author: DICKINSON, Justice,

text:
    Charles MOORE, Jr. v. STATE of Mississippi.
    No. 2005-KA-00610-SCT.
    Supreme Court of Mississippi.
    April 27, 2006.
    Rehearing Denied July 27, 2006.

      Lori Nail Basham, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before SMITH, C.J., CARLSON and DICKINSON, JJ.
   DICKINSON, Justice,

for the Court.

¶ 1. Following his conviction of Aggravated Assault, Burglary of a Dwelling, and Rape, Appellant presents three suggestions of error for our careful review. The first is whether he knowingly and voluntarily waived his Miranda rights and his right to refuse a search of his home. The second is whether evidence collected from his home after he was arrested (allegedly without a warrant) on an unrelated charge should be excluded as “fruit of the poisonous tree.” The final issue raised is whether the convictions were against the overwhelming weight of the evidence.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. Sometime around 4:30 p.m. on June 21, 2003, Charles Moore, Jr., (“Moore”) unsuccessfully attempted to call the home of his friend Chris Parker (“Parker”). At 5:00 p.m., Moore reached Parker on his cell phone. Parker informed Moore that he was in Atlanta and would be staying overnight. That evening at 10:30 p.m., Moore, Shane MeCowin (“McCowin”) and Andy Vail (“Vail”) arrived at a club in Tupelo and started drinking heavily. After the club closed at 2:00 a.m., the three men and two women from the club went to Vail’s trailer where they drank for approximately two hours. Moore left at 4:30 a.m. and claims he drove to his home in Fulton, Mississippi, sat in his car for half an hour drinking whiskey and smoking cigarettes, and then went to bed.

¶ 3. On that same evening, L.D.T. (“the victim” or “L.D.T.”), spent the night at Parker’s house where two of her friends, Jennifer Bass (“Bass”) and Janie Goff (“Goff’) were babysitting Parker’s children. At approximately 2:30 a.m., L.D.T. went to bed on the living room couch. Some time around daylight, she was awakened by someone who was suffocating her. Her attacker was saying, “Die, bitch, die.” When L.D.T. clawed her attacker’s neck, the man stabbed her with an unidentified tool on both sides of her neck. The attacker told her he would kill her and the children in the house if she continued resisting. The man then vaginally and anally raped L.D.T., often talking to her during the attack.

¶ 4. When the attacker grabbed L.D.T.’s throat from behind to facilitate penetrating her orally, his hand slipped on the blood. He slammed L.D.T. onto the couch, recovered her with the comforter, and told her that if she peeked out from beneath the covers, he would kill everyone in the house. The attacker then left.

¶ 5. Bass and Goff drove L.D.T. to the hospital where the medical staff treated her stab wounds and prepared a rape kit. The Mississippi Crime Laboratory later tested the seminal fluids found on vaginal swabs from L.D.T., but the findings were inconclusive as to whether Moore was the source. L.D.T. was discharged from the hospital that evening.

¶ 6. When law enforcement officers found a phone number on Parker’s caller ID which indicated a June 21, 2003 call from Moore’s phone, they questioned Moore on the evening of June 22, 2003. Eight days later, Officer Scotty Reedy (“Officer Reedy”) and Officer Truman Carter (“Officer Carter”) arrested Moore at his workplace on a misdemeanor warrant for a bad check written in 1996. The officers drove Moore to his house, had Moore sign a consent to search form, and retrieved a set of clothes and a belt from Moore’s bedroom. The Mississippi Crime Lab later conducted DNA testing on blood found on this belt and determined the stains were uniquely consistent with LD.T.’s blood.

¶ 7. Upon completion of the search, the officers transported Moore to the Lee County Sheriffs Department and booked him on the bad check charge. In the initial interview with the officers at the station, Moore signed a paper waiving his Miranda rights, but he made no confession. Although Moore provided a statement during a second interview in which he admitted raping L.D.T., he now argues he was simply repeating information about the rape told to him by his friends McCow-in and Vail. Moore claims he confessed only because Officer Terry Jones (“Officer Jones”) threatened him after he gave the first statement.

¶ 8. On February 4, 2005, a Lee County jury found Moore guilty of Aggravated Assault, Burglary of a Dwelling, and Rape. He was sentenced to serve twenty years on the aggravated assault conviction, ten years on the burglary of a dwelling conviction, and forty years on the rape conviction, with the three sentences to run consecutively. Following denial of his Motion for Judgement of Acquittal JNOV or in the Alternative for a New Trial, Moore timely filed this appeal.

DISCUSSION

I. Whether the trial court improperly denied Moore’s motion to suppress evidence.

¶ 9. In reviewing the denial of a motion to suppress, we must determine whether the trial court’s findings, considering the totality of the circumstances, are supported by substantial credible evidence. Price v. State, 752 So.2d 1070(¶ 9) (Miss.Ct.App.1999) (citing Magee v. State, 542 So.2d 228, 231 (Miss.1989); Nicholson v. State, 523 So.2d 68, 71 (Miss.1988); Ray v. State, 503 So.2d 222, 224 (Miss.1986)). Where supported by substantial credible evidence, this Court shall not disturb those findings. Ray, 503 So.2d at 223-24.

1. Legality of the Misdemeanor Arrest

¶ 10. Moore argues that, at the time of the search, he was in custody following an illegal arrest. As such, he argues, any evidence collected during that search was “fruit of the poisonous tree” and should have been suppressed.

¶ 11. Officers Reedy and Carter, who claim they had a warrant, arrested Moore on a misdemeanor charge of writing a $4.19 bad check to Wal-Mart in 1996. The officers discovered the outstanding warrant by running Moore’s name through the Justice Court database. The officers went to Moore’s place of employment and informed him that he was being arrested on a warrant for a bad check. After arresting Moore, the officers transported him to his apartment where the search took place.

¶ 12. On January 10, 2005, Moore filed a Motion to Compel Discovery in which he requested a copy of the misdemeanor warrant. At a January 28, 2005, pre-trial hearing, Moore again requested that the State produce the original misdemeanor arrest warrant. The Justice Court file included an Affidavit, a copy of the $4.19 check to Wal-Mart, a computerized arrest form, and a disposition sheet — but no warrant. Because the State could not produce a copy of the misdemeanor warrant upon request, Moore claims that under Mississippi Code Annotated Section 99-3-7(1) and (2) (1972), his arrest was illegal. Section 99-3-7 provides:

(1) An officer or private person may arrest any person without a warrant, for an indictable offense committed, or a breach of the peace threatened or attempted in his presence; or when a person has committed a felony, though not in his presence; or when a felony has been committed, and he has reasonable grounds to suspect and believe the person proposed to be arrested to have committed it; or on a charge, made upon reasonable cause, of the commission of a felony by the party proposed to be arrested. And in all cases of arrest without warrant, the person making such arrest must inform the accused of the object and cause of the arrest, except when he is in the actual commission of the offense, or is arrested on pursuit.
(2) Any law enforcement officer may arrest any person on a misdemeanor charge without having a warrant in his possession when a warrant is in fact outstanding for that person’s arrest. In all such cases, the officer making the arrest must inform such person at the time of the arrest the object and cause therefor. If the person arrested so requests, the warrant shall be shown to him as soon as practicable.

Miss.Code Ann. § 99-3-7(1) and (2) (1972) (iemphasis added).

¶ 13. The statute clearly requires a warrant for the misdemeanor arrest. Thus, the Circuit Court was presented with a question of fact, that is, whether the officers had a warrant when they arrested Moore. The fact that the warrant could not later be produced is not conclusive proof that no warrant existed, nor does it necessarily mean the officers were not in possession of the warrant when they arrested Moore. See Torrence v. State, 283 So.2d 595, 597 (Miss.1973).

¶ 14. The Circuit Court was required to weigh the evidence that no warrant existed against other evidence that it did. Moore claims he never saw a warrant, and, when requested in discovery, no warrant could be produced. On the other hand, the officers testified they had an arrest warrant in their possession at the time of the arrest. According to Officer Reedy, after running a routine check of the Justice Court database, he located the physical misdemeanor warrant for Moore in the police department’s file at the jail. Officers Reedy and Carter claim that, with warrant in hand, they went to Moore’s workplace, informed him he was being arrested because of the bad check, and showed him the actual warrant.

¶ 15. Additionally, the Justice Court file included a Justice Affidavit concerning the bad check charge, a copy of the $4.19 check signed by Moore and issued to Wal-Mart, and a computerized arrest form. The arrest form indicated in two places that a warrant had been issued for Moore’s arrest on the bad check charge. This evidence, along with the testimony of Officers Reedy and Carter, constitutes substantial credible evidence which supports the Circuit Court’s findings.

¶ 16. Poor record keeping does not erase the existence of the warrant. The trial court’s denial of Moore’s motion to exclude the items seized from his home was supported by substantial credible evidence, and we will not disturb those findings. As such, Moore’s arrest was not illegal, and the items seized from his house after his arrest cannot be excluded as “fruit of the poisonous tree.” This portion of Moore’s first assignment of error is without merit.

2. Voluntariness of the Consent

¶ 17. Moore says he did not voluntarily consent to the search of his home. Thus, he argues, the evidence collected pursuant to this non-consensual search— specifically the blood-stained belt — should have been suppressed by the trial court.

¶ 18. The United States Constitution and the Mississippi State Constitution guarantee citizens the right to be secure in their persons, houses, and possessions against unreasonable and warrantless searches and seizures. U.S. Const. Amend IV; Miss. Const. Art. 3, § 23. While the warrant clauses of these provisions express the general rule that law enforcement must procure a warrant based on probable cause before engaging in a search, the rule has several exceptions. The pertinent one to this discussion is the consent exception. Voluntary consent eliminates the warrant requirement. Morris v. State, 777 So.2d 16, 26 (Miss.2000).

¶ 19. With respect to the consent exception to the warrant requirement, this Court has established the following rule: “[i]n order for there to be a valid consent to a search not otherwise authorized by law, ... the person searched [must] be aware he has the legal right to refuse.” Penick v. State, 440 So.2d 547, 550 (Miss.1983) (citing Smith v. State, 133 Miss. 730, 98 So. 344, 345 (1923)). Consent is valid only where a person knowingly and voluntarily waives the right not to be searched. Penick, 440 So.2d at 551. Knowledgeable consent is consent where the defendant, being cognizant of his rights in the property, knows of his right to refuse. Id. at 549-50.

¶ 20. In Jones v. State, 607 So.2d 23, 29 (Miss.1991), this Court clarified its rule in Penick and held that, where consent is given, the State is not required to demonstrate knowledge; rather, “the burden [is] on the defendant to show impaired consent or some diminished capacity.” Id. Whether a person voluntarily consents to a search “is a question of fact to be determined by the total circumstances.” Id. at 27. Those considerations include:

whether the circumstances were coercive, occurred while in the custody of law enforcement or occurred in the course of a station house investigation. The court must also look to the individual’s maturity, impressionability, experience and education. Further, the court should consider whether the person was excited, under the influence of drugs or alcohol, or mentally incompetent. If the consent occurred while the defendant was being generally cooperative, the consent is more likely to be voluntary; however, if the defendant agreed and then changed his mind, the consent should be suspect.

Graves v. State, 708 So.2d 858, 863 (Miss.1997) (citing Jones, 607 So.2d at 27). Finally, in Graves, this Court interpreted Jones as limiting Penick’s knowledgeable waiver requirement to cases where the defendant specifically claims he did not have knowledge of the right to refuse. Graves, 708 So.2d at 864.

¶ 21. Moore argues that his consent to the search of his apartment was not knowledgeable and thus cannot be considered a valid waiver of his right against an unreasonable search and seizure. Under this Court’s jurisprudence, Moore has the burden of proving that some impairment or diminished capacity prevented him from knowingly giving his consent. Moore testified he was unaware that the officers could not search his home without a warrant absent a signed consent form. He stated that he thought the officers would “go in and get the clothes anyway.” According to Moore, he did not know he had a right to refuse to sign the consent form when he signed it. Moore claims that Officer Reedy did not read the consent form to him, and he did not read it for himself. As such, Moore claims he did not know, and no one informed him, that he had a right to refuse to sign the consent form. Moore also points out that he only completed an eighth grade education, and he even failed the eighth grade the first time through.

¶ 22. Moore’s testimony starkly contrasts the testimony of Officers Reedy and Carter. Officer Carter testified that after arresting Moore on the misdemeanor warrant, the officers took Moore to his house. No threats or coercive action occurred during the drive over. According to Officer Reedy, he read the consent form to Moore. The consent form stated:

I, [Charles Moore] having been informed of my constitutional right not to have a search made of the premises hereinafter mentioned without a search warrant and of my right to refuse to consent to such a search, hereby authorize [Sgt. Scotty Reedy, Truman Carter] to conduct a complete search of my premises located at [507 S. Cumming St. Fulton, MS]. These officers or agents are authorized by me to take from my premises any letters, papers, materials or other property which they may desire.
This written permission is being given by me to the above named persons voluntarily and without threats or promises of any kind.

Moore signed the form after Officer Reedy read it to him. Officer Carter testified he heard Officer Reedy read the form to Moore, and he witnessed Moore signing the document. In addition, Mike Em-mons, the owner or co-resident of Moore’s house, signed the consent form at approximately the same time as Moore. According to Officer Reedy, Moore was cooperative and even went with the officers to his bedroom where they retrieved his clothes.

¶ 23. Looking at the totality of the circumstances, Moore has failed to prove that his consent was not voluntary or knowledgeable. Moore alleges that because he was in police custody at the time of the search and has only an eighth grade education, he could not have knowingly consented to the search. However, Moore cites no authority which establishes these factors as indicative of lack of knowledge. Moore was not excited, under the influence of drugs or alcohol, mentally incompetent, or especially impressionable. The circumstances of his consent were not coercive. Moore willingly cooperated with the officers, indicating voluntary consent.

¶ 24. A significant factor in this particular case is the conflicting testimony of Moore and the officers as to whether the consent form was read to Moore. As it was in Jones, the only evidence Moore provides “to support his contention [that his consent was not knowledgeable and voluntary] is his own testimony.... The trial judge has sole authority in determining witness credibility. Such a determination should not be overturned without a substantial showing that the trial judge was manifestly wrong.” Jones, 607 So.2d at 28 (citing Mullins v. Ratcliff, 515 So.2d 1183, 1189 (Miss.1987)).

¶ 25. The trial court’s denial of Moore’s motion to suppress the clothes taken during the search was not an abuse of discretion. Moore’s only proof that he did not knowingly waive his right to refuse the search was his own testimony, which the trial court was free to give less weight than the officers’ testimony. The trial court’s findings were certainly supported by substantial credible evidence. Therefore, the trial court’s decision will not be disturbed, and Moore’s first assignment of error on appeal is without merit.

II. Whether the trial court improperly denied Moore’s motion to suppress his confession.

¶ 26. In reviewing the trial court’s denial of a defendant’s motion to suppress a confession, this Court applies “the familiar general rule that since the trial court sits as the fact-finder when determining the issue of whether the accused’s confession has been intelligently, knowingly and voluntarily given, we will only reverse the trial court’s determination of this issue when such determination is manifestly wrong.” Glasper v. State, 914 So.2d 708, 716 (Miss.2005). The determination of “whether a confession is admissible is a finding of fact which is not disturbed unless the trial judge applied an incorrect legal standard, committed manifest error, or the decision was contrary to the overwhelming weight of the evidence.” Thorson v. State, 895 So.2d 85, 115 (Miss.2004) (quoting Lee v. State, 631 So.2d 824, 826 (Miss.1994)).

1. Confession After Arrest

¶27. Moore says his statement given while in custody following an illegal arrest must be suppressed as “fruit of the poisonous tree.” Moore acknowledges, however, that a confession given in such a situation is not per se inadmissible. Coleman v. State, 592 So.2d 517, 521 (Miss.1991). Thus, Moore contends that this Court must assess the statement’s ultimate admissibility by examining the five factors established by the United States Supreme Court in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), and adopted by this Court in Hall v. State, 427 So.2d 957, 959-60 (Miss.1983).

¶ 28. We need not engage in the requested Brown analysis because, as discussed supra, Moore’s arrest was not illegal. Moore gave a statement while he was in custody pursuant to a lawful arrest. As such, Brown and Hall are inapposite, and Moore’s argument that the statement was “fruit of the poisonous tree” consequently fails. See Glasper v. State, 914 So.2d 708, 722 (Miss.2005); Jones, 841 So.2d at 127. This portion of Moore’s second assignment of error is meritless.

2. Freely and Voluntarily Given Waiver of Miranda Rights

¶ 29. Moore argues that his confession should be suppressed because it was not freely and voluntarily given. First, Moore states he did not understand what he was doing when he signed the Miranda waiver. Second, Moore claims he was threatened with bodily injury by a police officer if he did not confess to the crimes.

¶ 30. “Absent a knowing and intelligent waiver of rights, statements made by a suspect while under ‘custodial interrogation’ are inadmissible at trial where prior to making the statements, the suspect was not Miranda warned.” Tolbert v. State, 511 So.2d 1368, 1374 (Miss.1987) (citing Miranda, 384 U.S. at 444-45, 478-79, 86 S.Ct. 1602). “The general rule is that for a confession to be admissible it must have been given voluntarily and not given because of promises, threats or inducements.” Dancer v. State, 721 So.2d 583, 587 (Miss.1998). “[T]he prosecution shoulders the burden of proving beyond a reasonable doubt that the confession was voluntary.” Morgan v. State, 681 So.2d 82, 86 (Miss.1996). “The ‘burden is met and prima facie case made out by testimony of an officer, or other persons having knowledge of the facts, that the confession was voluntarily made without threats, coercion, or offer of reward.’ ” Chase v. State, 645 So.2d 829, 838 (Miss.1994) (quoting Cox v. State, 586 So.2d 761, 763 (Miss.1991)). “The circuit court sits as fact finder when determining voluntariness of a confession, and its determination will not be reversed unless manifestly wrong.” Manix v. State, 895 So.2d 167, 180 (Miss.2005).

¶ 31. According to Moore, when Officer Reedy asked him to talk about what happened on the night of June 21, 2003, Moore responded, “[w]ell what about an attorney?” Officer Reedy then stated, “I’ve got to read you your rights first.” The officer pulled out a piece of paper and read the rights on the first half of the sheet, asked Moore if he understood those rights, and had Moore sign the bottom of the page. After signing, Moore again asked about an attorney, and Officer Reedy said, “[w]ell you just signed away your rights to an attorney.” According to Moore, Officer Reedy did not read to him the second half of the paper titled “Waiver of Rights.” Moore did not read the waiver for himself but relied on Officer Reedy to accurately read it to him in its entirety. During his first statement, Moore said that to the best of his knowledge, he did not rape anyone the night of the crime.

¶ 32. Sometime while waiting in the interrogation room with Officer Jones after giving his initial statement, Moore asked to use the restroom. Moore claims that Officer Jones said, “[i]f you’re not going to cooperate with us, then I’m not going to do anything to help you out. You can sit there and use the bathroom in your pants for all I care.” After Officer Jones finally let Moore use the restroom, Moore says the officer grabbed his shoulder and said, “[y]ou’re going to confess to this. You’re going to cooperate with us. You’re going to do what we tell you to do, because if you don’t I can make sure that you get a bond set so high that you can’t get out, and plus I can also make your stay here very unpleasant.” When Moore said he could only tell them what he had been told by his friends, Officer Jones allegedly said, “[w]ell that’s fine. Just we’ll go over it real quick and then we’ll go back to the interview room and then you can tell Scotty Reedy what you just told me.” Moore says he went over his story, and Officer Jones said, “[tjhat’s fine. Just word it like you were the one that did it.” Moore says he then gave a second statement to the police in which he confessed to the rape, but several times during the interview when the question referred to something about which his friends had not told him, he said “I don’t know” or “I don’t remember.”

¶ 33. Again, Moore’s testimony differs significantly from that of the officers and documents involved. According to the officers, Moore never asked for an attorney. Moore voluntarily waived his Miranda rights after Officer Reedy read the entire whiver to him. Moore marked the box “I have had read to me” and signed the waiver. He acted as though he understood what he was doing. According to the officers, Moore was neither threatened nor promised anything in return for his confession. Before Moore gave his second statement, Officer Reedy again brought Moore’s attention to the waiver, saying, “Charles, you remember when we talked earlier that this little piece of paper I read your rights to you. Remember signing this?” to which Moore responded, “Yeah.”

¶ 34. While the State bears the burden of proving beyond a reasonable doubt that Moore’s confession was voluntary, Morgan, 681 So.2d at 86, the burden is met when there is testimony from officers that the confession was made without threats, coercion, or offers of reward. Chase, 645 So.2d at 838. The State offered evidence from three officers and provided a signed waiver as proof that Moore voluntarily confessed. The trial court had sufficient evidence before it to conclude that the State met its burden of proof. In his Order overruling Moore’s motion to suppress the confession, the trial judge stated, “said statement by the defendant was made by him at a time when he had been fully advised of his Constitutional Rights, and that his statement was not the result of coercion, promises or threats and was fully and voluntarily made after having been advised of his Miranda rights including his right to an attorney.”

¶ 35. As the fact finder when determining whether a confession was voluntary, the circuit court’s determination “will not be reversed unless manifestly wrong.” Manix, 895 So.2d at 180-81 (testimony by officer that defendant voluntarily confessed was enough to affirm trial court’s overruling of defendant’s motion to suppress the confession). The record reveals no basis to conclude the trial court’s decision was manifestly wrong. Therefore, Moore’s second assignment, of error is without merit.

III. Whether the trial court improperly denied Moore’s motion for judgment notwithstanding the verdict or, in the alternative, for a new trial.

¶ 36. In determining whether a jury verdict is against the overwhelming weight of the evidence, the reviewing court “must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Walker v. State, 881 So.2d 820, 831 (Miss.2004) (citing Hubbard v. State, 819 So.2d 1192, 1196 (Miss.2001)). A new trial should only be awarded if “the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction unconscionable injustice.” Esparaza v. State, 595 So.2d 418, 426 (Miss.1992). Bearing in mind this Court’s standard of review, we will examine each of Moore’s convictions as well as Moore’s arguments supporting reversal.

1. Aggravated Assault Conviction

¶ 37. Moore contends the State failed to meet its burden of proof beyond a reasonable doubt as to the aggravated assault charge. Moore points out that the State never offered into evidence a knife or other deadly weapon to prove that Moore caused bodily injury to L.D.T. with a deadly weapon. Thus, Moore says, without production of a deadly weapon, the jury’s verdict on the aggravated assault charge was against the overwhelming weight of the evidence.

¶ 38. Moore’s argument is without merit. The State’s indictment of Moore on the aggravated assault charge alleged that Moore “did wilfully, unlawfully and felo-niously commit an aggravated assault upon [L.D.T.] by attempting to cause, or purposely or knowingly by causing, bodily injury to [L.D.T.], a human being, with a deadly weapon or other means likely to produce death or serious bodily harm, by stabbing [L.D.T.] in the neck.... ” Consistent with the requirements of Mississippi Code Annotated Section 97-3-7(2)(b), the State was not required to show that L.D.T.’s attacker used a knife or other particular weapon commonly thought of as “deadly.” The State properly sought to show that Moore harmed L.D.T. with some “other means”—in this case a “Leather-man” type of tool—likely to produce seriously bodily harm. The State was not required to produce the actual tool, and the jury was free to consider its absence when weighing the evidence and making its determination. See Davis v. State, 909 So.2d 749, 752 (Miss.Ct.App.2005) (sufficient evidence of aggravated assault even though no razor, thought to be the weapon used in the assault, was offered into evidence); Smith v. State, 818 So.2d 383, 386 (Miss.Ct.App.2002) (sufficient evidence of aggravated assault even though no stick, thought to be the weapon used in the assault, was offered into evidence).

¶ 39. Given the victim’s testimony about the stabbing, as well as photographs of the victim’s neck wounds, and accepting as true this evidence which supports the verdict, we hold the verdict was not against the overwhelming weight of the evidence. The trial court did not abuse its discretion by failing to grant Moore’s motion for judgment notwithstanding the verdict or, in the alternative, for a new trial.

2. Burglary Conviction

¶40. Moore also says that the State failed to meet its burden of proof beyond a reasonable doubt as to the burglary charge. According to Moore, the State failed to introduce any physical evidence that Moore broke into Chris Parker’s home or was ever even in the house. The investigation did not turn up Moore’s fingerprints or footprints in the home, and the State did not prove forced entry into the house. Therefore, without this evidence, Moore claims the jury’s verdict on the burglary charge was against the overwhelming weight of the evidence.

¶ 41. Again, Moore’s argument is without merit. His confession and the presence of the victim’s blood on his belt, coupled with L.D.T.’s testimony, demonstrate that he was in Parker’s residence when the crimes occurred. In his Confession, Moore stated that the door to the house was unlocked and that he entered. Notably, the act of opening a closed, unlocked door sufficiently establishes the “breaking” element necessary for a burglary conviction. Smith v. State, 499 So.2d 750, 752-53 (Miss.1986). Accepting as true this evidence which supports the verdict, we hold the verdict was not against the overwhelming weight of the evidence. The trial court did not abuse its discretion by failing to grant Moore’s motion for judgment notwithstanding the verdict or, in the alternative, for a new trial.

3. Rape Conviction

¶ 42. Finally, Moore contends that the State failed to meet its burden of proof beyond a reasonable doubt as to the rape charge. He argues that he fully accounted for his whereabouts when the crime occurred, and he was not at Parker’s residence. Additionally, he asserts the victim could not positively identify her attacker because the room was dark and she was covered by a blanket. Additionally, Moore points out that the seminal fluid collected from the victim’s rape kit could not be matched to Moore. Based on the lack of evidence, Moore states that the jury’s verdict on the rape charge was against the overwhelming weight of the evidence.

¶ 43. Moore’s argument is without merit. The jury was not bound to believe Moore’s alibi testimony. The jury determines the weight and credibility to give witness testimony and other evidence. Johnson v. State, 904 So.2d 162, 167 (Miss.2005). We may not “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).

¶ 44. The victim identified Moore at trial by his voice. Her blood was found on his belt, and he confessed to raping L.D.T. Accepting as true this evidence supporting the verdict, we hold the verdict was not against the overwhelming weight of the evidence. The trial court did not abuse its discretion by failing to grant Moore’s motion for judgment notwithstanding the verdict or, in the alternative, for a new trial.

CONCLUSION

¶ 45. Substantial credible evidence exists to support the trial court’s overruling of Moore’s motions to suppress the clothes retrieved from his home and his confession to the police. As such, this Court will not disturb the trial court’s findings. Accepting as true the evidence supporting the jury’s verdict on all three charges, we hold the trial court did not abuse its discretion in denying Moore’s motion for judgment notwithstanding the verdict or, in the alternative, for a new trial.

¶ 46. COUNT I: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT III: CONVICTION OF RAPE AND SENTENCE OF FORTY (40) YEARS, WITH CONDITIONS, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT I SHALL RUN CONSECUTIVELY WITH SENTENCES IMPOSED IN COUNTS II AND III. SENTENCE IN COUNT II SHALL RUN CONSECUTIVELY WITH SENTENCES IMPOSED IN COUNTS I AND III. SENTENCE IN COUNT III SHALL RUN CONSECUTIVELY WITH SENTENCES IMPOSED IN COUNTS I AND II. APPELLANT SHALL NOT BE ELIGIBLE FOR PAROLE AND APPELLANT SHALL PAY COURT COSTS IN THE AMOUNT OF $1,183.00. APPELLANT SHALL NOT BE ELIGIBLE FOR EARNED TIME ALLOWANCE.

SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY AND CARLSON, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . This rule is stricter than its federal counterpart established by the United States Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218, 234, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The U.S. Supreme Court held that the determination of whether a person validly consented to an otherwise illegal search rests on whether consent was voluntary, not on whether the party knew or was informed of a constitutional right which he then intentionally relinquished. Id. at 226-27, 93 S.Ct. 2041.

      . The five factors are: (1) the giving of the Miranda warnings and the circumstances; (2) the temporal proximity of the arrest and confession; (3) the presence of intervening circumstances; (4) the purpose and flagrancy of the official misconduct; and (5) any other relevant circumstances. Brown, 422 U.S. at 603-04, 95 S.Ct. 2254.

      . The first half of the waiver was titled “You Have The Following Rights” and stated:
      Before We Ask You Any Questions, You Must Understand Your Rights:
      (1) You have the right to remain silent.
      (2) Anything you say can and will be used against you in court.
      (3) You have the right to talk to a lawyer for advice before we ask you any questions and to have them present with you during questioning.
      (4) If you cannot afford a lawyer, one will be appointed for you before questioning, if you wish.
      (5) If you decide to answer questions now without a lawyer present, you still have the right to stop answering at any time.
      (6) You also have the right to stop answering at any time until you talk to a lawyer.

      . The "Waiver of Rights” section stated: "This is a statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.”


source: Caselaw Access Project

license: Public Domain

text:
    Mary JENKINS, Administrator of the Estate of Mildred Woodson, Deceased; Personal Representative of the Wrongful Death Beneficiaries of Mildred Woodson, Deceased; and Individually as the Daughter and Heir at Law of Mildred Woodson, Deceased v. PENSACOLA HEALTH TRUST, INC., A Mississippi Corporation, Owner, d/b/a Greenbough Nursing Center and its Representatives, Agents and all related to such Defendants; Amanda Kirk, A Mississippi Resident, Administrator at Greenbough Nursing Center; (All Unspecified Defendants being Fictitious Parties and Unknown Parties in Interest).
    No. 2005-IA-02342-SCT.
    Supreme Court of Mississippi.
    April 27, 2006.
    Rehearing Denied Aug. 3, 2006.

      Glover A. Russell, Jr., attorney for appellant.
    James P. Streetman, III, Mary Margaret Waycaster, Natchez, attorneys for ap-pellees.
   DICKINSON, Justice,

for the Court.

¶ 1. The question presented in this interlocutory appeal is whether the statute of limitations which has expired on a particular claim of tortious conduct is preempted by the statute of limitations on bringing a wrongful death suit.

FACTS AND PROCEDURAL HISTORY

¶ 2. Mildred Woodson lived at the Greenbough Nursing Center from December 20, 1997 until her death on October 4, 2001. On December 31, 2002, Mary Jenkins, administratrix of the Woodson estate, filed suit against Pensacola Health Trust, Inc., claiming that while Ms. Woodson was a resident of Greenbough, she sustained severe personal injuries which led to her death.

¶ 3. On March 18, 2004, Pensacola filed a motion for partial summary judgment seeking to have the trial court dismiss all of the Plaintiffs claims of tortious conduct which allegedly occurred or accrued before December 31, 1999 (more than three years prior to filing suit), and all claims for which Jenkins did not provide a specific date of occurrence. Pensacola argued that the statute of limitations on bringing a wrongful death suit did not revive an otherwise expired statute of limitations on specific allegations of tortious conduct.

¶ 4. In granting partial summary judgment, the trial court held that “Plaintiffs complaint contains allegations of specific injuries resulting from specific tortious acts. Each specific tortious act must, on its own, comport with the applicable statute of limitations for that tort.” Thus, the trial court dismissed, with prejudice, all claims which occurred or accrued before December 31, 1999. The trial court also granted summary judgment as to all claims of tortious conduct for which Jenkins was unable to prove the specific dates of occurrence or accrual.

DISCUSSION

¶ 5. We have long held this Court applies a de novo standard of review of a trial court’s grant or denial of a motion for summary judgment. McKinley v. Lamar Bank, 919 So.2d 918, 925 (Miss.2005) (citing Satchfield v. R.R. Morrison & Son, Inc., 872 So.2d 661, 663 (Miss.2004); McMillan v. Rodriguez, 823 So.2d 1173, 1176-77 (Miss.2002); Lewallen v. Slawson, 822 So.2d 236, 237-38 (Miss.2002); Jenkins v. Ohio Cas. Ins. Co., 794 So.2d 228, 232 (Miss.2001); Aetna Cas., & Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996)). In performing this task, we review all eviden-tiary matters in the record, including admissions in pleadings, answers to interrogatories, depositions, and affidavits. McKinley, 919 So.2d at 925 (quoting Berry, 669 So.2d at 70). The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Id.

¶ 6. Simply stated, the question presented is whether the statute of limitations for wrongful death lawsuits is subject to the statute of limitations for the underlying tort. Wrongful death claims must be based on a claim of some wrongful conduct which led to the death. Each act of alleged wrongful conduct, whether an intentional or negligent act, has its own statute of limitations. For instance, a careless driver who causes an accident and injuries may be sued for negligence, subject to the three-year statute of limitations on negligence. However, if the injured party dies as a result of the accident, the negligence suit is transformed into a suit for wrongful death. Nevertheless, the gravamen of the claim is the negligent act which led to the death.

¶ 7. In Gentry v. Wallace, 606 So.2d 1117 (Miss.1992), Mary Gentry was advised by her physician on March 1, 1985, that there had been medical malpractice. She died on March 15, 1985. A wrongful death suit was filed on March 16,1987, two years following her death, and two years and fifteen days following her knowledge of the alleged negligent act. The defendants filed a motion for summary judgment, contending that the two-year statute of limitations began to run on March 1, 1985, and expired on March 1, 1987. In granting summary judgment, the trial court ruled that the cause of action accrued on March 1, 1985, when the failure to diagnose came to light, and it expired two years later on March 1, 1987. Gentry, 606 So.2d at 1119. In reversing the trial court, this Court stated:

We see several flaws in the appellees’ analysis. First, there is nothing in the record to establish that the plaintiff, John Billy Gentry, knew or should have known about the defendants’ negligence on March 1, 1985. It is clear that Mary Gentry knew. Had she lived and brought a personal injury action, the limitations period would no doubt have expired on March 1, 1987. But, as we have already established, a wrongful death action is an entirely different creature than a personal injury action. A wrongful death cause of action belongs to the survivor, not to the decedent. What the decedent knew and when, is therefore irrelevant in determining the date on which a limitations period begins to run for purposes of a wrongful death action. We must look at what the survivor knew or should have known.
Secondly, the appellees misconceive what it is that a wrongful death plaintiff should ‘know’ in order to trigger the statute of limitations statute.The most basic fact a wrongful death plaintiff must know in order to be aware that he is “ ‘entitled to bring an action’ is that a death has occurred. A physician can engage in the most wretched acts of negligence in plain view of a patient’s family, but until the patient dies, the family members cannot know the one indispensable fact that would ‘entitle them to bring an action’. In the wrongful death context, therefore, the ‘alleged act, omission, or neglect’ to which [the statute] necessarily refers is to lethal conduct. There is no logical way that a potential wrongful death plaintiff can know or discover’ conduct entitling him to sue until the decedent dies. [Billy Gentry] could not have ‘known’ that the doctors had committed acts of lethal negligence until Mary Gentry died.”

Gentry, 606 So.2d at 1121-22.

¶ 8. Thus, this Court held that a new statute of limitations for wrongful death begins to run on the date of death, regardless of when the statute of limitations began to run for the underlying tort which led to the death. The dissent pointed out that “[t]he gravamen of the malpractice claim is the same whether the patient suffers personal injuries or wrongful death.” Id. at 1124. The dissent further reasoned that the language of the statute was contrary to the holding of the majority.

¶ 9. The issue was decided differently in Thiroux v. Austin, 749 So.2d 1040 (Miss.1999), wherein a seven-justice majority held that “a wrongful death action, since it is predicated on an underlying tort, is limited by the statute of limitations applicable to the tort resulting in the wrongful death.” Thiroux, 749 So.2d at 1042.

¶ 10. In 2003, relying on Thiroux, this Court decided Lee v. Thompson, 859 So.2d 981 (Miss.2003), which stated:

We note that the parties in this case have concluded that the applicable statute of limitation is that found in Miss. Code Ann. § 15-1-49 (1995), the general three-year statute of limitation applied to ‘all claims for which no other period of limitations is prescribed.’ However, a wrongful death action, since it is predicated on an underlying tort, is limited by the statute of limitation applicable to the tort resulting in the wrongful death. In this case, the underlying tort is one of assault and battery (murder), which cause is limited to a one-year period. Miss.Code Ann. § 15-1-35 (1995).

Lee, 859 So.2d. at 990.

¶ 11. Since 1999, this Court has followed the precedent set by Thiroux and Thompson. See also Wells v. Radiator Specialty Co., 413 F.Supp.2d 778 (S.D.Miss.2006); Beck v. Koppers, Inc., 2005 WL 2715910 (N.D.Miss.,2005).

¶ 12. Recognizing that, in Thiroux, we should have specifically overruled Gentry, we do so now, and hold that the statute of limitations on bringing a wrongful death claim is subject to, and limited by, the statute of limitations associated with the claims of specific wrongful acts which allegedly led to the wrongful death.

¶ 13. The three year statute of limitations applicable to negligence actions is codified in Miss.Code Ann. Section 15-1-49 (Rev.2003). We hold that Jenkins may not rely on any act of negligence which allegedly occurred three years before the complaint was filed on December 31, 2002. Claims — whether for negligence or wrongful death — that were not brought within the applicable statute of limitations are barred by that statute.

¶ 14. The next issue that must be decided by this Court is whether the trial court was correct in granting summary judgment on all claims for which Jenkins did not provide a specific date of occurrence. Pensacola asserted the statute of limitations as an affirmative defense. The burden of proving an affirmative defense lies upon the party who relies upon that defense. See Graham v. Pugh, 417 So.2d 536, 541 (Miss.1982). In Gulf Nat’l Bank v. King, 362 So.2d 1253, 1255 (Miss.1978), this Court held that when a defendant pleads the statute of limitations as a defense and shows that the suit is thereby barred, he has met this burden of proof. Here, Pensacola plead the statute of limitations as a defense and must therefore show that the claims for which Jenkins did not provide a specific date of occurrence were barred by that statute. It is, of course, for Jenkins to demonstrate that the acts of alleged negligence occurred at all. Should Jenkins succeed in doing so without any proof as to when the act of alleged negligence occurred, it will then be up to Pensacola to demonstrate that the statute of limitations expired prior to bringing suit on the particular claim.

¶ 15. In reviewing a motion for summary judgment, we must view the evidence in the light most favorable to the Plaintiff, Jenkins. We agree with her argument that placing the burden on her to disprove Pensacola’s statute of limitations defense is error. Therefore, as to claims for which no specific date of occurrence has been shown, we reverse the trial court and hold that summary judgment shall be affirmed only as to claims where specific dates are proven. It is defendant’s burden to establish the statute has expired on the remaining claims.

CONCLUSION

¶ 16. We affirm the trial court’s holding that all of the Plaintiffs claims occurring more than three years prior to the filing of the wrongful death lawsuit should be dismissed. Further, we hold that the trial court was incorrect in finding that all claims as to which Jenkins could not provide a specific date of occurrence are barred. Therefore, we affirm in part and reverse in part the judgment of the Coaho-ma County Circuit Court, and we remand for proceedings consistent with this opinion.

¶ 17. PETITION GRANTED. AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

SMITH, C.J., WALLER, P.J., EASLEY AND CARLSON, JJ„ CONCUR. COBB, P.J., DIAZ, GRAVES AND RANDOLPH, JJ., NOT PARTICIPATING.


author: WALLER, Justice,

text:
    Lavon Kay PITALO v. GPCH-GP, INC. d/b/a Garden Park Medical Center, and Dr. Ronald Graham.
    No. 2005-CA-00012-SCT.
    Supreme Court of Mississippi.
    May 4, 2006.
    Rehearing Denied Aug. 3, 2006.

      David C. Morrison, attorney for appellant.
    William E. Whitfield, III, George F. Bloss, III, Mary Margaret Alexander, attorneys for appellees.
   WALLER, Justice,

for the Court.

¶ 1. Lavon Kay Pítalo appeals from a judgment of dismissal of her medical negligence complaint against Garden Park Memorial Center and Dr. Ronald Graham for failure to comply with notice provisions provided by Miss.Code Ann. Section 15—1—36(15) (Rev.2003). We affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Pítalo, a patient of Dr. Graham, was admitted to Garden Park on October 1, 2001, for shoulder surgery. The procedure was uneventful, and she was discharged the following morning. Pítalo alleged that within twenty-four hours of being released by Dr. Graham, she was rushed to the emergency room at Ocean Springs Hospital where she was diagnosed and treated for a collapsed lung. Pitalo’s condition required surgical insertion of a chest tube, and she was re-hospitalized for almost a week.

¶ 3. On September 25, 2003, Pítalo filed a lawsuit against Dr. Graham and Garden Park alleging negligence in their ignoring her numerous complaints of chest pain and their failure to examine her before releasing her from the hospital. Her amended complaint was filed on June 2, 2004. Thereafter, Dr. Graham and Garden Park collectively renewed their previously filed Motions to Dismiss based on the statute of limitations, notice of claim, and failure of Pítalo to file the required certificate with her complaint pursuant to Miss.Code Ann. Sections 15-1-36 (Rev.2003) and 11-1-58 (Rev.2002). A Judgment of Dismissal was granted on October 26, 2004, and following consideration of post-trial motions, a timely appeal was filed.

ANALYSIS

Whether it was Error for the Circuit Court to Dismiss Pitalo’s Cause of Action for Failure to Comply with Miss. Code Ann. Section 15-1-36?

¶ 4. On appeal, Pítalo argues it was error for the trial court to dismiss her cause of action because she failed to send a letter to the defendant as provided in Miss.Code Ann. Section 15-1-36(15) (Rev.2003). Miss.Code Ann. Section 15-1-36 was amended in the special session of the Mississippi Legislature on tort reform in 2002. Section 15 was added and became effective January 1, 2003. It requires that an action based on professional negligence of a health care provider may not begin unless the defendant has been given at least 60 days prior written notice of the intention to begin the action.

¶ 5. When interpreting a statute that is not ambiguous, this Court will apply the plain meaning of the statute. Claypool v. Mladineo, 724 So.2d 373, 382 (Miss.1998). In construing a statute, the Court must seek the intention of the Legislature, and knowing it, must adopt that interpretation which will meet the real meaning of the Legislature. Evans v. Boyle Flying Service, Inc., 680 So.2d 821, 825 (Miss.1996). When drafting Miss. Code Ann. Section 15-1-36(15), the Legislature did not incorporate any given exceptions to this rule which would alleviate the prerequisite condition of prior written notice. Simply stated, “shall” is mandatory, while “may” is discretionary. Franklin v. Franklin, 858 So.2d 110, 114 (Miss.2003). Pitalo’s failure to send notice of her intent to sue clearly violates the mandatory instructions concerning notice in Miss.Code Ann. Section 15-1-36(15).

¶ 6. Pítalo contends that even though she failed to provide notice of her intent to sue, the circuit court’s dismissal of her action violates our holding in Jackson v. City of Wiggins, 760 So.2d 694 (Miss.2000). Pitalo’s claim is clearly distinguishable from Jackson as the present case concerns medical negligence actions under Miss. Code Ann. Section 15-1-36 (Rev.2003)— not the Mississippi Tort Claims Act, and Pítalo did not at any time attempt to send a notice of intent to sue to Dr. Graham or Garden Park, as had been done in Jackson. Pitalo’s arguments do not excuse the absence of notice of an intent to sue being sent to the defendants in the present case.

CONCLUSION

¶ 7. Pitalo’s failure to send to defendants a notice of intent to sue is an inexcusable deviation from the Legislature’s requirements for process and notice under Miss. Code Ann. Section 15-1-36(15), and such failure warrants dismissal of her claim. Accordingly, we affirm the judgment of the circuit court.

¶ 8. AFFIRMED.

SMITH, C.J., COBB, P.J., CARLSON, DICKINSON AND RANDOLPH, JJ„ CONCUR. EASLEY AND GRAVES, JJ., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

      . The statute specifically states:
      No action based upon the health care provider's professional negligence may be begun unless the defendant has been given at least sixty (60) days’ prior written notice of the intention to begin the action. No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered. If the notice is served within sixty (60) days prior to the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended sixty (60) days from the service of the notice for said health care providers and others. This subsection shall not be applicable with respect to any defendant whose name is unknown to the plaintiff at the time of filing the complaint and who is identified therein by a fictitious name.
      Miss.Code Ann. § 15-1-36(15) (Rev.2003).