author: GRIFFIS, J,

text:
    CITY OF NATCHEZ, Appellant v. Irma JACKSON and Husband, Melvin Jackson, Appellees.
    No. 2005-CA-00043-COA.
    Court of Appeals of Mississippi.
    Sept. 19, 2006.
    Rehearing Denied Nov. 3, 2006.

      L. Clark Hicks, Jr., attorney for appellant.
    W. Bruce Lewis, William F. Riley, Natchez, attorneys for appellees.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   GRIFFIS, J,

for the Court.

¶ 1. Irma and Melvin Jackson filed suit against the City of Natchez for Irma’s personal injuries and Melvin’s loss of consortium. After a bench trial, the Adams County Circuit Court entered judgment for the Jacksons. The city appeals and argues (1) there was no dangerous condition, (2) the trial court erred in admitting and excluding expert testimony, (3) the trial court erred in admitting medical records, (4) Irma was comparatively negligent, and (5) the damage award was not supported by the evidence. We find no error and affirm.

FACTS

¶ 2. Irma visited Copy Cats on Main Street in Natchez in order to have fliers printed. She was carrying her purse and papers in her hands. As she neared the door, about to enter the store, she fell. Her high heel got caught in a two-inch wide, six-inch deep hole.

¶ 3. The hole was a part of an old coal grate that the city had attempted to cover over with concrete. The reason was the city determined that the holes in the coal grate created a dangerous condition to pedestrians. The owner of Copy Cats, James Handjis testified that on four different occasions he had called the city, because the concrete was falling through the holes in the grate. Each time, the city patched the respective hole with more concrete. The Jacksons’ concrete expert Henry White testified that concrete does not adhere to steel and this was the reason that the concrete plugs in the holes kept giving way. White also testified that it appeared the city had engaged in a core cutting in the area in question, which was further causing the strength of the concrete plugs to give way.

STANDARD OF REVIEW

¶ 4. In a claim based on the Mississippi Tort Claims Act, the trial judge sits as the finder of fact. Miss.Code Ann. § 11-46-13(1) (Rev.2002). “A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings will not be reversed on appeal where they are supported by substantial, credible, and reasonable evidence.” Donaldson v. Covington County, 846 So.2d 219, 222(¶ 11) (Miss.2003). The circuit judge’s? findings of fact and conclusions of law will not be disturbed unless the judge abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Miss. Dep’t of Transp. v. Trosclair, 851 So.2d 408, 413(1111) (Miss.Ct.App.2003).

ANALYSIS

I. Did the trial court err in finding a dangerous condition?

¶ 5. The city first argues that the judge erred in finding a dangerous condition, because holes in sidewalks are not dangerous conditions for which municipalities may be held liable. The Jacksons respond that the coal grate was placed there by the city and was negligently repaired by the city. The Jacksons further argue that the city violated its own city code by failing to adequately secure the opening.

¶ 6. To state a cause of action under the dangerous condition exemption of the Mississippi Tort Claims Act, a plaintiff must show: (1) a dangerous condition, (2) on the government entity’s property, (3) which the government entity caused, or of which it had notice and time to protect or warn against, and, (4) in the case of a failure to warn, the condition was not open and obvious. Miss.Code Ann. § 11-46-9(1)(v) (Rev.2002). See City of Jackson v. Internal Engine Parts Group, Inc., 903 So.2d 60, 64(¶ 11) (Miss.2005). The city argues that holes and cracks in sidewalks are not dangerous conditions for which municipalities may be held liable. Indeed we have refused to impose liability for naturally occurring defects in sidewalks. Burton v. City of Philadelphia, 595 So.2d 1279, 1280 (Miss.1991). However, the supreme court has distinguished between defects caused by nature and those caused by the government. Id.; Lancaster v. City of Clarksdale, 339 So.2d 1359, 1360 (Miss.1976); City of Ruleville v. Grittman, 250 Miss. 842, 845-46, 168 So.2d 527, 529 (1964). Where the defect is caused by the city, we are much more prone to hold it is a triable issue as to whether the city was negligent. Lancaster, 339 So.2d at 1360.

¶ 7. For example, in Grittman, 250 Miss, at 843,168 So.2d at 528, the court upheld a verdict for a pedestrian who fell when her shoe was caught in a steel wire wicket the city had embedded in the sidewalk and left exposed. A ditch had been excavated for the purpose of installing sewer lines. Id. at 844, 168 So.2d at 528. Then, “[t]he ditch ... was filled in part with broken pieces of concrete, one of which had attached a piece of steel wire reinforcement.” Id. When the surface was resealed with concrete, the steel wire remained exposed. Id. “About four days before plaintiff sustained said injuries she noticed the wicket and intended to notify the authorities when she arrived at work but forgot to do so.” Id. at 845, 168 So.2d at 528. Later, her foot caught in the wicket causing her to fall and sustain serious injuries. Id. at 845, 168 So.2d at 529. The court held that since the defect was caused by the City of Rule-ville, it was a question for the jury as to whether the city was negligent. Id. at 846, 168 So.2d at 529. The court went on to hold the jury was justified in finding it was a dangerous condition. Id. at 847, 168 So.2d at 530.

¶8. Likewise, the undisputed evidence here was that the hole was caused by the affirmative act of the City of Natchez. The city placed the coal grate in the middle of the sidewalk on Main Street. The steel grate was full of holes. Even though the city tried to cover the holes up, it left at least one hole exposed. Thus, it was a question for the trier of fact as to whether the city was negligent.

¶ 9. The trial court found the coal grate did create a dangerous condition. We must affirm this holding so long as there is substantial, credible evidence to support it. Donaldson, 846 So.2d at 222(¶ 11). Hand-jis testified that the hole created an unreasonable trip hazard for his customers, many of whom wear high heels and enter and exit the store with their hands full. The city’s director of public works Richard Burkes admitted that the holes in the coal grate created an unreasonable trip hazard. He testified this was why the city previously attempted to cover the holes altogether. He also testified, that the coal grate was a dangerous condition according to the city code “so long as it was not so secure as to prevent accidents to persons passing over them.” Natchez Code, Art. Ill, § 26-41. On this record, we hold the judge was justified in finding the hole in the coal grate was a dangerous condition. Not only did the city affirmatively cause the defect, there was evidence, including an admission, that this was a dangerous, unreasonable trip hazard.

II. Did the trial court err in admitting and excluding expert opinions?

¶ 10. The city next claims that the trial judge should not have allowed White to render an expert opinion on whether the grate was negligently repaired or dangerous. In the alternative, the city asserts that the court should have allowed Thomas Horn to render an expert opinion on whether the hole was dangerous.

¶ 11. The admissibility of evidence rests within the trial court’s discretion. Crawford v. State, 754 So.2d 1211, 1215(¶ 7) (Miss.2000) (overruled on other grounds). Unless her judicial discretion is abused, this Court will not reverse her ruling. Id. The qualifications of an expert in the fields of scientific knowledge are left to the sound discretion of the trial judge. Id. Her determination on this issue will not be reversed unless it clearly appears that the witness is not qualified. Id.

A. Did the trial court err in accepting White’s expert opinions?

¶ 12. While the city concedes White’s qualifications to testify as an expert on concrete construction, repairs and characteristics, it argues that any such testimony was irrelevant. The city also argues that White’s testimony regarding the hole posing a danger was not helpful to the trier of fact and not based on any tests. The Jacksons respond that his testimony was relevant to a central issue in the case and his opinions were properly admitted.

¶ 13. First, we address the issue of relevancy. “Evidence which is not relevant is not admissible.” M.R.E. 402. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” M.R.E. 401. The pretrial order established that one of the issues to be tried was whether or not the city had “improperly repaired the coal grate/sidewalk on numerous occasions before the fall.” White testified that the city’s active repair and maintenance of the grate were causing the holes to keep reappearing. First, he testified that concrete does not adhere to steel. White also testified that the city was engaged in core drilling of the grate and sidewalk in question, which weakens the strength and structure of the concrete covering the coal grate. Finally, he testified that a more structurally secure resolution to the problem would be to remove the coal grate altogether and then fill in the space with concrete. This testimony tends to make the fact that the city negligently repaired and maintained the grate and sidewalk in question more probable than it would be without this evidence. Therefore, it was relevant and properly admitted.

¶ 14. Next, we consider whether White’s opinion that there was a dangerous condition should have been excluded. The city says the opinion does not require special skill, and that if it does White does not have that special skill, nor did he base his opinion on any tests. In particular, the city takes issue with White’s position as a union man and his inability to speak the King’s English. However, the city did not object to this opinion at trial. The closest the city came was several questions later when White was asked if he had an opinion as to whether the area in question conformed with the city’s code. The only objection offered then was relevancy. Error may not be predicated upon a ruling admitting evidence unless there is a timely objection. M.R.E. 103(a)(1). A party must state the specific grounds for objection, unless the grounds are apparent from the context. Id. If the objection on appeal differs from the objection at trial, the issue is not properly preserved for appellate review. Belmont Homes, Inc. v. Stewart, 792 So.2d 229, 239(¶ 45) (Miss.2001). Such failure waives objection to expert or opinion evidence and to an objection that the opinion states a legal conclusion. Miss. Baptist Found., Inc. v. Estate of Matthews, 791 So.2d 213, 217-18(¶ 16) (Miss.2001).

B. Did the trial court err by excluding Horn as an expert on dangerous conditions?

¶ 15. The city argues that Horn was qualified to testify as to whether the hole was dangerous and as to whether the city caused the hole based on his experience as a municipal risk manager. The Jacksons respond that his testimony was irrelevant, because the issue was negligent repair. They also say that he was not qualified to give the opinion, and his proffered opinions were not supported by facts or data.

¶ 16. Horn’s proffered testimony was for three opinions: (1) the hole was not dangerous, (2) it was open and obvious, and (3) it was not caused by the city. The trial court did not accept him as an expert:

because the Court do[es] not see anything in his qualifications or his testimony that the Court believes that would make him an expert. There was no special training. For the mere fact that he has held that position as Risk Manager and Director for fifteen years does not make one an expert on whether or not this sidewalk is dangerous. I would think it would take an engineer or somebody, or something to look at this and say, you know, somebody could fall here, or could not fall here. For that reason the Court do[es] not accept him as an expert.

On appeal, the city does not argue that Horn was qualified to testify ás to what is open and obvious.

¶ 17. As for his opinion on causation, this was inadmissible. His expert designation did not list this as part of his proffered testimony. An expert opinion that was not set out in the expert’s designation, will be excluded unless the designation gave fair notice of that opinion. Peterson v. Ladner, 785 So.2d 290, 295(¶ 19) (Miss.Ct.App.2000). Horn’s designation stated only that he would give an opinion that the hole was not dangerous and was open and obvious. This does not give fair notice as to his opinion on causation. Additionally, he admitted that he had no expertise in concrete maintenance and repairs, so he was unqualified to testify as to whether the city’s activities did or did not cause the defect.

¶ 18. As for the remaining opinion on whether the hole was dangerous, he was designated to give this opinion. The question remains whether he was qualified.

¶ 19. “The test is whether the witness ‘possesses peculiar knowledge or information regarding the relevant subject matter which is not likely to be possessed by a layman.’ ” Nunnally v. R.J. Reynolds Tobacco Co., 869 So.2d 373, 384(¶ 36) (Miss.2004). During direct, counsel for the city asked Horn if any of the classes he took included “municipalities in sidewalk safety.” Horn explained that it only dealt with work zone safety. When asked how his experience as city Risk Manager related to sidewalk safety, he replied that he would receive a call that there was an accident, he would investigate, put up a barricade, call Public Works to come fix any defect, and leave once Public Works arrived. He would also prioritize the work orders he handed to Public Works. During cross-examination, Horn said that it does not take any expertise to do this. He also testified that he was not qualified as an expert in concrete repairs. Based on his voir dire, we cannot say the judge abused her discretion in determining that Horn was not qualified to opine whether or not the hole was dangerous. He did not indicate a peculiar knowledge above that of the average, randomly selected adult that would give him a better understanding of whether or not this hole was dangerous.

¶ 20. On appeal, the city concedes that it does not take any expertise to say whether or not the hole in question constituted a possible danger. Nevertheless, they insist that Horn should have been allowed to give this testimony, because White was allowed to opine as to whether there was a dangerous condition. As previously set out, the city never objected to White’s opinion, let alone on the basis that he was unqualified to give it. This issue has no merit.

III. Did the trial court err in admitting medical records?

¶ 21. The city next complains that the trial court should not have admitted Irma’s medical records into evidence, because there was no sponsoring witness to authenticate the documents. The Jack-sons respond that the city stipulated to the admissibility and authenticity of these records and that some of the records were in fact authenticated by Dr. Robert B. Haim-son.

¶ 22. The admissibility of evidence rests within the trial court’s discretion. Crawford, 754 So.2d at 1215(¶ 7). Unless her judicial discretion is abused, this Court will not reverse her ruling. Id. “For a case to be reversed on the admission or exclusion of evidence, it must result in prejudice and harm or adversely effect a substantial right of the party.” Crane Co. v. Kitzinger, 860 So.2d 1196, 1199(¶ 9) (Miss.2003) (quoting Terrain Enters., Inc. v. Mockbee, 654 So.2d 1122, 1131 (Miss.1995)).

[Error] is prejudicial, and grounds for reversal, only when it effects the final result of the case and works adversely to a substantial right of the party assigning it. Obviously, in order for the rule of harmless error to be called into play in support of a judgment, the judgment must be otherwise supportable ....

Catholic Diocese of Natchez-Jackson v. Jaquith, 224 So.2d 216, 221 (Miss.1969). Where a party stipulates to the admissibility of medical records, that party cannot later complain about their introduction and consequential prejudicial effect. Meena v. Wilburn, 603 So.2d 866, 871 (Miss.1992).

¶ 23. The pretrial order listed certain medical bills and records that Irma would offer at trial:

Natchez Community Hospital ER (bill & records)
ER Physician (bill)
Radiology Associates (bill)
Dr. Robert Haimson (bill and records)
Natchez Regional (bone scan) (bill and records)
Open Air MRI (back) (bill and records) Open Air MRI (shoulder) (bill and records)
Pain Management (bill and records)
Key Rehab (bill and records)
Dr. Scott Wolfe (bill and records)
Wal-Mart Pharmacy (bill)
Wilson-Holder Drug (bill)
Walgreens (bill)

The order stated that, “Each exhibit has been marked for identification and examined by all counsel.” It also contained a stipulation, “The authenticity and admissibility in evidence of these exhibits has been stipulated. If the authenticity and/or admissibility of any exhibit is objected to, the exhibit must be identified in the following space, together with a statement of the specific ground or grounds for the objection.” In the required space appeared the following objection, “Defendant objects to any medical bills and records not listed in Plaintiffs Summary of Charges contained in Paragraph 7 of this pretrial order.” The medical providers listed in Paragraph 7 of the pretrial order matched those listed above.

¶ 24. At trial, counsel for the Jacksons proceeded to have Irma testify about her medical bills. The city stipulated that the summary of her medical records could come into evidence, and that had Irma testified, she would say she incurred those bills as a result of the fall. The summary was marked as Exhibit 2. Then counsel for the Jacksons attempted to introduce the medical records into evidence:

BY MR. LEWIS: Your Honor, at this time we offer the medical records to support the medical bills that have been marked, and they were identified in Paragraph 11, in the Pretrial Order. There is [sic] medical records of each one of the medical providers that has now been stipulated into evidence.
BY THE COURT: The Court will accept that that will be Exhibit 2. It’s a composite exhibit. After you mark that, you can pass it up here.
BY MR. LEWIS: The summaries were the stipulated exhibit. So, that will be Exhibit 2.
BY THE COURT: There is [sic] medical records from Natchez Community Hospital that were sent to the clerk.
BY MR. LEWIS: Your Honor, I think they are here already. That’s the very first group of documents that’s offered here.
BY THE COURT: Okay, then put this one back in the file.
BY MR. J. MCCOY [the city’s attorney]: We have an objection to the medical records going in because they weren’t identified in the pretrial order and we don’t know if what this packet — I have not looked through this packet, but they do appear to contain some records, some writing, it could contain hearsay, we don’t know what this contains, but it wasn’t in the pretrial order. We have already stipulated to what was in the pretrial order, we have stipulated that, but we object to these records going into evidence on the grounds of hearsay, and they weren’t contained in the Pretrial Order as part of it.
BY MR. RILEY [the Jacksons’ attorney]: May I answer that?
BY THE COURT: Yes, sir.
BY MR. RILEY: In the pretrial order on page six, everyone [sic] of the bills and records are listed. Now, with regard to the hearsay argument, all hospital records contain hearsay; but it has to go to the business records of the hospital. It’s admissible to show what was done at the hospital’s location. You can’t extract the hearsay, it’s a part of the records. Not only that, we sent copies of these to Counsel.
BY MR. LEWIS: We’d be glad to let him have the opportunity to examine them if he’d like to, to see if they had been presented to him.
BY MR. J. MCCOY: Your Honor, in Paragraph 11 of the pretrial order, it says each exhibit has been marked for identification and examined by all Counsel. They did not mark them for identification. As a matter of fact, what he’s trying to offer into evidence, as the Court can see, has no marking on it whatsoever on it. It has not been marked for identification. They may have — I can’t tell the Court whether or not they furnished us copies of those. They have furnished us copies of some medical records, but I don’t know that that packet that Counsel is attempting to offer into evidence at this trial contains those.
BY MR. RILEY: Your Honor, we would be glad to introduce proof where we did send it to him.
BY THE COURT: We can take a break and let him view those to see if he has them. So we’ll take a fifteen minute break.
BY THE COURT: Mr. McCoy, did you have an opportunity to—
BY MR. MCCOY: Yes, Your Honor.
BY THE COURT: Is it everything?
BY MR. J. MCCOY: Are we back on the record?
BY THE COURT: Yes, we can go back on the record.
BY MR. J. MCCOY: For the record, Your Honor, we would like to rely on objections to these hospital records going into evidence that we stated in the pretrial order in Paragraph 11. That is that they were not marked for identification and given to us to be examined prior to trial. I attempted to examine them here in the Courtroom and I cannot do so because they are not in the same order that we have the medical records that were furnished to us. There is just no way I can know if these are the same. As you can see, it’s a thick pack of records and there is no way that I can know that I have seen these records. Still the main objection is that it wasn’t — in Paragraph 11 of the pretrial order it requires each exhibit to be marked for identification and examined by all Counsel. I can state to the Court that we were not given the opportunity to — that this exhibit was not marked, there is no marking on it anywhere, and it has not been examined and for that reason we object to it going into evidence.
BY THE COURT: The objection is overruled, the Court will allow them to be marked as an exhibit .... three.
BY MR. LEWIS: Your Honor, we’d like the record to reflect that the Summary on Exhibit 2 is numbered 1-13, and the task [sic] on Exhibit 3 correspond with Exhibit 2.

¶ 25. From this record, we see that there is no question that the city had stipulated to the records that were listed in the pretrial order. The only objection is that the records introduced were not marked, and the city could not tell whether or not these were the same records stipulated. The city was given an opportunity to review the records to make specific objections in case the records were not what they had stipulated. After doing so, the city was unable to say if any of the records had not been previously produced. This may be one thing, but on appeal, the city still is unable to say if any of the records in Exhibit 3 were not in fact stipulated.

¶26. The records were from Natchez Community Hospital, Dr. Haimson, Open Air MRI, Natchez Regional, University Medical Center — Pain Management, Key Rehab Associates, Inc., and Dr. Scott Wolfe. These were produced in the same order as they were listed in Paragraphs 7 and 11 of the pretrial order. On this record, we cannot tell that any records went in to evidence without its authenticity and admissibility stipulated.

¶ 27. Even were we to find this was error, we see no resulting prejudice in this case. Dr. Haimson did authenticate the medical records that came from his office. He also testified that Irma’s injuries were caused by and consistent with the fall. He testified that Irma’s medical bills were reasonably and necessarily incurred. Both sides stipulated that Irma also would testify that she saw these same medical providers and incurred charges because of the injuries received from the fall. Finally, Dr. Haimson’s testimony corroborated the dates and types of injuries Irma was experiencing. We affirm.

TV. Should the trial court have assessed comparative fault?

¶28. The city argues that the trial court should have assessed comparative fault to Irma because the hole was open and obvious. The Jacksons argue that the court found the hole was not open and obvious.

¶ 29. One of the reasons the trial judge found the area to be a dangerous condition was that it was camouflaged by the city. Specifically, she found, “That the city maintains the sidewalk, and it is the city who chose to cover the grate of [sic] the concrete. If they had not ... covered it with concrete, then one with — especially a person with any kind of shoes with a heel on it would pay attention.” The court found it was not open and obvious, because:

nobody walks around looking down at the sidewalk. When I walk I look up the street. Open and obvious is viewing what’s there now in those pictures with that big orange barrel sitting there, I would see that and know I’d need to look down, but other than that I’m walking down the sidewalk, I’m not looking down to see if there are little holes in the middle of the sidewalk that’s going to catch a heel.

¶ 30. There was sufficient evidence to support a finding that the hole was not open and obvious. There were six pictures of the patched grate, bates numbered 1-6. On pictures 1 and 6, the orange barrel covers up the hole. In pictures 4 and 5, the barrel is placed on the grate right beside the hole. Finally, in the two remaining pictures, 2 and 3, the barrel is placed off the grate altogether. Pictures 2-5 were from close range. The hole is much more apparent in the pictures where the barrel is placed right beside it, because the barrel covers up the rest of the grate. In the pictures with the barrel off the grate, the hole is less apparent. There are at least two other black circular spots on the grate. We assume these are merely spots and not holes, because they appear to be so and there was no evidence that there were any other exposed holes on the grate in question. These make the hole less apparent, because it appears to also be merely a two dimensional spot, rather than a three dimensional hole. The judge had all these pictures before her and a chance to evaluate them. We cannot say the judge was in error in trying to place these pictures in context of how they appeared at the time of the accident, i.e., without the orange barrel and from the perspective of a pedestrian. That was her job as finder of fact, and there was evidence to support her finding.

¶ 31. The testimony also supported the finding that the defect was not open and obvious. It was a two inch diameter hole placed in front of the entrance to a copy store, where testimony was that customers often travel in and out of store carrying papers and boxes. The testimony was also that many of those customers wear high heels. “Members of the public using sidewalks are not under a duty to single-mindedly be on the alert at all times to avoid possible obstructions that have been placed there by the city officials and their agents.” Lancaster, 339 So.2d at 1360. This is especially true in this case where the defect was in front of the door to the store. It is not reasonable to expect a pedestrian to keep her eyes on the ground, and risk being hit by a suddenly opened door, or running into another pedestrian. She was only required to keep a reasonable lookout under the circumstances. It was reasonable for her to divert her attention from the sidewalk and place it on the door that she was seconds away from entering.

¶ 32. Nevertheless, the city argues that Mayfield v. The Hairbender, 903 So.2d 733 (Miss.2005) mandates that a plaintiff be assessed with comparative fault when the defect was open and obvious. Mayfield does not apply to this case. In Mayfield, that the defect was open and obvious was not disputed. 903 So.2d at 736 (¶¶ 13-14). In the instant case, the issue was disputed. The trial judge found the defect was not open and obvious and there was substantial credible evidence to support this finding.

¶ 33. While both parties concede that “open and obvious” is not a complete bar to recovery in this case, we recognize that it is a complete bar in a Tort Claims Act case for the failure to warn of a dangerous condition. City of Jackson, 903 So.2d at 64(¶ 11). It is not a bar to recovery when the issue is the government’s negligent maintenance or repair which led to the dangerous condition. Id. This case likewise presented questions of affirmative acts of negligence by the city as well as negligent maintenance and repair. This distinction aside, there was no open and obvious defect in this case. We affirm.

V. Was there evidence to support the damage award?

¶ 34. In its final argument, the city maintains that the damage award is unsupported by the evidence. They do not appeal the damages awarded to Melvin for loss of consortium. They appeal Irma’s $219,183.67 damage award. The city says Irma had nothing but soft tissue injuries which did not even require surgery. The Jacksons state that surgery was recommended but was not an option for Irma because of a heart condition.

¶ 35. We must determine whether the monetary damages awarded were proved to a reasonable certainty and not based merely on speculation or conjecture. Fred’s Stores of Tenn., Inc. v. Brown ex rel. Brown, 829 So.2d 1261, 1263(¶ 10) (Miss.Ct.App.2002).

There is at times some necessary measure of speculation when a fact-finder sets an amount of damages to award. In such cases, it is the plaintiffs duty to lay enough of a foundation in evidence to assist the trier of fact to make a fair and reasonable decision. When a trial judge sits without a jury, an appellate court must review the record and accept all evidence that would reasonably support the judgment, together with any reasonable inferences that could be drawn from them.

Id. (citations omitted). “It is primarily the province of the [fact-finder] to determine the amount of damages to be awarded and the award will not normally be set aside unless so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous.” Lewis v. Hiatt, 683 So.2d 937, 941 (Miss.1996). The amount of the physical injury, mental and physical pain, present and future, temporary and permanent disability, medical expenses, loss of wages and wage-earning capacity, sex, age and health of the injured plaintiff, are all variables to be considered by the fact-finder in determining the amount of damages to be awarded. Woods v. Nichols, 416 So.2d 659, 671 (Miss.1982). Each case must be decided on its own facts. Id.

¶ 36. The judge awarded Irma $219,183.67 in damages. The judge found that $19,183.67 of this was for past medical expenses. This was supported by evidence at trial that Irma reasonably and necessarily sustained $19,183.67 in past medical bills due to this accident. Irma, her husband, and her doctor testified to her other damages as well. Because of the fall, she has sciatica radiating from her back to her left leg. Her left leg goes suddenly numb and causes her to fall. She also injured her elbow and shoulder and left ankle in the fall. She is not a candidate for surgery because of her pre-existing heart condition. She will continue to live with the pain. She no longer can cook, clean, or bathe herself. She is no longer able to attend her son’s school functions or help with his homework. She is unable to decorate for Christmas, attend family functions, help or travel with her husband’s ministry. She is depressed. She and her husband used to be affectionate and active together. As a result of the accident, they no longer can be physically intimate with one another, because the pain is too great. On this record, we cannot say that the award of damages was so unreasonable as to shock the conscience of the court. We affirm.

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

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


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Tavaris Lendez MOSLEY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-CP-01881-COA.
    Court of Appeals of Mississippi.
    Nov. 7, 2006.

      Tavaris Lendez Mosley (Pro Se), attorney for appellant.
    Office of the Attorney General by Jose Benjamin Simo, attorney for appellee.
    Before LEE, P.J., IRVING, and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Tavaris Lender Mosley pled guilty to the charge of sale of cocaine before the Circuit Court of Lowndes County. He was sentenced to serve eleven years in the custody of the Mississippi Department of Corrections (MDOC) and ordered to pay a fine of $5,000. Mosley’s pro se motion for post-conviction relief was denied by the circuit court. Aggrieved by the trial court’s decision, Mosley appeals. Finding no error, we affirm.

FACTS

¶ 2 On January 30, 2003, Mosley was indicted in a two count indictment on the charge of sale of cocaine and sale of MDMA(Ecstasy) in violation of Mississippi Code Annotated section 41-29-139 (Supp. 2006) by the grand jury of Lowndes County, Mississippi.

¶ 3. Mosley pled guilty to the charge of sale of cocaine on February 2, 2005. On June 10, 2005, he filed a motion for post-conviction relief to vacate and set aside conviction and sentence. Mosley then filed a motion to amend post-conviction relief, to vacate and set aside conviction and sentence on August 1, 2005. The Circuit Court of Lowndes County denied the motion for post-conviction relief on September 1, 2005.

¶ 4. Aggrieved by the judgment against him, Mosley appeals. He asserts the following issues for this Court’s review: (1) whether the indictment was valid, and (2) whether he received ineffective assistance of counsel.

STANDARD OF REVIEW

¶ 5. When reviewing the denial of a motion for post-conviction relief, we will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. Pace v. State, 770 So.2d 1052, 1053(¶ 4) (Miss.Ct.App.2000).

ISSUES AND ANALYSIS

I. Whether the indictment was valid.

¶ 6. Mosley argues that his indictment was defective because the indictment did not specify the amount of cocaine that he allegedly sold. Rule 7.06 of the Uniform Rules of Circuit and County Court states that an indictment “shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.” Mosley’s indictment meets this burden.

¶7. With the exception of trafficking, the penalty for the sale of cocaine is the same regardless of the quantity that was sold. Miss.Code Ann. § 41 — 29—139(a)(1), (b)(1) (Rev.2001). Mosley’s assertion that the indictment needed to mention a particular quantity of drug is flawed. Cocaine is a Schedule II drug that is made criminal by § 41-29-139(c). A particular quantity is not specified and the statute only differentiates on the basis of quantity when marijuana is involved. Carroll v. State, 755 So.2d 483, 487(¶ 12) (Miss.Ct.App.1999). Therefore, the amount of cocaine that Mosley sold was not an essential element to the crime. Thus, the indictment was not defective. This issue is without merit.

II. Whether Mosley received ineffective assistance of counsel.

¶ 8. Mosley argues that he received ineffective assistance of counsel because his attorney failed to challenge a defective indictment. Under Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674, (1984), Mosley has the burden of proving that his counsel’s assistance was deficient and that the deficiency resulted in prejudice. Campbell v. State, 878 So.2d 227, 231 (¶ 20) (Miss.Ct.App.2004). The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Since the indictment was not defective, counsel’s decision not to challenge it cannot amount to ineffective assistance of counsel, as challenging it would not have changed the result of the proceeding. Mosley has failed to present any evidence that would prove ineffective assistance of counsel. This claim is wholly without merit.

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

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


author: MYERS, P.J.,

text:
    Bruce Calvin McCOY, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00089-COA.
    Court of Appeals of Mississippi.
    Nov. 7, 2006.

      Bruce Calvin McCoy, appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK and GRIFFIS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Bruce Calvin McCoy, pro se, appeals the Circuit Court of Lincoln County’s denial of his motion for post-conviction relief. Finding that McCoy failed to comply with the requirements of a motion for post-conviction relief, we dismiss without prejudice so that McCoy may separate his individual claims for relief in compliance with Mississippi Code Annotated section 99-39-9(2) (Rev.2000).

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. McCoy was charged in four separate indictments on November 10, 2004, for nine different crimes, involving four different victims. On December 6, 2004, McCoy pled guilty to two counts of burglary of a dwelling, one count of burglary of a building, four counts of grand larceny, and two counts of petit larceny. Each of the counts was enhanced under our habitual criminal statute, Mississippi Code Annotated section 99-19-81 (Rev.2000). At his sentencing hearing held on January 10, 2005, McCoy received a term of incarceration of twenty-five years for both charges of burglary of a dwelling, seven years for the charge of burglary of a building, five years for each of the four grand larceny charges, and six months for the petit larceny charges. All sentences are to run concurrently and without the chance of early release or parole. Various costs, fees, fines and restitution payments were also assessed upon McCoy. From the convictions of the nine charges, McCoy filed a motion for post-conviction relief (PCR) in the circuit court, which was denied. Aggrieved, McCoy appeals to this Court attacking all four sentences which resulted from his guilty pleas entered on the nine different counts.

DISCUSSION

¶ 3. The rules of the Mississippi Code governing a prisoner’s post-conviction relief limit the number of counts that can be challenged in one motion. Miss. Code Ann. § 99-39-9(2). Section 99-39-9(2) states: “A motion shall be limited to the assertion of a claim for relief against one judgment only. If a prisoner desires to attack the validity of other judgments under which he is in custody, he shall do so by separate motions.” Where a petitioner seeks post-conviction relief on multiple judgments against him, he must file one post-conviction motion for each of the challenged judgments. Smith v. State, 919 So.2d 989, 992(¶ 2) (Miss.Ct.App.2005); Readus v. State, 837 So.2d 209, 212(¶ 7) (Miss.Ct.App.2003); Shaw v. State, 803 So.2d 1282, 1284-85(¶ 9) (Miss.Ct.App.2002). While all of the judgments against McCoy were entered on the same date, the judgments were indeed separate convictions carrying separate sentences. Thus, McCoy is unable to collaterally attack all of the judgments against him in one petition for post-conviction relief.

¶ 4. Because McCoy fails to separate his claims for relief by filing a separate motion for each of the judgments against him, this Court must dismiss McCoy’s motion for post-conviction relief without prejudice, as it does not fulfill the statutory requirements of Mississippi Code Annotated section 99-39-9(2).

¶ 5. THE APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY DENYING POST-CONVICTION RELIEF IS DISMISSED WITHOUT PREJUDICE. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

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


text:
    Cedric WATSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-KA-01422-COA.
    Court of Appeals of Mississippi.
    Nov. 7, 2006.

      David Fitzgerald Linzey, attorney for appellant.
    Office of the Attorney General, by John R. Henry, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. On June 11, 2004, Cedric Watson was arrested for possession of cocaine. He was convicted and sentenced to life in prison by the Circuit Court of Lincoln County, Mississippi. Watson alleges that the trial court erred in not granting a mistrial and for failing to direct a verdict in his favor on account of an alleged discrepancy in the weight of the cocaine seized. Aggrieved by the decision, Watson appeals. Finding no error, we affirm.

FACTS

¶ 2. Watson was convicted for possession of cocaine on June 20, 2005. The facts are not in dispute; however, he contends that the prosecution was in violation of Rule 404(b) of the Mississippi Rules of Evidence when, on cross-examination, Officer John Douglas was asked why Watson had previously been an informant. Watson had previously been an informant because of an earlier arrest and he alleges that this questioning was improper because it concerned a prior bad act and that it was being used to show that he acted in conformity therewith. The prosecution argued that the defense opened the door to this line of questioning when it asked Officer Douglas about Watson’s work as a confidential informant.

¶ 3. The crime laboratory found the weight of the cocaine to be 6.7 grams and the officer’s report from the field test stated that 3.03 grams had been seized. Watson asserts that the trial court erred in refusing to direct a verdict in his favor.

¶ 4. Aggrieved by the decision, Watson appeals. He presents the following issues for this Court’s review: (1) whether the circuit court erred in not declaring a mistrial because of the prosecution’s questioning of Officer Douglas; (2) whether the court erred in refusing to grant a directed verdict because of the inconsistency between the field report and the lab report.

STANDARD OF REVIEW

¶ 5. The standard of review for denial of a motion for mistrial is abuse of discretion. Walton v. State, 806 So.2d 333, 334(¶ 4) (Miss.Ct.App.2002) (citing Gossett v. State, 660 So.2d 1285, 1290-91 (Miss.1995)). Whether to grant such a motion for a mistrial is within the sound discretion of the trial court. Id. (citing Ladner v. State, 584 So.2d 743, 753 (Miss.1991)). “[W]hen an objection is sustained, and the trial judge admonishes the jury to disregard the statement, this Court will usually find no error, absent unusual circumstances.” Id. (quoting Pulphus v. State, 782 So.2d 1220, 1223(¶ 10) (Miss.2001)).

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

ISSUES AND ANALYSIS

I. Whether the circuit court erred in refusing to declare a mistrial because of the prosecution’s questioning of Officer Douglas.

¶ 7. Watson argues that the prosecution violated Rule 404(b) of the Mississippi Rules of Evidence. We disagree. He claims that this transpired when the prosecution asked Officer John Douglas of the Brookhaven Police Department why Watson had been used as an informant in the past. The defense must be responsible for “opening the door” before the State is entitled to enter. McGee v. State, 853 So.2d 125, 131(¶ 13) (Miss.Ct.App.2003). After reviewing the record, we find that the defense clearly opened the door to this line of questioning by asking Officer Douglas if Watson had worked as an informant in the past and whether or not the department had successful results. Thus, the trial court did not err in refusing to declare a mistrial. In addition, the trial court instructed the jury not to consider this testimony in any way when determining whether or not Watson is guilty. This issue is without merit.

II. Whether the court erred in refusing to grant a directed verdict because of the inconsistency of the field report and the lab report.

¶ 8. Viewing the evidence introduced at trial in a light most favorable to the State and the guilty verdict, there is sufficient evidence to overcome Watson’s motions for a directed verdict and JNOV. This Court is not allowed to “pass upon the credibility of witnesses and, where the evidence justifies a verdict, it must be accepted as having been found worthy of belief.” Davis v. State, 568 So.2d 277, 281 (Miss.1990). Issues concerning the weight and credibility of evidence are to be determined by a jury. Harveston v. State, 493 So.2d 365, 370 (Miss.1986). In the case at bar, the jury heard the testimony of the witnesses and made a decision based upon what they heard. The jury decided how much emphasis to place on the discrepancy between the two reports. We are in no position to disturb its finding. Therefore, this issue is without merit.

¶ 9. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF COCAINE AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

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


text:
    Kimberly A. REEVES, Individually and on behalf of the wrongful Death Beneficiaries and Survivors of Alexandra Reeves; Kimberly A. Reeves, Natural Guardian and Parent of Morgan Reeves; Alex Shanks, Jr., Individually and on behalf of the wrongful Death Beneficiaries and Survivors of Alex Shanks, Appellants, v. MISSISSIPPI DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 2005-CA-00814-COA.
    Court of Appeals of Mississippi.
    Nov. 7, 2006.

      Paul Anderson Koerber, Jackson, attorney for appellants.
    Eugene M. Harlow, Laurel, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Following a collision at the intersection of U.S. Highway 45 and Mississippi Highway 145, which resulted in the death of Alexandra Reeves and Alex Shanks, Kimberly A. Reeves, Jerry Reeves, and Alex Shanks, Jr. (collectively referred to as “Reeves”) filed a wrongful death and personal injury action against the Mississippi Department of Transportation (MDOT) in the Circuit Court of Clarke County. After a trial, the court found that the MDOT was immune from liability. Aggrieved by the court’s decision, Reeves appeals. They assert the following issues for this Court’s review: (1) whether the trial court erred in holding that the MDOT was immune from suit; (2) whether the trial court erred in holding that the MDOT had insufficient notice of a dangerous condition and/or intersection; and (3) whether the trial court erred in holding that Edward Carter, Jr. was the sole intervening and superceding act of negligence. Finding no error, we affirm.

FACTS

¶ 2. On June 15, 2000, at approximately 12:35 p.m., in Clarke County, Mississippi, Kimberly Reeves was traveling in a northerly direction on U.S. Highway 45 towards Meridian, Mississippi; Kimberly’s minor children, Morgan and Alexandra, were traveling with her. Edward Carter, Jr. was traveling in a southbound direction on Mississippi Highway 145 with two passengers: his friend, Alex Shanks, and his grandson, Lakendrick Carter. It was Carter’s first time to travel on this portion of Mississippi Highway 145, since the construction of the four-lane U.S. Highway 45 and the conversion of the old highway into Mississippi Highway 145. When Carter reached the intersection of Mississippi Highway 145 with U.S. Highway 45, he failed to obey the stop sign, and he crossed over the southbound lane of U.S. Highway 45. Once Carter reached the median, he failed to yield to northbound traffic on U.S. Highway 45, and he collided with the driver’s side of Kimberly’s vehicle. The collision thrust Kimberly’s vehicle into another lane, causing it to collide with another vehicle.

¶ 3. The collision ejected Kimberly and Alexandra from their vehicle, and they both received serious injuries. Alexandra, who was then two and one-half years old, died nine days after the accident. Shanks, who was seventy-one at the time of the accident, was also seriously injured. As a result of his injuries, he also died several days after the accident.

¶ 4. On December 12, 2001, Reeves filed a wrongful death and personal injury action against the MDOT in the Circuit Court of Clarke County. Reeves asserted that the MDOT breached its duty to design, construct, and maintain the subject roadways, including the traffic control devices, in a reasonably safe condition. Reeves further asserted that the MDOT knew of the dangerous condition of the subject intersection, but failed to provide reasonable safety features to alleviate or remove the dangerous condition. The MDOT maintained that Carter’s failure to yield was the sole cause of the accident. The MDOT also maintained that it was immune from liability pursuant to the provisions of Mississippi Code Annotated section 11-46-9(1) (Rev.2002).

¶ 5. A bench trial was held on December 13-15, 2004. During the trial, Carter testified that it was sunny and dry on the day of the accident, and that he had not been drinking or taking any medication that day. He further testified that he and Shanks were engaged in conversation as he approached the subject intersection. Carter remembered traveling through a “little curve” before the intersection, but did not remember seeing a “Curve Ahead” warning sign, a “Junction 45” sign, or a “Stop Ahead” sign. Carter testified that once he noticed the stop sign he was “right up on it” and was unable to stop. According to Carter’s testimony, he was driving the speed limit, 55 miles per hour, or slightly less, when he reached the intersection.

¶ 6. Officer Harrison Cook of the Mississippi Highway Patrol investigated the accident. He testified that Carter was cited for failure to yield the right-of-way. Officer Cook also testified that Carter admitted that he ran the stop sign and failed to yield the right of way in the median to the northbound traffic of U.S. Highway 45.

¶ 7. Sheriff. Todd Kemp of the Clarke County Sheriffs Department testified that accidents are a normal occurrence and are expected for a period of time after the opening of a new roadway. In order to warn the public about the hazards of the newly constructed U.S. Highway 45, Sheriff Kemp participated in a press conference organized by Edwin “Sharpie” Smith, Assistant District Maintenance Engineer for the MDOT, on July 23,1999. According to Sheriff Kemp’s records, sixteen accidents occurred at the intersection of U.S. Highway 45 and Mississippi Highway 145 from July 27, 1999 to June 15, 2000. Sheriff Kemp testified that the majority of those accidents were similar to the accident that occurred in this case. Sheriff Kemp further testified that, sometime prior to the accident in this case, he became concerned about the number of accidents at the intersection. He maintained that he voiced his concerns to the MDOT “on many occasions” by instructing his office to contact Smith’s office and to request that they “do something about [the] intersection.” Nonetheless, Sheriff Kemp could not recall when the MDOT was notified, who notified them, or how many times they were notified. Furthermore, he admitted that the dispatch records did not reflect any calls from the Clarke County Sheriffs Office to the MDOT. Sheriff Kemp also testified that when he did speak with Smith about the accidents at the intersection they both agreed that the accidents were caused by driver error, i.e., people not yielding to traffic on U.S. Highway 45.

¶ 8. Smith testified that prior to the Reeves accident, he was not aware of an unusually high number of accidents at the intersection. He further testified that the MDOT knew of three or four accidents at the intersection, including the accident in this case, since the opening of the intersection on July 27, 1999. Smith opined that the accidents were occurring because drivers were not paying attention and were failing to yield the right of way.

¶ 9. On March 17, 2005, the circuit court entered a judgment finding that Carter’s negligence was the sole and proximate cause of the accident and that the MDOT was immune from liability under Mississippi Code Annotated section 11 — 46—9(l)(b), (d), (v), and (w). Although the court found that the intersection was unreasonably dangerous due to the high number of accidents, the court also found that Reeves failed to prove that the MDOT knew or should have known of the high number of accidents or that the accidents were caused by a dangerous condition at the intersection. Aggrieved by the court’s decision, Reeves appeals.

STANDARD OF REVIEW

¶ 10. Pursuant to Mississippi Code Annotated section 11-46-13(1) (Rev.2005), the trial court sits as the finder of fact in an action under the Mississippi Tort Claims Act. The findings of a trial court judge are afforded the same deference as the findings of a jury. Miss. Dep’t of Transp. v. Johnson, 873 So.2d 108, 111(¶8) (Miss.2004) (citing Bradley v. Tishomingo County, 810 So.2d 600, 602-3(¶ 11) (Miss.2002)). Consequently, the trial court’s findings will not be disturbed on appeal unless the judge abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Jones v. Miss. Transp. Comm’n, 920 So.2d 516, 518(¶ 3) (Miss.Ct.App.2006) (citing Miss. Dep’t of Trans. v. Trosclair, 851 So.2d 408, 413(¶ 11) (Miss.Ct.App.2003)). We will not reverse the findings of a circuit court when they are supported by substantial, credible, and reasonable evidence. Id. (citing Donaldson v. Covington County, 846 So.2d 219, 222(¶ 11) (Miss.2003)).

ISSUES AND ANALYSIS

I. Whether the trial court erred in holding that the MDOT was immune from suit.

II. Whether the trial court erred in holding that the MDOT had insufficient notice of a dangerous condition and/or intersection.

¶ 11. Under these two assignments of error, Reeves asserts that the trial court erred in finding that the MDOT was immune from liability pursuant to Mississippi Code Annotated section ll-46-9(l)(v)(w). Mississippi Code Annotated section 11-46-9(l)(v) (Rev.2002) provides in relevant part that a governmental entity and its employees acting within the scope of their employment are immune from liability for any claim:

[ajrising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against.

Mississippi Code Annotated section 11-46-(9)(l)(w) likewise provides immunity for claims:

[ajrising out of the absence, condition, malfunction or removal by third parties of any sign, signal, warning device, illumination device, guardrail or median barrier, unless the absence, condition, malfunction or removal is not corrected by the governmental entity responsible for its maintenance within a reasonable time after actual or constructive notice.

Thus, whether the MDOT is immune from liability depends upon whether the MDOT had actual or constructive notice that there was a dangerous condition at the subject intersection.

¶ 12. Reeves maintains that the evidence “firmly established” that the MDOT had actual notice that the intersection of Mississippi Highway 145 and U.S. Highway 45 posed an unreasonably dangerous condition to motorists. In support of this position, Reeves cites Sheriff Kemp’s testimony that, prior to the accident on June 15, 2000, he knew that the subject intersection posed an unreasonable danger to motorists and that additional warning devices would have made the intersection safe. Reeves further cites Sheriff Kemp’s testimony that, more than a month prior to the Reeves accident, he voiced his concerns about the intersection to the MDOT.

¶ 13. In finding that the MDOT did not have notice of a dangerous condition at the intersection, the trial court noted that Sheriff Kemp could not remember exactly when he personally informed the MDOT of his concerns regarding the intersection. The trial court further noted Sheriff Kemp’s testimony that, after the Reeves accident, he spoke with Smith about the intersection, and they both agreed that the cause of the accidents was driver error and failing to yield to traffic on U.S. Highway 45. The trial court also relied on Smith’s testimony that the MDOT knew of three to four accidents, including the accident in this case, since the opening of the intersection on July 27, 1999. According to Smith, out of those three or four accidents, none were perceived to have been caused by roadway problems. Smith also testified that he did not remember having any conversations with Sheriff Kemp about the sheriffs concerns regarding the intersection prior to the Reeves accident. He further insisted that if such a conversation had taken place, then he would have remembered it.

¶ 14. In light of the aforementioned testimony, as well as the fact that the dispatch records did not reflect any calls from the Clarke County Sheriffs Office to the MDOT, we conclude that credible evidence supports the trial court’s finding that Reeves failed to prove that the MDOT had notice of a dangerous condition. Consequently, we also find that the trial court did not err in determining that the MDOT was immune from liability. This issue is without merit.

III. Whether the trial court erred in holding that Carter was the sole intervening and superceding act of negligence.

¶ 15. After determining that the MDOT was immune from liability, the court below addressed the issue of causation and determined that Carter’s negligence was the sole proximate cause of the accident. Because we find that the trial court did not err in determining that the MDOT was immune from liability, it is unnecessary to address whether the MDOT should be assigned fault for contributing to the accident. Therefore, this issue is without merit.

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

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

      . The MDOT was the only named defendant in the complaint. Nonetheless, on February 3, 2004, the circuit court entered an agreed order amending the style of the case to substitute the Mississippi Transportation Commission as the real party defendant and to remove the MDOT as a party defendant.

      . Mississippi Highway 145 was formerly known as U.S. Highway 45, a two-lane highway which was the primary means of travel between Meridian, Clarkdale, and Quitman, Mississippi. Prior to the opening of the new four-lane U.S. Highway 45, the old U.S. Highway 45 was redesigned and renamed Mississippi Highway 145. In order to appropriately intersect the two highways, the MDOT relocated a portion of Mississippi Highway 145 and designed the relocated portion with two curves leading into the intersection with U.S. Highway 45. The intersection of the two highways was opened on July 27, 1999.


author: GRIFFIS, J.,

text:
    Diane FORREST, Appellant, v. Kendall McCOY, Appellee.
    No. 2005-CP-01610-COA.
    Court of Appeals of Mississippi.
    Nov. 7, 2006.
    Diane Forrest (Pro Se), attorney for appellant.
    Bill J. Barnett, attorney for appellee.

      Before KING, C.J., Southwick, Irving, and Griffis, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Diane Forrest brought a petition for child support against Kendall McCoy. McCoy filed a counterclaim for modification of visitation. The chancellor dismissed both claims. Forrest appeals and argues the chancellor erred in finding there was no material change in circumstances. We find error. We reverse and remand for further proceedings.

FACTS

¶ 2. On December 2, 1988, Forrest and McCoy were granted an irreconcilable differences divorce. They had a one-year-old son named Jason. Forrest and McCoy signed a “Child Custody and Property Settlement Agreement.” It provided that McCoy would have no contact with Jason, and McCoy would pay no child support.

¶ 3. At the time of their divorce, neither Forrest nor McCoy were employed. Forrest eventually became a nurse. McCoy is now employed with the United States Postal Service.

¶ 4. Despite their agreement to the contrary, Forrest allowed McCoy and his family visitation with Jason. The visitation, however, was less than what courts in this state recognize as standard. McCoy even paid some support for Jason through the years. Rather than a monthly payment to Forrest, McCoy’s support came in the form of cash for Christmas and. Jason’s birthdays, as well as intermittent money for Jason’s scouting and church trips. Through the years, Forrest suggested they modify the agreement to allow court ordered visitation and child support. McCoy refused each time, saying he would rather have a “non-binding” verbal agreement than a court-ordered one.

¶ 5. Forrest quit her job to take care of her new husband when he became disabled. She asked McCoy to provide health insurance for Jason. When he refused, she filed a motion to modify child support on October 19, 2004. She asked for back child support as well as future child support payments. McCoy asked for joint custody or, in the alternative, for a modification of visitation.

¶ 6. The chancellor dismissed both petitions.

STANDARD OF REVIEW

¶ 7. A chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. Sanderson v. Sanderson, 824 So.2d 623, 625(¶ 8) (Miss.2002). This Court will not disturb the findings of a chancellor when supported by substantial credible evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Id. at 625-26(¶ 8). Legal questions are reviewed de novo. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721(¶5) (Miss.2002).

ANALYSIS

¶ 8. Forrest only appeals the chancellor’s decision that denied future child support. She does not appeal the denial of back child support. Forrest asked for an order that included basic monthly support payments, health insurance, payments for medical expenses, and costs of education. She argues that the chancellor erred in finding no material change in circumstances. The chancellor denied future child support, because he found no material change in circumstances.

¶ 9. The “material change in circumstances” test has no application, where there was never an order of child support. Lacey v. Lacey, 822 So.2d 1132, 1140(¶ 36) (Miss.Ct.App.2002). Since McCoy was never ordered to pay child support, the chancellor erred in applying this test. Instead, the chancellor was required to examine the issue as an initial award of child support.

¶ 10. In Lacey, the parties were granted an irreconcilable differences divorce. Id. at 1133(¶ 2). By agreement, the noncustodial mother was to pay no child support. Id. at 1139(¶ 29). The parties made this agreement because the mother was unemployed. Id. The Court upheld the chancellor’s later ruling that required the mother to pay child support. Id. at 1139(¶ 31). The Court noted that not only was no child support awarded in the initial decree, but “the parties did not originally agree that other arrangements would be adequate and child support would not be needed unless the custodial parent became unemployed.” Id. at 1140(1135). This language distinguished the facts in Lacey from an earlier decision in Mississippi Department of Human Services v. Shelby, 802 So.2d 89, 96 (Miss.2001), where the party contracted away child support in exchange for the conveyance of other property or financial arrangement at the time of the divorce. Lacey, 822 So.2d at 1140(¶ 35). Therefore, this Court treated the motion as one for an initial award of child support and affirmed an award in line with the statutory child support guidelines. Id. at 1140(¶ 36).

¶ 11. Here, there is not a financial agreement where the parties could be considered to contract away child support, as in Shelby. Instead, the original agreement did not include a provision for child support, because neither had employment or a source of assets or income. The chancellor was required to treat Forrest’s motion as one for an initial award of child support. Both parents are obligated to provide financially for their children. Lacey, 822 So.2d at 1140(¶ 36). “The statutory presumption is that the non-custodial parent will provide support and it will be in a specific percentage of gross income.” Id. Thus it “shall be a rebuttable presumption” that McCoy, as the non-custodial parent, shall provide his child with fourteen percent of his adjusted gross income. Miss.Code Ann. § 43-19-101(1) (Rev.2004). See also Lacey, 822 So.2d at 1140(¶36).

¶ 12. Since Forrest does not appeal the denial of past child support, on remand, the chancellor shall determine McCoy’s obligation retroactive to the date of filing the petition, October 19, 2004. The statutory percentage covers “the child’s basic, necessary living expenses, namely food, clothing and shelter.” Nichols v. Tedder, 547 So.2d 766, 769 (Miss.1989). McCoy “may also be ordered to pay additional amounts for expenses not covered by the basic award. These include ... out-of-pocket medical and other health-related expenses, life insurance and expenses of a college education.” Deborah H. Bell, Miss. Family Law § 10.07 (1st ed.2005) (citing Nichols, 547 So.2d at 769).

In addition, we have held that it is not error for the trial court to require a parent to furnish an automobile and make mortgage payments as part of an award for the care and maintenance of children. Of course, the foregoing items are not intended to be an exclusive listing, but are merely examples of the real distinction between regular child support and other types of payments for which a parent may become obligated.

Nichols, 547 So.2d at 769 (citations omitted).

¶ 13. We hold that McCoy is required to support Jason. The fact that Forrest and McCoy agreed otherwise is no defense. Parents may not contract away their child’s right to child support. Lawrence v. Lawrence, 574 So.2d 1376, 1381 (Miss.1991). Any such agreement is null and void. Houck v. Ousterhout, 861 So.2d 1000, 1001-02(¶ 8) (Miss.2003). Such benefits belong to the child. Owen v. Wilkinson, 915 So.2d 493, 496(¶ 10) (Miss.Ct.App.2005). “The duty to support children is a continuing duty on both parents and is a vested right of the child.” Id. (quoting Colton v. Colton, 485 So.2d 309, 310 (Miss.1986)). “[C]hildren are not chattels whose rights can be bargained away by parents; such agreements will be evaluated with the best interest of the child as its criteria.” Colton v. Colton, 485 So.2d 309, 310 (Miss.1986). Likewise, a child does not lose his right to child support due to the custodial parent’s delay in seeking child support. Owen, 915 So.2d at 496(¶ 10).

¶ 14. We reverse and remand for further proceedings consistent with this opinion.

¶ 15. THE JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY IS REVERSED AND REMANDED. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLEE.

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


author: KING, C.J.,

text:
    Johnny BOYKIN, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00628-COA.
    Court of Appeals of Mississippi.
    Nov. 7, 2006.
    Michael R. Farrow, Columbus, attorney for appellant.

      Office of the Attorney General, by Scott Stuart, attorney for appellee.
    Before KING, C.J., CHANDLER and ROBERTS, JJ.
   KING, C.J.,

for the Court.

¶ 1. Johnny Boykin was ponvicted by a Lowndes County Circuit Court jury of two counts of child fondling. Boykin now appeals, raising only the issues of legal sufficiency and weight of the evidence. Finding no error, we affirm.

FACTS

¶ 2. On August 30, 2002, C.B. and H.B., Boykin’s fourteen and thirteen-year-old daughters, spent the night at their father’s home as they did every weekend since their parents’ divorce. The girls slept on couches in the living room. The next morning Boykin took his wife, T.J., to work at a nearby convenience store at approximately 5:00 a.m. The girls were still asleep when Boykin and T.J. left. T.J. testified that Boykin stayed at the convenience store reading the newspaper and drinking coffee until approximately 8:00 a.m.

¶ 3. C.B. testified that she woke up that morning to her father pulling down her underwear. She screamed, which awoke her sister, and pleaded with her father that, “dad’s don’t do that.” Both girls testified that Boykin was wearing only his underwear and that his penis was exposed through his underwear. Boykin then ordered the girls to go to his bedroom, where he demanded that they watch him masturbate. The girls, who were sitting on a mattress on the floor, stared out of the bedroom window as Boykin began to masturbate. He then ordered H.B. to lie down. She complied, and Boykin pulled down her underwear and began rubbing his penis on the inside of her thigh. Next, he told C.B. to lie down. She refused, but finally complied after Boykin twice repeated the command and threatened her with a whipping if she did not comply. Boykin then pulled down her underwear and repeated the process. He ejaculated on her buttocks, wiped himself with a towel, and told the girls to go take a shower.

¶ 4. Boykin and the girls went to pick up T.J. from work at about noon. After arriving at T.J.’s place of employment, C.B. went to the bathroom. Boykin followed her in the bathroom and exposed his penis and told C.B. not to tell anyone what had transpired. According to T.J., after leaving the convenient store, the four drove to Starkville to spend the afternoon. T.J. testified that the girls acted like their usual selves the entire day. That evening, all four returned to Boykin’s home and watched television together.

¶ 5. The next morning after the girls’ mother picked them up, C.B. and H.B. told her whaf their father had done. The mother contacted the Lowndes County Sheriffs Department, and Deputy Robert Williams set up an interview with the girls. C.B. and H.B. gave Williams statements detailing the event.

ANALYSIS

I. Quasi-Lindsey Brief

¶ 6. Criminal defendants have a constitutional right to effective' assistance of counsel on a direct appeal. Hughes v. Booker, 220 F.3d 346, 348 (5th Cir.2000). However, this right does not extend to the right to counsel to bring frivolous appeals. Lindsey v. State, (¶ 9), 939 So.2d 743 (Miss.2005) (quoting Smith v. Robbins, 528 U.S. 259, 278, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000)). In Lindsey, the supreme court established a procedure for appellate attorneys who believe that their client does not have an arguable issue to present on appeal. Lindsey provides,

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(l)-(4),(7)
(2) As a part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client’s appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding arrest; (b) any possible violations of the client’s right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing.
(8) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief.
(4) Should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant’s success on appeal.
(5) Once briefing is complete, the appellate court must consider the case on its merits and render a decision.

Id. at (¶ 18). (emphasis added and internal citations omitted).

¶ 7. In the case sub judice, appellate counsel begins his argument by stating, “Counsel for the Defendant has diligently reviewed the record of the trial and is unable, in good conscious and as an officer of the Court, to allege any other issue for this appeal other than the jury verdict is against the overwhelming weight of the evidence.” Counsel then gives a brief summary of the weight of the evidence argument. However, counsel then states the following:

Counsel for the Defendant is of the opinion that the Appellant is unlikely to prevail on appeal. Counsel for the Defendant has scoured the record thoroughly and is unable to locate anything in the record that might arguably support the appeal other than Counsel’s proffered issue of the sufficiency of the evidence. Counsel for the Defendant has forwarded a copy of this brief with advice to the Appellant that he has the right to file a pro se supplemental brief. Counsel for Defendant requests that this Court allow 30 days additional time for the Defendant to file said supplemental brief should he so desire. Turner v. State, 818 So.2d 1186, 1189 (Miss.2001)
Counsel for the Defendant is aware of the requirements for appellate defense counsel for indigent defendants under the provisions of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and of the Mississippi cases applying Anders to appellate defense responsibilities to the defendant. Killingsworth v. State, 490 So.2d 849, 851 (Miss.1986); Turner at [1189]; Lindsey v. State, 2005-KA-00331-SCT[, 939 So.2d 743] (Miss.2005).

Counsel then proceeds with a weight and sufficiency argument.

¶ 8. It appears that appellate counsel was attempting to file a Lindsey brief. However, the procedure outlined in Lind sey is to be followed when counsel is of the opinion that the defendant has no arguable issues supporting an appeal. Id. Counsel’s reliance on Turner and Lindsey is misplaced because, although counsel states that Boykin is unlikely to prevail on appeal, he does present a legal issue on which to base the appeal and then proceeds with an argument on the merits. Accordingly, we decline to treat counsel’s appellate brief as a Lindsey brief, and proceed with an analysis of Boykin’s legal issue presented on appeal.

II. Weight and Sufficiency of the Evidence

¶ 9. This Court must view the evidence in the light most favorable to the State when reviewing a claim of legal sufficiency. Chambliss v. State, 919 So.2d 30, 34 (¶ 12) (Miss.2005). The challenge to legal sufficiency must fail if any rational juror could have found that the State proved every element of the crime charged beyond a reasonable doubt. Id. This Court will only overturn a verdict based on a challenge to the weight of the evidence if the verdict is so contrary to the overwhelming weight of the evidence that allowing it to stand would sanction an unconscionable injustice. Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005).

¶ 10. Boykin was charged with child fondling in violation Mississippi Code Annotated Section 97-5-23(2) (Rev.2000). The elements of the crime are,

Any person above the age of eighteen (18) years, [2] who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, [3] shall handle, touch or rub with hands or any part of his or her body or any member thereof, [4] any child younger than himself or herself and under the age of eighteen (18) years who is not such person’s spouse, with or without the child’s consent, [5] when the person occupies a position of trust or authority over the child.

Miss.Code Ann. § 97-5-23(2). The statute goes on to list a.parent as a person occupying a position of trust over a child, for purposes of the statute. The State presented the following evidence at trial relating to each element. The record does not reflect Boykin’s exact age at the time of the incident, but C.B. testified that he was above the age of eighteen years at the time of the incident. C.B. was fourteen years and H.B. was thirteen years at the time of the incident. Both daughters testified that their father rubbed his penis on their thighs. C.B. also testified that Boykin eventually ejaculated on her. The State, therefore, presented evidence relating to each element of the crime, and we find that a rational juror could have found that Boykin committed child fondling beyond a reasonable doubt.

¶ 11. Boykin’s weight of the evidence argument is primarily based on alleged discrepancies between the statements C.B. and H.B. gave to Deputy Williams and the testimony the girls gave at trial. Only C.B.’s statement was introduced into evidence at trial. In that statement, C.B. says that the fondling began in the living room. However, both girls testified at trial that Boykin had only pulled down C.B.’s underwear in the living room, then directed the girls to go to his bedroom where he began fondling them. Boykin also points out that C.B. said in her statement that Boykin had wiped himself with a blanket, but at trial both girls testified that he wiped himself with a towel.

II12. Witnesses for the defense were Boykin and T.J. T.J. could not testify as to whether or not Boykin committed the crime since she was at work during the incident. Boykin denied ever touching his daughters in a sexual way.

¶ 13. The jury, rather than this Court, is charged with the responsibility of resolving factual disputes. Brown v. State, 934 So.2d 1039, 1044 (¶ 18) (Miss.Ct.App.2006) (citing McNeal v. State, 617 So.2d 999, 1009 (Miss.1993)). The jury was faced with the victims’ account of the crime versus the defendant’s denial of the crime. Since the jury’s verdict was supported by the evidence, Boykin’s weight of the evidence issue must fail.

¶ 14. THE JUDGMENT OF LOWNDES COUNTY CIRCUIT COURT OF CONVICTION OF TWO COUNTS OF CHILD FONDLING AND SENTENCE ON EACH COUNT OF EIGHT YEARS TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

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

      . Due to the sensitive nature of this case, we refer to the victims by their initials only.

      . Lindsey overruled the Turner procedure in part.

      . We do note, however, that Boykin did not file a supplemental brief with the Court.


author: LEE, P.J.,

text:
    Ryan McCLURE, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-02477-COA.
    Court of Appeals of Mississippi.
    Nov. 7, 2006.

      David L. Tisdell, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On September 22, 2004, a jury in the Quitman County Circuit Court found Ryan McClure guilty of sexual battery. The trial court sentenced McClure to eleven years, with six years to serve in the custody of the Mississippi Department of Corrections and five years suspended. McClure then filed a motion for a judgment notwithstanding the verdict or, in the alternative, a motion for a new trial. After the trial court denied his motion, McClure appealed to this Court asserting the following issues: (1) the weight of the evidence did not support the guilty verdict; (2) the trial court erred in admitting alleged prior bad acts of McClure pursuant to M.R.E. 404(b); and (3) his trial counsel was ineffective for failing to object to his statement being entered as evidence.

FACTS

¶ 2. During the night of April 29, 2003, Sarah Smith was in bed attempting to sleep when McClure came into her bedroom. McClure was a family friend and would occasionally babysit Sarah and her siblings. Sarah was sharing the bottom half of a bunk bed with her sister. McClure approached the bed, reached under the covers and inserted his finger into her vagina. Sarah, who was seven years old at the time, testified that it was painful and that McClure told her not to tell anyone. The next afternoon Sarah told her sister what happened and her sister then told their mother. The authorities were called shortly thereafter.

¶ 3. McClure testified that he had gone into Sarah’s room to look for the family’s dog at the request of Sarah’s mother. McClure stated that he felt around on the bed where Sarah was sleeping but did not find the dog there. McClure was seventeen years old at the time.

DISCUSSION

I. DID THE WEIGHT OF THE EVIDENCE SUPPORT THE GUILTY VERDICT?

¶ 4. In his first issue on appeal, McClure asserts that the trial court erred in failing to grant his motion for a JNOV or, in the alternative, a hew trial as the weight of the evidence did not support the guilty verdict. Although McClure states that the weight of the evidence did not support the verdict, he clearly argues the legal sufficiency of the evidence. Thus, we look to our standard of review concerning challenges to the sufficiency of the evidence. In reviewing the sufficiency of the evidence, all evidence supporting the guilty verdict is accepted as true, and the State must be given the benefit of all reasonable inferences that can be reasonably drawn from the evidence. Bell v. State, 910 So.2d 640, 646(¶ 16) (Miss.Ct.App.2005). Furthermore, it is well-settled .law that the jury determines the credibility of witnesses and resolves conflicts in the evidence. Evans v. State, 725 So.2d 613, 680-81 (¶ 293) (Miss.1997).

¶ 5. According to Mississippi Code Annotated Section 97 — 3—95(l)(d) (Rev.2000), a person is guilty of sexual battery “if he or she engages in sexual penetration with ... [a] child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child.” “Sexual penetration” includes “any penetration of the genital or anal openings of another person’s body by any part of a person’s body, and insertion of any object into the genital or anal openings of another person’s body.” Miss.Code Ann. § 97-3-97 (Rev.2000).

¶ 6. McClure argues that the State failed to produce evidence that he penetrated Sarah by inserting his finger into her vagina or anal opening. Although the only specific evidence that the penetration occurred was from Sarah, the supreme court has held that a victim’s uncorroborated testimony is sufficient to support a guilty verdict if the testimony is not contradicted or discredited by other evidence. Vaughan v. State, 759 So.2d 1092, 1098(¶ 18) (Miss.1999). McClure produced ho evidence to discredit Sarah’s testimony. In fact, the testimony of Sarah’s sister and Carol Langendoen, a forensic interviewer and social worker, bolstered Sarah’s testimony. Sarah’s sister testified that Sarah told her about the battery the day after it occurred. Langendoen interviewed Sarah shortly after the battery and testified that Sarah’s information was consistent with a child who had been sexually abused. The jury found those witnesses more credible than McClure’s story concerning his search for the family dog. We find that there was sufficient evidence for the jury to find McClure guilty of sexual battery. This issue is without merit.

II. DID THE TRIAL COURT ERR IN ADMITTING ALLEGED PRIOR BAD ACTS?

¶ 7. In his second issue on appeal, McClure argues that the trial court erred in admitting alleged prior bad acts of his into evidence. McClure claims that this evidence should have been excluded under M.R.E. 404(b) because its probative value was substantially outweighed by the danger of unfair prejudice. The specific bad acts McClure refers to are prior instances where McClure touched Sarah in an inappropriate manner. A trial court’s decision regarding the relevancy of certain evidence will not be reversed unless there is a clear, abuse of discretion. Stallworth v. State, 797 So.2d 905, 910(¶ 15) (Miss.2001).

¶ 8. Generally, evidence of a crime or wrong other than the one for which the accused is being tried is not admissible. See M.R.E. 404(b). However, there is an exception for this type of evidence: to show “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” M.R.E. 404(b). Furthermore, “evidence of substantially similar sexual acts with the same person are properly admitted in cases of sexual battery involving small children.” Allen v. State, 749 So.2d 1152, 1156(¶ 8) (Miss.Ct.App.1999); see also Hosford v. State, 560 So.2d 163 (Miss.1990); Woodruff v. State, 518 So.2d 669 (Miss.1988).

¶ 9. The prior bad acts of McClure include two instances which occurred a few months prior to the one in the bedroom on April 29. On one occasion, McClure asked to follow Sarah into the bathroom and asked to touch her. On another, Sarah was sitting in McClure’s lap when he began rubbing her breast and attempted to pull his pants down. This type of testimony is admissible and we cannot find that the trial court abused its discretion in allowing the jury to hear it. This issue is without merit.

III. WAS McCLURE’S TRIAL COUNSEL INEFFECTIVE?

¶ 10. In his last issue on appeal, McClure argues that his trial counsel was ineffective for failing to object to McClure’s statements he made to law enforcement being entered into evidence. For McClure to successfully prove ineffective assistance of counsel, he must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 11. McClure’s statements consist of his version of the incident on April 29 as well as the two prior interactions with Sarah. These statements supported his theory of the case, namely that he was looking for the dog on the bed and touched Sarah accidentally. We cannot find any deficient performance in this instance.

¶ 12. We note that McClure thinks that his trial counsel’s failure to object to admitting his statement into evidence allowed the jury to consider the prior bad acts. However, his trial counsel did object to allowing evidence of these prior bad acts as we have already found no error concerning the admissibility of these acts.

¶ 13. THE JUDGMENT OF THE QUITMAN COUNTY CIRCUIT COURT OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF ELEVEN YEARS, WITH SIX YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FIVE YEARS SUSPENDED, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO QUITMAN COUNTY.

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

      . The Court of Appeals declines to identify the minor victims of sexual crimes; therefore, certain names have been changed.