quoting Cumberland v. Cumberland, 564 So.2d 839, 845 (Miss.1990)). The chancellor stated that Janet should not be held in contempt because “[Janet] thought that she did not owe such support for the period since Shannon came to live with her at that point and she was relying upon the advice of counsel. The Court accepts that defense.... ” It was well within the chancellor’s discretion to accept Janet’s defense. Therefore, we affirm the chancellor on this issue.

(3) Damages and harassment

¶ 19. The specific behavior that Charles complained of was Janet’s practice of writing the initials ESAD (“Eat Sh*t And Die”) on all the correspondence that she sent to him. While we do not condone Janet’s actions, we also find no legal basis entitling Charles to damages as a result of Janet’s behavior.

¶ 20. Punitive damages are a proper remedy only if a plaintiff is able to show “a willful or malicious wrong or the gross, reckless disregard for the rights of others.” Boling v. A-1 Detective & Patrol Service, Inc., 659 So.2d 586, 588 (Miss.1995) (quoting Valley Forge Insurance Co. v. Strickland, 620 So.2d 535, 540 (Miss.1993)). Punitive damages “are intended ‘as an example and warning to others .... ’ ” Id. at 589 (quoting Beta Beta Chapter of Beta Theta Pi Fraternity v. May, 611 So.2d 889, 894 (Miss.1992)). We fail to see how Janet’s behavior rose to the level of a “malicious wrong” or “gross, reckless disregard” for Charles’s rights. Accordingly, we find that the chancellor did not err in denying damages to Charles for Janet’s behavior.

(I) Custody and child support

¶ 21. There are two findings that must be made in order for child custody to be altered: first, there must be proof that there is a material change in circumstances that adversely affects the welfare of the child, and second, a change in custody must be in the best interests of the child. Smith v. Jones, 654 So.2d 480, 486 (Miss.1995). The chancellor was in error when he determined that custody should be awarded back to Janet simply because Shannon visits her mother around once a month and has moved her belongings into Janet’s house. This does not constitute a material change in circumstances that adversely affects Shannon’s welfare. Shannon is away at college and does not reside with either of her parents a majority of her time. In fact, the evidence introduced below indicated that it is Charles who provides most of the support for Shannon while she is away at school. As such, we find that custody should have remained with Charles and that Janet should have been ordered to pay both future and past-due child support. Therefore, we reverse and remand on this issue.

¶ 22. THE JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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

      . In the judgment of divorce, the accounts are referred to as "Tiger” accounts. However, the parties, in their appellate briefs, refer to them as "TIGR” accounts. We have chosen to use the spelling utilized by the parties.


author: LEE, P.J.,

text:
    R.W. AIKEN INSURANCE AGENCY, INC., Appellant v. SEVENOAKS CAPITOL CORPORATION, Appellee.
    No. 2004-CA-01854-COA.
    Court of Appeals of Mississippi.
    Feb. 7, 2006.
    Rehearing Denied May 30, 2006.

      John T. Wakeland, Greenwood, attorney for appellant.
    Betty A. Mallett, Amy Kebert Elder, attorneys for appellee.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. In 1999, the R.W. Aiken Insurance Agency, Inc., filed suit against S & R Transportation for S & R’s failure to pay its insurance premiums. Aiken secured a default judgment against S & R on February 22, 2000, in the amount of $104,730.47. Aiken then filed a suggestion for writ of garnishment against SevenOaks Capitol Corporation on March 31, 2000. The circuit clerk issued a writ of garnishment which was served upon SevenOaks on April 6. Six days later, SevenOaks filed its answer, denying that it was indebted to S & R. In its answer, SevenOaks stated that it had purchased accounts receivable from S & R via an agreement that SevenOaks would tender only a portion of the purchase price, reserving a fraction of the price until the accounts were successfully collected. The agreement provided full recourse against S & R in the event that SevenOaks was unable to collect on any of the purchased accounts. Additionally, SevenOaks maintained discretion as to which accounts it would purchase.

¶ 2. S & R filed for bankruptcy on September 19, 2000, and Aiken filed a claim as an unsecured creditor. During discovery in the bankruptcy proceeding, Aiken ascertained that from April 6, 2000, to April 12, 2000, SevenOaks purchased accounts from S & R for $950,000. At no time did Seven-Oaks amend its answer to the garnishment. On October 2, 2003, the bankruptcy court lifted the Section 362 automatic stay regarding SevenOaks and Aiken, allowing them to proceed with their respective claims against each other in state court. On June 21, 2004, Aiken filed a motion to contest and to strike SevenOaks’s answer. The garnishment was dismissed on July 1, 2004.

¶ 3. Aiken appeals to this Court, asserting the following errors: (1) the trial court erred in denying the motion to contest and strike SevenOaks’s answer; (2) the trial court erred in not sanctioning SevenOaks; (3) the trial court erred in its interpretation of Mississippi Code Annotated Section 11-35-45 and Rule 6(a) of the Mississippi Rules of Civil Procedure; and (4) the trial court’s decision is against the overwhelming weight of the evidence.

¶ 4. Because issues I and III are substantively similar, we will analyze those issues together. Additionally, because issues II and IV are both procedurally barred for the same reason, we will discuss those issues simultaneously.

¶ 5. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 6. This Court reviews questions of law, which include summary judgments and motions to dismiss, de novo. City of Jackson v. Perry, 764 So.2d 373, 376(¶ 9) (Miss.2000) (citing Cooper v. Crabb, 587 So.2d 236, 239 (Miss.1991)). The decision to grant or deny a motion to dismiss is in the discretion of the trial court and will not be reversed unless that discretion is abused. Roebuck v. City of Aberdeen, 671 So.2d 49, 51 (Miss.1996).

I. DID THE TRIAL COURT ERR IN DENYING AIKEN’S MOTION TO CONTEST AND TO STRIKE SEVEN OAKS’S ANSWER?

III. DID THE TRIAL COURT ERR IN ITS APPLICATION OF MISSISSIPPI CODE ANNOTATED SECTION 11-35^45 AND RULE 6(c)?

¶ 7. In his argument that the circuit court improperly denied its motion regarding SevenOaks’s answer, Aiken posits that Mississippi Code Annotated Section 11-35^45 (Rev. 2004) was “effectively super-ceded” by the adoption of Rule 6(c) of the Mississippi Rules of Civil Procedure. Section 11-35-45 provides, in pertinent part, as follows:

If the plaintiff believe [sic] that the answer of the garnishee is untrue, or that it is not a full discovery as to the debt due by the garnishee, or as to the property in his possession belonging to the defendant, he shall, at the term when the answer is filed, unless the court grant further time, contest the same, in writing, specifying in what particular he believes the answer to be incorrect....

¶ 8. The supreme court has held that Mississippi Code Annotated Sections 11-35-1-61 (Rev.2004) provides the procedural rules for a party who seeks to enforce or assail the enforcement of a garnishment. First Miss. Nat. Bank v. KLH Industries, Inc., 457 So.2d 1333, 1338 (Miss.1984). The supreme court has said that the statutes were supplemented by the Mississippi Rules of Civil Procedure “as may be found not inconsistent with those statutes.” Id.

¶ 9. Aiken argues that pursuant to Rule 6(c) of the Mississippi Rules of Civil Procedure, he was not required to contest Sev-enOaks’s answer within the term of court in which it was filed. Rule 6(c) provides as follows:

(C) Unaffected by Expiration of Term. The period of time provided for the doing of any act or the taking of any proceeding is not affected or limited by the continued existence or expiration of a term of court. The existence or expiration of a term of court in no way affects the power of a court to do any act or take any proceeding in a civil action consistent with these rules.

¶ 10. KLH Industries puts this issue to rest. In discussing Rule 69(a) regarding enforcement of judgments, the supreme court opined:

According to Rule 69(a), the procedure required by the Rules themselves by which the holder of a judgment seeks to enforce that right and to secure that remedy, ‘shall be as -provided by statute [the garnishment statutes].’ [Emphasis added]. The Rules, therefore, defer to the garnishment statutes with regard to procedures to be followed in a garnishment action.

KLH Industries, Inc., 457 So.2d at 1337 (quoting M.R.C.P. 69(a)). Where the Mississippi Rules of Civil Procedure conflict with the garnishment procedure mandated by statute, the statute controls. Federal Sav. & Loan Ins. Corp. v. S. & W. Const. Co. of Tenn., 475 So.2d 145, 147 (Miss.1985). Furthermore, M.R.C.P. 6(c) does not abolish court terms, it “merely provides greater flexibility to the courts in attending the myriad functions they must perform, many of which were heretofore possible only during term time.” MRCP 6(c) cmt.

¶ 11. Aiken’s argument that he did not have to comply with Section 11-35-45 is without merit. Without an extension of time from the trial court, under Section 11-35-45 Aiken should have filed his contest or objection by May 1, 2000. Aiken’s June 2004 filing was too late.

¶ 12. Additionally, in a garnishment proceeding, the burden is on the garnishor to prove that the garnishee is liable to the judgment creditor. Grenada Bank v. Seligman, 164 Miss. 168, 173, 143 So. 474, 475 (1932). If the garnishor does not contest the garnishee’s answer, the answer is taken as conclusive. Id. Thus, in failing to contest the answer, Aiken effectively conceded that SevenOaks did not owe S & R.

¶ 13. Furthermore, from the record before this Court, it is apparent that SevenOaks did not owe S & R anything which was subject to garnishment. At the time the garnishment was served, SevenOaks held $67,315.85 in reserve, payment of which was contingent on Sev-enOaks’s purchase of accounts and its successful collection of the accounts. Seven-Oaks would only owe S & R the money if the accounts were purchased and if the accounts were successfully collected. “In general, a debt or claim which is uncertain or contingent, in the sense that it may never become due and payable, is not gar-nishable.” American Nat. Ins. Co. v. U.S. Fid. & Guar. Co., 215 So.2d 245, 248 (Miss.1968).

¶ 14. The trial court properly denied Aiken’s contest and appropriately dismissed the garnishment. These arguments are without merit.

II. DID THE TRIAL COURT ERR IN FAILING TO GRANT SANCTIONS?

IV. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 15. Aiken lists issues number II and IV in its statement of issues but fails to discuss the arguments in a substantive manner in its brief. Furthermore, Aiken never sought sanctions in the trial court, and Aiken never filed anything with the court indicating that its “verdict” was against the weight of the evidence. It is well-settled law in Mississippi that a trial judge will not be found in error for an issue that was not presented to him for a decision. Jones v. State, 606 So.2d 1051, 1058 (Miss.1992). As such, these issues are procedurally barred from our review.

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

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


author: SOUTHWICK, J.,

text:
    Lavon Darall (Darrall) SMALLWOOD a/k/a Lavon Darell Smallwood, Appellant, v. STATE of Mississippi, Appellee.
    No. 2004-KA-01603-COA.
    Court of Appeals of Mississippi.
    May 23, 2006.

      Leslie D. Roussell, Laurel, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK and BARNES, JJ.
   SOUTHWICK, J.,

for the Court.

¶ 1. Lavon Smallwood was convicted of burglary and acquitted of armed robbery by a Wayne County Circuit Court jury. He seeks reversal here due to the doctrine of merger, a double jeopardy violation, denial of his directed verdict and post-trial motions, and a disproportionate sentence. We disagree and affirm.

FACTS

¶ 2. On December 12, 2002, at 6:00 p.m., Smallwood went to the residence of Douglas O’Harroll and knocked on the door. O’Harroll’s sixteen-year-old son asked who was knocking. Smallwood replied by saying, “Meetchie,” who was a friend and neighbor of the O’Harroll’s. The son unlocked the door. When he noticed that it was not the family friend, he tried to close the door. Smallwood, by force, gained entry to the house and put a gun to the senior O’Harroll’s head, demanding money. O’Harroll surrendered cash and Small-wood departed.

DISCUSSION

ISSUE 1: Merger

¶ 3. Smallwood argues that the trial court committed reversible error by failing to grant him a directed verdict as to the burglary charge based on the doctrine of merger. Smallwood argues that it was impossible to commit the armed robbery without first committing the burglary. On this basis, he alleges that the two offenses merged and he could not be charged with both.

¶ 4. The Supreme Court has rejected the doctrine that if one crime is an integral part of another, that the two merge and cannot be charged separately.

We decline to adopt the merger doctrine and hold that under our felony-murder statute, the underlying felony does not merge into the murder. Our statutory provisions dealing with murder and the particular felony, in this case, burglary, are intended to protect different societal interests. When the appellant entered the home of [a person] with the intent to commit a crime therein, i.e., to kill [the victim], the burglary was complete and the subsequent killing of [the victim] elevated the crime of murder to that of capital murder. We find the appellant’s argument unpersuasive.

Smith v. State, 499 So.2d 750, 754 (Miss.1986).

¶ 5. We find no basis on which to conclude that this holding has been undermined by any later ruling by this state’s highest court or by the United States Supreme Court. Merger is rejected.

ISSUE 2: Double Jeopardy

¶ 6. Smallwood argues that being tried for the crime of burglary and armed robbery under these facts is a violation of double jeopardy. Double jeopardy protection may be invoked when a defendant was previously tried on the merits and either convicted or acquitted of the same crime currently being charged. Lightsey v. State, 493 So.2d 375, 377-78 (Miss.1986). Smallwood was not previously tried for either of the present charges. Double jeopardy protection may also be invoked when a person otherwise would be punished multiple times for the same crime. Greenwood v. State, 744 So.2d 767, 770 (Miss.1999). Offenses that qualify as the same crime are determined by comparing the elements of each. Ramage v. State, 914 So.2d 274, 276 (Miss.Ct.App.2005) (citing Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)).

¶ 7. The offense of armed robbery contains the elements of exhibiting a deadly weapon and putting the victim in fear. Miss.Code Ann. § 97-3-79 (Rev.2000). Burglary of a dwelling does not contain these elements. Further, burglary includes elements not found in armed robbery such as breaking and entering. Miss. Code Ann. § 97-17-23 (Rev.2000). Small-wood was charged with these two distinct crimes and was only tried at one trial for each.

ISSUE S: Motions for Directed Verdict and for Judgment Notwithstanding the Verdict

¶ 8. Smallwood argues that the trial court erred in denying a directed verdict at the close of the prosecution’s case-in-chief and also in not granting a judgment notwithstanding the verdict. Smallwood claims that the prosecution failed to prove that he broke into the dwelling. A breaking is required for the crime of burglary. Miss.Code Ann. § 97-17-23 (Rev.2000). Smallwood used force to enter the residence by pushing the door open when O’Harroll’s son tried to close the door. The element of a “breaking” also may be constructive if entry is gained by use of deceit or trickery. Templeton v. State, 725 So.2d 764, 766 (Miss.1998). Evidence was presented to support a finding of constructive breaking in that Smallwood was deceptive in using the name of O’Har-roll’s friend for the purpose of gaining entry to the house.

¶ 9. Smallwood also argues that he should have been granted a judgment of acquittal on the burglary because he was acquitted of the armed robbery charge. He argues that the burglary required an intent to commit some crime in the dwelling. That intent was in his view negated by the fact that he was acquitted of armed robbery. The difficulty with this argument is that what was needed for the burglary was that Smallwood had the intent to commit the crime when he entered. If the jurors found that Smallwood entered with the intent but ultimately did not commit the robbery, there is complete logic to the two verdicts. Regardless, inconsistency in a verdict is not grounds for overturning a conviction. Holloman v. State, 656 So.2d 1134, 1141 (Miss.1995). If there was sufficient evidence to convict on the burglary, Smallwood cannot set aside that verdict simply because he was acquitted of some other charge, no matter how closely related.

ISSUE I: Disproportionate Sentence

¶ 10. Smallwood argues that he is less culpable than his two co-defendants but received the harshest sentence. A co-defendant who pled guilty to burglary and armed robbery received a twenty year sentence, fourteen years of which were suspended. The other co-defendant went to trial, was found guilty of burglary and armed robbery, and then reached a bargain with the prosecutor for the same sentence as for the individual who pled guilty. Smallwood was found guilty only of burglary and received a twenty-five year sentence of which ten years were suspended. He also was fined $10,000.

¶ 11. Smallwood argues that he is entitled to the benefit of the proportionality analysis formulated by the United States Supreme Court. Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). This analysis is applied only in rare cases where “a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.” Ewing v. California, 538 U.S. 11, 30, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (quoting Harmelin v. Michigan, 501 U.S. 957, 1005, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part and concurring in judgment)). In Mississippi, sentences that do not exceed statutory limitations will generally be upheld. Tate v. State, 912 So.2d 919, 933 (Miss.2005). The Mississippi appellate courts recognize the broad authority of the legislature and trial courts in the area of sentencing for crimes and will not engage in an extended proportionality analysis where the sentence is not manifestly disproportionate. Id. A twenty-five year sentence has been held not to be grossly disproportionate for the crime of burglary. Grimes v. State, 909 So.2d 1184, 1188 (Miss.Ct.App.2005). Smallwood was convicted for burglary and received a sentence that is less than the maximum for that offense. The analysis for proportionality is not required for the sentence Smallwood received.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF WAYNE COUNTY OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH TEN YEARS SUSPENDED, FIVE YEARS OF SUPERVISED PROBATION AND FINE OF $10,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WAYNE COUNTY.

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


text:
    Larry Joe MELTON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-CP-01127-COA.
    Court of Appeals of Mississippi.
    May 23, 2006.

      Larry Joe Melton, appellant, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. On April 29, 2003, the Circuit Court of Calhoun County accepted Larry Joe Melton’s guilty plea to one count of aggravated domestic violence and sentenced Melton to fifteen years in the custody of the Mississippi Department of Corrections. The court sentenced Melton to time served, suspended the remainder of the fifteen year period, and placed Melton on five years’ post-release supervision. On July 12, 2004, Melton violated the terms of his post-release supervision. Subsequently, the court revoked a portion of his suspended sentence and ordered him to serve ten years of his original term with five years to remain suspended.

¶ 2. On March 31, 2005, Melton filed a motion for post-conviction relief (PCR), which was dismissed as time-barred. Melton filed a pro se appeal. He argues (1) that his PCR was not time-barred and, therefore, the court erred by failing to address the PCR on the merits; (2) that his indictment was defective because the victim’s name was inaccurate; and (3) that, when his probation was revoked, the circuit court failed to give him credit for time served. Melton requests that this Court reverse and remand this case for an evi-dentiary hearing.

¶ 3. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 4. The trial court may summarily dismiss a PCR “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief....” Miss.Code Ann. § 99-39-11(2) (Rev.2000). We will affirm the lower court’s summary dismissal of a PCR if, after reviewing the PCR de novo, we conclude that the petitioner has failed to “demonstrate ‘a claim proeedurally alive “substantially] showing denial of a state or federal right....”’” Young v. State, 731 So.2d 1120, 1122(¶ 9) (Miss.1999) (quoting Myers v. State, 583 So.2d 174, 176 (Miss.1991)).

LAW AND ANALYSIS

I. DID MELTON TIMELY FILE HIS NOTICE OF APPEAL?

¶ 5. As a threshold matter, we address this Court’s jurisdiction over this appeal. The circuit court dismissed Melton’s PCR on April 28, 2005. Melton’s notice of appeal, dated May 10, 2005, was not received and filed by the clerk of the Circuit Court of Calhoun County until June 7, 2005. The State argues that this Court lacks jurisdiction to review this appeal because Melton’s notice of appeal was filed outside the thirty-day window provided by Mississippi Rule of Appellate Procedure 4(a).

¶ 6. Rule 4(a) states that the notice of appeal “shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.” Rule 2(a) provides for our mandatory dismissal of an appeal if the notice of appeal was not timely filed in accordance with Rule 4. Melton addresses the timeliness of his notice of appeal in his reply brief. He contends that he complied with Rule 4(a) to the best of his ability and that his appeal was not timely filed due to the vagaries of the prison mailing system. Melton requests that this Court apply the prison mailbox rule to this appeal.

¶ 7. Under the prison mailbox rule, a prisoner’s motion for post-conviction relief is delivered for filing on the date that the prisoner submitted the papers to prison authorities for mailing. Sykes v. State, 757 So.2d 997, 1000-1(¶ 14) (Miss.2000). The prison mailbox rule applies to appeals from the denial of post-conviction relief. Gaston v. State, 817 So.2d 613, 616(¶ 8) (Miss.Ct.App.2002). Therefore, a prisoner’s delivery of a notice of appeal to prison authorities for mailing within thirty days after the entry of the judgment or order appealed from effects a timely filing under Rule 4(a). Competent proof of the date of mailing may consist of a prison mail log or other means of record keeping which prison authorities find expeditious, however, “an inmate’s certificate of service will not suffice as proof.” Sykes, 757 So.2d at 1001(¶ 14).

¶ 8. In the instant case, there is no proof of the date on which Melton delivered the notice of appeal to prison authorities for mailing. However, the State bears the burden of proof on the issue of timeliness because the State is the party moving for dismissal of this appeal. Gaston, 817 So.2d at 616(¶ 6). The State provided no evidence of the sort contemplated by Sykes to show that Melton failed to deliver his notice of appeal to prison authorities for mailing within the thirty days provided by Rule 4(a). See id. Melton’s notice of appeal was filed eight days after the expiration of the thirty day period, and it is conceivable that he delivered it to the prison authorities for mailing within the thirty day period. Therefore, in absence of proof to the contrary, we hold that Melton timely perfected this appeal. See id.

II.DID THE TRIAL COURT ERR IN DISMISSING MELTON’S PCR AS TIME-BARRED?

¶ 9. The trial court dismissed Melton’s PCR as time-barred. Mississippi Code Annotated section 99-39-5(2) (Supp. 2005) provides that, for a guilty plea, a motion for post-conviction relief must be made within three years after the entry of the judgment of conviction.. Melton’s judgment of conviction was entered on April 29, 2003. He filed his PCR on March 31, 2005. Melton filed his PCR approximately two years after the entry of the judgment of conviction and, therefore, it was timely. Melton’s PCR was not barred by the three-year statute of limitations and the trial court erred by dismissing the PCR as such.

¶ 10. Concluding that Melton’s PCR was not subject to the time bar, we examine the merits of his claims. “On appeal, we will affirm a decision of the circuit court where the right result is reached even though we may disagree with the reason for that result.” Puckett v. Stuckey, 633 So.2d 978, 980 (Miss.1993). From our review of Melton’s appellate issues, we find that the trial court correctly dismissed Melton’s PCR without an evidentiary hearing because the PCR plainly did not entitle Melton to any relief.

III. WAS MELTON’S INDICTMENT DEFECTIVE FOR FAILURE TO CORRECTLY NAME THE VICTIM?

¶ 11. Melton’s indictment charged him with committing aggravated domestic assault on his father. Melton argues that the indictment was fatally defective because his father’s name was inaccurate. Melton points out that the indictment named his father in two places, first identifying him as Larry Melton, Jr. and then identifying him as Ricky Melton. Melton contends that both these names were inaccurate; his father’s name is Larry Melton.

¶ 12. A valid guilty plea waives all technical and non-jurisdictional defects in an indictment. Brooks v. State, 573 So.2d 1350, 1355 (Miss.1990). We have previously held that the indictment’s failure to correctly name the victim is a technical and non-jurisdictional defect waived by the defendant’s guilty plea. Ivy v. State, 792 So.2d 319, 321(¶ 5) (Miss.Ct.App.2001). This issue is without merit.

IV. WHEN MELTON’S PROBATION WAS REVOKED, WAS HE DEPRIVED OF CREDIT FOR TIME SERVED?

¶ 13. Melton’s original judgment of sentence granted him credit for time served. Melton argues that, when his suspended sentence and post-release supervision were revoked, the trial court ordered him to serve ten full years without giving him credit toward the time he had served awaiting the plea hearing. Our review of the relevant documentation indicates that the trial court entered two orders pertinent to the revocation. On July 28, 2004, the court entered an order revoking Melton’s post-release supervision. On August 10, 2004, the court entered a “Judgement of Sentence Posh-Release Supervision” that re-imposed Melton’s fifteen year sentence, with ten years to serve and five years suspended on post-release supervision. This order expressly recognized that Melton’s sentence included credit for time served.

¶ 14. This Court has held that “a post-conviction relief pleading is not the proper means to calculate and receive credit for ... time served.” Gable v. State, 919 So.2d 1075, 1077 (¶¶ 6-8) (Miss.Ct.App.2005) (quoting Murphy v. State, 800 So.2d 525, 527-28(¶ 10) (Miss.Ct.App.2001)). If Melton is aggrieved by the calculation of credit for time served, he should send a request to the proper authorities within the Mississippi Department of Corrections administrative system. Id. If Melton is denied credit for time served, he may then seek redress from the courts. Id. This issue is not a proper subject for a motion for post-conviction relief. Id.

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

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


text:
    Robert L. BEYERS, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00835-COA.
    Court of Appeals of Mississippi.
    May 23, 2006.

      Wren Carroll Way, Vicksburg, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On February 24, 2004, a jury in the Warren County Circuit Court found Robert L. Beyers guilty of aggravated assault. Beyers was subsequently sentenced to eight years with ninety days to serve in the custody of the Mississippi Department of Corrections, the remainder suspended and five years’ post-release supervision. Beyers was also ordered to pay restitution and fees totaling $12,179.62.

¶2. Beyers filed a motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court denied the motion on April 16, 2004. Aggrieved, Beyers now appeals to this Court asserting the following issues: (1) the trial court erred in not instructing the jury as to the difference between the terms “serious bodily injury” and “bodily injury”; (2) the trial court erred in granting the State’s jury instruction S-1A; and (3) the State failed to prove that Beyers did not act in self-defense.

FACTS

¶ 3. On the evening of June 18, 2002, Joseph Foster was in his mobile home when he heard something hitting his trailer. Foster’s daughter, Gina, told him that someone was shooting a gun and the bullets were hitting the trailer. After the shots subsided, Foster went to investigate and walked up the hill to Beyers’s trailer where he found Beyers and Foster’s son, Joey. Both Joey and Beyers were shooting guns and Beyers continued to shoot his gun after Foster asked him to stop. Bey-ers responded that Foster had no right to give him orders on his own property.

¶ 4. Beyers and Foster continued to argue until Foster left with Gina and Joey to call the police. Once Foster turned to leave, Beyers called him back and subsequently struck Foster in the head with the butt of his gun. Foster went to the hospital for treatment and, later, to both a dentist and an oral surgeon to fix the damage to his mouth.

¶ 5. After hearing both versions of the altercation and further investigation by the Warren County Sheriffs Department, the District Attorney’s office decided to charge Beyers with aggravated assault.

¶ 6. Finding no error, we affirm.

DISCUSSION OF ISSUES

I. DID THE TRIAL COURT ERR IN INSTRUCTING THE JURY AS TO THE DIFFERENCE BETWEEN THE TERMS “SERIOUS BODILY INJURY” AND “BODILY INJURY”?

¶ 7. In his first issue on appeal, Beyers argues that Foster’s injury was not likely to produce serious bodily harm; thus, the jury should have been instructed as to the proper definition of the term “serious bodily injury” as stated in the indictment. Beyers contends that “serious bodily injury” is a necessary element distinguishing aggravated assault from the lesser charge of simple assault and should be proven beyond a reasonable doubt.

¶ 8. However, both this Court and the supreme court “have held that when an individual is charged pursuant to Mississippi Code Annotated [Section] 97-3-7(2)(b), the State need not prove the victim suffered ‘serious’ bodily injury.” Jenkins v. State, 913 So.2d 1044, 1048 (¶ 13) (Miss.Ct.App.2005); see also Jackson v. State, 594 So.2d 20, 24 (Miss.1992). Section 97-3-7(2)(b) requires that the injurious action must have been likely to cause such a result. We find no error here.

II. DID THE TRIAL COURT ERR IN GRANTING THE STATE’S JURY INSTRUCTION S-1A?

¶ 9. In his second issue, Beyers contends that the trial court erred in granting the State’s jury instruction S-1A. Beyers basically argues the same as he did in the first issue, namely that there was no evidence that the assault caused injuries resulting in serious bodily injury or that might result in death. We have already found this issue to be without merit.

¶ 10. Beyers also implies that the butt of a gun is not a deadly weapon. However, the supreme court has held that it is within the province of the jury to determine whether the use of a gun, used either as a bludgeoning instrument or for its designed purpose, makes it a deadly weapon under Section 97 — 3—7(2)(b). Griffin v. State, 540 So.2d 17, 19 (Miss.1989); see also Jenkins, 913 So.2d at 1049 (¶ 16); Walls v. State, 759 So.2d 483, 487 (¶ 11) (Miss.Ct.App.2000).

III. DID THE STATE FAIL TO PROVE THAT BEYERS DID NOT ACT IN SELF-DEFENSE?

¶ 11. In his last issue, Beyers argues that the State failed to prove that he did not act in self-defense. Beyers contends that he defended himself in a reasonable manner given the circumstances surrounding the incident. Beyers states that Joey was standing behind him and was holding a gun. Beyers further claims that his reaction was to get Foster out of his way before facing Joey. However, according to the testimony of Foster, Joey and Gina, Joey had placed his rifle down prior to the altercation. There was also no testimony to support Beyers’s contention that Foster was placing Beyers at risk of injury. It is within the jury’s province to “consider all the evidence, including matters presented that tend to impeach a witness’s credibility, and then to decide what weight and worth to give to any particular witness’s testimony. Windham v. State, 800 So.2d 1257, 1263 (¶ 18) (Miss.Ct.App.2001).

¶ 12. Furthermore, the aggravated assault statute does not contain any language wherein the State must prove that Beyers did not act in self-defense.

¶ 13. Interestingly, in his brief, Beyers states, “He did not shoot Foster, as well he could, nor did he turn around and shoot Joey, as he could have.” We decline to take this opportunity to commend Beyers for not shooting Foster or Joey. We find no merit to this issue.

¶ 14. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF EIGHT YEARS, WITH NINETY DAYS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, THE REMAINDER SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION, PAY $1000 FINE, PAY RESTITUTION IN THE AMOUNT OF $2,180.01 TO THE VICTIM, AND PAY $10,904.62 TO THE VICTIMS COMPENSATION FUND, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. SOUTHWICK, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.


text:
    Edgar MOSLEY a/k/a Edgar Charles Mosley, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-KA-00696-COA.
    Court of Appeals of Mississippi.
    May 23, 2006.

      Aelicia L. Thomas, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK and BARNES, JJ.
   SOUTHWICK, J.,

for the Court.

¶ 1. Edgar Mosley was convicted after a jury trial for possession of cocaine while also in possession of a firearm and for possession of a firearm by a convicted felon. On appeal he solely challenges the evidence. There was adequate evidence for the convictions. However, because of the novelty of the application, we examine for potential plain error the manner in which three different statutory enhancements were used in sentencing. We affirm in all respects.

FACTS

¶ 2. During an investigation, Indianola police gave a confidential informant twenty dollars to attempt to buy drugs at Edgar Mosley’s house. Officers watched from a car parked across the street as the informant entered and sometime later exited the home. The informant reunited- with the officers and handed them a substance he had acquired in the residence. The substance was found to be cocaine. There is no evidence that Mosley actually sold the drug to the informant. The officers kept the residence under surveillance for two more days, during which time people went in and out of the house “continuously.”

¶ 3. Approximately two days after the informant’s purchase and after securing a search warrant, officers at 6:00 a.m. on March 15, 2004, entered Mosley’s home and found him and his fiancee asleep. They immediately placed the two into custody and began a search of the entire house. The search revealed a handgun lying on a table next to a bed. An officer reached into a pillowcase and found a clear vial containing a substance that was later tested and found to be cocaine. In the pillow, the officer also found approximately $1,200 in cash. There was evidence that the bed in and around which the weapon, money and vial of cocaine were found was used by Mosley.

¶ 4. The officers seized the gun, the drugs, and utility bills bearing Mosley’s name and the residential address. One officer testified that the utility bills were seized to show ownership of the home. When the search was complete, the officers took Mosley to the police station. "While there, an officer informed Mosley of his relevant constitutional rights.

¶ 5. During the booking process, Mosley began to act strangely, mentioning to the officers that he was a professional singer and that the police were conspiring to “take his songs from him.” Mosley then began to sing in the police station. During his singing, Mosley told officers “I’m not a bad guy. Just got to do what I got to do to pay my bills.” Officers testified that Mosley did not appear to be under the influence of drugs or alcohol at the time. Mosley apparently made the statement on his own volition and the officer never asked him what he meant.

¶ 6. Mosley testified that he was a cocaine user, that he and his fiancee were using the cocaine found in the pillowcase, and that the cocaine belonged to them. Mosley said that he would purchase cigars and split them in half with a razor blade and remove its contents. He would replace the contents with marijuana laced with cocaine. Mosley also testified that the money found was in fact his, the result of a tax refund he had recently received. Mosley testified that people frequented his house because it was a “crack house” and that people came to use it to smoke crack in exchange for their giving him drugs. Mosley said that the gun was actually his fiancee’s, which she needed for protection because she lived in a crack house.

¶ 7. Mosley was indicted in December 2004. Count one of the indictment was for possession of at least one tenth of a gram but less than two grams of cocaine with intent to sell while in possession of a firearm. Count two was for possession of a firearm by a convicted felon. On February 17, 2005, a jury found him guilty of possession without the intent to sell. He was sentenced to thirty-two years in prison as to count one, and three years on count two.

¶ 8. Post-trial motions were denied. Mosley’s appeal was deflected here.

DISCUSSION

1. Weight and sufficiency of the evidence

¶ 9. Mosley alleges that his conviction was against the overwhelming weight of the evidence and that he is therefore entitled to a new trial. Alternatively, Mosley alleges that there was insufficient evidence and that his conviction should be reversed and he should be discharged. Both counts had as an element that Mosley was in possession of the firearm found on a bedside table. It is Mosley’s contention that his possession of the weapon was not adequately shown.

¶ 10. When a criminal defendant challenges the sufficiency of the evidence to uphold the conviction, the record evidence is viewed in a light most favorable to the State, or more precisely, in a light most favorable to the decision by the jurors. The credible evidence consistent with guilt must be accepted as true. Among the evidence supporting guilt are placed all favorable inferences that may be reasonably drawn from the physical evidence and testimony. The jurors resolve the factual issues. We do not lightly disturb the results of their deliberations. We may reverse on appeal and discharge the defendant from further prosecution only if as to one or more elements of the offense, the evidence viewed in this manner would not allow reasonable and fair-minded jurors to reach any decision other than to acquit. McClain v. State, 625 So.2d 774, 778 (Miss.1993).

¶ 11. A different but related standard applies to reviewing a trial judge’s refusal to grant a new trial on the basis that the overwhelming evidence weighed against guilt. To determine the weight, we test the evidence in a manner that is favorable to the verdict since we assume that the jury made credibility choices consistent with the verdict. We put on one side of the scale all evidence of the defendant’s guilt. Evidence favorable to the defense that must be accepted as true is placed on the opposite side of the scale. We reverse and grant a new trial only if the scale weighted in this manner convinces us that the verdict is so contrary to the evidence that to affirm would be to ignore an unconscionable injustice. McClain, 625 So.2d at 782.

¶ 12. Mosley admitted the gun was in the bedroom that he used and was on a bedside table. The gun was shown to be within arm’s reach of Mosley and was in plain view. Mosley admitted his house was a “crackhouse” and used this as an illustration of why the rightful owner of the weapon — allegedly Mosley’s fiancee— needed to have the gun in the house.

¶ 13. Constructive possession of a firearm is sufficient. As Mosley notes in his brief, the State need only prove dominion and control, not ownership. Sumrall v. State, 758 So.2d 1091, 1096 (Miss.App.2000). The jury instruction that without objection explained constructive possession of the gun required that Mosley have the weapon under his dominion and control, an element of which was that he was aware of the firearm’s presence. The jury in its verdict on the first count made a finding that Mosley possessed the firearm while also in possession of the cocaine.

¶ 14. We conclude that there was adequate evidence of possession of the weapon to withstand Mosely’s challenges both on weight and on sufficiency. We affirm the conviction.

2. Sentence

¶ 15. There was a defense objection to the trial court on the manner in which the judge applied three different statutes on enhancing the sentence, two relating to his status as a prior felon and the last relating to the weapon involved in this drug offense. No issue was made on this appeal about Mosley’s sentence. We have examined the trial judge’s construction for potential plain error. By plain error, we mean “an error so fundamental that it generates a miscarriage of jus-tice_” Morgan v. State, 793 So.2d 615, 617 (Miss.2001). When counsel has not raised an issue that may be this fundamental, “we look to whether 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 (Miss.2001).

¶ 16. There were four ingredients to the mix that formed Mosley’s sentence:

(1) Possession of one-tenth of a gram but less than two grams of cocaine permitted a sentence of not less than two years nor more than eight, and a fíne of not more than $50,000. Miss.Code Ann. § 41 — 29—139(c)(1)(B) (Rev.2005).
(2) The “maximum term of imprisonment prescribed for such felony” must be given for a defendant such as Mosley who has been twice previously convicted for felonies and sentenced to separate terms of at least one year. Miss.Code Ann. § 99-19-81 (Rev.2000). The base sentence to which any other enhancement applied was therefore eight years. One question is whether this section requires all other enhancements to be applied and maximized since they too might be within the meaning of the “maximum term ... prescribed for such felony.” Since the trial judge maximized all enhancements, whether he was required to do so is not before us.
(3) “Any person who violates ... Section 41-29-139 ..., and has in his possession any firearm, either at the time of the commission of the offense or at the time any arrest is made, may be punished by a fine up to twice that authorized by Section 41-29-139.... ” Miss. Code Ann. § 41-29-152 (Rev.2005). This provision was used to double Mosley’s sentence to sixteen years.
(4)A “person convicted of a second or subsequent offense under this [controlled substances] article may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized, or both.” Miss.Code Ann. § 41-29-147 (Rev.2005). With this second discretionary enhancement, the trial judge doubled the previously doubled sentence and gave Mosley a thirty-two year sentence.

¶ 17. In summary, three different enhancements were applied to the sentence as to Count I of the indictment. On the second count involving possession of a firearm by a prior felon, the judge gave a three-year sentence, to run consecutively to the thirty-two year sentence.

¶ 18. We have placed the three enhancement statutes in what we find to be the most natural progression. The trial judge also applied them in that order when actually announcing his sentence, though he earlier had placed them in a somewhat different order.

THE COURT: So it would be [a range of] 4 to 16. [In this observation, the trial judge doubled the 2 to 8 year range for the offense since Mosley was a repeat drug offender before applying the requirement that the maximum sentence be given to a twice-previously convicted felon]. If you then double that pursuant to 41-19-152, it would be 8 to 32. The Court is unsure whether — it would seem to me that the doubled sentence is the lawful sentence, so when you apply the subsequent statute that you would double it again. And I note in here in this headnote the Supreme Court says in [Stromas v. State ], 618 So.2d 116, that the sentence — “the legislature has called for stiff penalties for drug offenders as a matter of public policy.” So, Mr. Mosley, if you would stand for the imposition of the sentence.

(The defendant stood before the court with his attorney, Ms. Thomas.)

THE COURT: The Court imposes a sentence of 32 years in the custody of the Department of Corrections by arriving at that by the maximum of 8 years for the original statutory violation and then doubling it pursuant to 41-29-152 and pursuant — then doubling that pursuant to 41-29-147 to be served as an habitual offender pursuant to 99-19-81, that you serve 3 years in the custody of the Department of Corrections as an habitual offender pursuant to 99-19-81 as to Count Two, consecutive to Count One.

¶ 19. We do not interpret the trial judge’s remarks as a conclusion that he had no discretion under the enhancement statutes. In the reference to the Stromas annotation, he seemed to be using public policy as the reason that he concluded that all the enhancement statutes were intended to be applied in the same case, if applicable. Because of the legislature’s public policy position, he would give the maximum that he thought was available under each of the relevant statutes.

¶ 20. One question that arises is whether the trial judge should have used the enhancements of both Section 99-19-81 and of Section 41-29-147. They both rely on the prior convictions of a defendant to affect the sentence given for a later offense. One section requires the maximum sentence be given in a new prosecution when the defendant has “been convicted twice previously of any felony,” and the prior sentences were to separate terms of at least one year. Miss.Code Ann. § 99-19-81. The other section permits but does not require an increase in the sentence to as much as twice the “otherwise authorized” punishment, when the defendant has been convicted at least once before of an offense under the controlled substances article. Miss.Code Ann. § 41-29-147.

¶ 21. Regardless of whether these statutes should be seen as independent enhancements because of the differences in them or overlapping ones because of the similarities, it is important that the Supreme Court has already determined that using both is appropriate. Tate v. State, 912 So.2d 919, 922-23 & 933 (Miss.2005) (applying both statutes, “the trial court sentenced Tate correctly.”) We, of course, are bound by that conclusion.

¶ 22. When the trial judge announced his sentence decision, he first gave Mosley the maximum under section 41-29-139 of eight years. He then doubled that term because Mosley had a firearm while committing the crime of possessing cocaine. Miss.Code Ann. § 41-29-152. The latter statute permits a sentence of up to twice “that authorized by 41-29-139” to be imposed. That resulting sixteen year sentence was one “otherwise authorized” by law, and therefore it could be doubled again under section 41-29-147 since Mosley had a previous conviction under the controlled substances article.

¶ 23. After this review, we are convinced that the Supreme Court would authorize this multiplicity of sentence enhancements. Our concern under plain error review was that the statutes themselves would not permit such stacking of sentencing multipliers. We only briefly note that constitutional arguments are also unavailing. The trial court cited authority in which the Mississippi Supreme Court upheld a sixty year sentence for subsequent offender possession of cocaine:

Although this sentence seems quite severe, it is not a “grossly disproportionate” sentence for the crimes that Stro-mas committed. Drug offenses are very serious, and the public has expressed grave concern with the drug problem. The legislature has responded in kind with stiff penalties for drug offenders. It is the legislature’s prerogative, and not this Court’s, to set the length of sentences.

Stromas v. State, 618 So.2d 116, 123 (Miss.1993).

¶ 24. We affirm the conviction and the sentence.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY OF CONVICTION OF COUNT I POSSESSION OF COCAINE WHILE IN POSSESSION OF A FIREARM AND SENTENCE OF THIRTY-TWO YEARS WITHOUT PAROLE AND COUNT II POSSESSION OF A FIREARM BY A CONVICTED FELON AND SENTENCE OF THREE YEARS WITHOUT PAROLE ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH SENTENCE IN COUNT II TO RUN CONSECUTIVELY TO SENTENCE IN COUNT I, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

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

      . The judge properly quoted the text of the annotation from the bound Mississippi Code, which referred to the case as Campbell v. Campbell. The writers of the annotation erred, as Campbell is the preceding case on that page. See Stromas v. State, 618 So.2d 116 (Miss.1993); cf. Judicial Decisions 1, following Miss.Code Ann. 41-29-147 (Rev.2005).


author: KING, C.J.,

text:
    Jimmy McCOOL, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-02181-COA.
    Court of Appeals of Mississippi.
    May 23, 2006.

      Edward C. Fenwick, Kosciusko, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   KING, C.J.,

for the Court.

¶ 1. On September 22, 2004, Jimmy McCool (McCool) was found guilty by an Attala County Circuit Court jury of driving under the influence of intoxicating liquor. McCool was sentenced to serve a term of five years in the custody of the Mississippi Department of Corrections, as this was his third D.U.I. conviction in five years. He was also ordered to pay a fine of five thousand dollars plus court costs and fees. McCool now appeals raising only the issues of weight and sufficiency of the evidence.

FACTS

¶ 2. On November 16, 2003, Attala County Deputy Sheriff Zelie Shaw was called to Jerry Ray’s residence for a domestic altercation involving McCool and his sons, Jimmy McCool, Jr. (Jimmy) and Robbie McCool (Robbie). Jimmy and Robbie, along with Karen McCool, McCool’s ex-wife, were present at Ray’s residence when Deputy Shaw arrived. Shaw was informed of the altercation and noticed redness and swelling on the left side of Robbie’s face. Shaw then drove to McCool’s residence, but McCool was not home. While Shaw was waiting in his vehicle on the road in front of McCool’s residence, McCool drove up to his home, then backed out into the road in front of his home. Shaw then exited his vehicle and stopped McCool, apparently to question him about the domestic altercation. Shaw testified that a strong odor of alcohol was on McCool’s breath, his speech was slurred, his eyes were bloodshot, a half-gallon of liquor was sitting between the driver’s and passenger’s seat, and a glass of liquor was sitting in the console. When Shaw advised McCool why he was at his residence, McCool became irate, loud, and belligerent. Shaw then asked McCool to step out of the vehicle. McCool complied but had to steady himself and began cursing Shaw. Shaw then placed McCool under arrest as McCool struggled and resisted and continued cursing and threatening Shaw. Shaw handcuffed McCool and placed him in the backseat of his patrol car. Shaw called another officer, Deputy Robert Riley, for assistance and began photographing the evidence. McCool refused to take the Intoxilizer test in the presence of Shaw, Riley, and jailer Tonya Roby.

ANALYSIS

¶ 3. McCool challenges both the legal sufficiency and weight of the evidence. In reviewing a challenge of legal sufficiency, this Court must determine whether any rational juror could have found that the State proved each and every element of the crime charged beyond a reasonable doubt. Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The State must be given the benefit of all reasonable inferences that may be drawn from the evidence. Christian v. State, 859 So.2d 1068, 1071(¶ 12) (citing Wetz v. State, 503 So.2d 803, 808 (Miss.1987)). In reviewing a claim that the verdict was against the overwhelming weight of the evidence, this Court will only reverse a conviction if allowing it to stand would sanction an unconscionable injustice. Id. at 844(¶ 18) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)).

¶ 4. McCool was convicted of third offense D.U.I. in violation of Mississippi Code Annotated § 63-11-30 (Rev.2004). Therefore, the State was required to prove the following elements beyond a reasonable doubt: (1) that McCool was operating a motor vehicle, (2) while under the influence of intoxicating liquor. Miss.Code Ann. § 63-11-30(1). The State was also required to prove that McCool had twice been convicted of D.U.I. in the five years prior to the current D.U.I. charge. Miss. Code Ann. § 63-ll-30(2)(c). The State introduced into evidence two sentencing orders in which McCool had been convicted of separate D.U.I. charges in the past five years.

¶ 5. Robbie, Jimmy, Karen, Shaw, and Roby testified at trial. Each witness testified that, based on their observations, McCool was drunk on November 16, 2003. However, only Shaw witnessed McCool driving while under the influence of intoxicating liquor. He testified that McCool had slurred speech and bloodshot eyes, smelled of alcohol, had trouble standing, was loud and belligerent, and had more than one open container of alcohol in the vehicle. Shaw also testified that McCool refused the Intoxilizer test. The remaining witnesses’ testimony buttressed Shaw’s testimony that McCool was indeed intoxicated. McCool’s sons and ex-wife had seen him intoxicated shortly before Shaw witnessed him driving while intoxicated. Further, Roby, the jailer, observed McCool’s intoxication immediately after his arrest and transportation to the jailhouse. In viewing the evidence in the light most favorable to the verdict, we find both that the State proved every element of the D.U.I. charge beyond a reasonable doubt, and that a reasonable juror could have found McCool guilty of third offense D.U.I. based on the evidence presented

¶ 6. THE JUDGMENT OF THE AT-TALA COUNTY CIRCUIT COURT OF CONVICTION OF THIRD OFFENSE D.U.I. AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF PAROLE OR PROBATION, ALONG WITH A FINE OF FIVE THOUSAND DOLLARS PLUS COURT COSTS AND FEES IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO APPELLANT.

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