author: ISHEE, J„

text:
    Eddie L. WALKER, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01104-COA.
    Court of Appeals of Mississippi.
    Aug. 1, 2006.

      James P. Johnstone, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

ISHEE, J„

for the Court.

¶ 1. The motion for rehearing is granted. The original opinion is withdrawn, and this opinion is substituted in lieu thereof.

2. Eddie L. Walker was convicted of aggravated assault after a jury trial in Pontotoc County. Upon his conviction Walker was sentenced to twenty years in the custody of the Mississippi Department of Corrections. Walker now appeals his conviction. Finding only harmless error on appeal, we affirm.

FACTS

¶ 3. Walker was employed as a mechanic at Crew’s Auto Shop in Pontotoc, Mississippi. The shop was owned and managed by Dicky Crews. On September 26, 2000, Crews was away from his shop, and in his absence Crews left James Hitchcock, a coworker of Walker’s, in charge of the shop. Hitchcock and Walker worked together in a relationship that was strained at best. A mere hour and a half into the workday the two men became embroiled in a profanity-laced argument over the proper way to repair an engine that Walker had been working on. Thomas Keys, another coworker, arrived at work to find Walker and Hitchcock already deeply in the midst of the argument. Keys was outside of the garage when the argument devolved into physical conflict, and he did not witness which man was the initial aggressor in the fight. What Keys did see upon returning to the garage was Hitchcock lying on the ground with blood pooling by his head. Keys testified that he saw Walker standing above Hitchcock with a tire iron in one hand and that Walker was riffling through Hitchcock’s pants pockets with his other hand. Keys further testified that Walker turned his attack on him, hitting Keys in the leg with the tire iron. After a protracted struggle, Keys was able to wrest the tire iron from Walker’s hands, at which time Walker fled the scene.

¶ 4. Mike McGowan of the Pontotoc County Sheriffs Department took pictures of the scene and retrieved the tire iron from the shop. The tire iron had no special markings or serial numbers, and was moved several times while in the custody of the sheriffs department. Walker objected at trial to the admission of the tire iron. However, his objection was overruled and Keys testified that the tire iron presented at trial was indeed the same tire iron from the shop that was in Walker’s hands. Walker was subsequently convicted and sentenced to twenty years in the custody of the Mississippi Department of Corrections. Aggrieved by this decision, Walker asserts the following errors on appeal: (1) whether the trial court erred by allowing photographs of the crime scene to be admitted into evidence; (2) whether the trial court erred by allowing the tire iron to be admitted into evidence; and (3) whether the trial court erred by denying the defense counsel’s motion to exclude the defendant’s prior convictions.

ISSUES AND ANALYSIS

I. Whether the trial court erred by allowing photographs of the crime scene to be admitted into evidence.

¶ 5. Walker asserts on appeal that the foundation for the admission of photographs of the crime scene had not been properly laid, and that as such, the trial court erred by allowing the photographs to be admitted into evidence. Walker further argues that the photographs offered no probative value, and were entered into evidence with the purpose of inflaming the jury. We review the admission of photographic evidence at trial under an abuse of discretion standard. Brown v. State, 682 So.2d 340, 353 (Miss.1996).

¶ 6. We begin our analysis by noting that the objection to the photographs brought by Walker on appeal was not brought before the trial court. Because this issue was not preserved for appeal, it cannot be a basis for reversal. Haddox v. State, 636 So.2d 1229, 1240 (Miss.1994). This issue is therefore waived. Nonetheless, assuming arguendo that this issue was preserved for appeal, the record is clear that the foundation for the admission of the evidence was laid through the testimony of McGowan. Furthermore, the photographs were both relevant and probative under Rules 401 and 403 of the Mississippi Rules of Evidence. The admission of the photographs cannot be considered to be an abuse of discretion by the trial court. This issue is without merit.

II. Whether the trial court erred by allowing the tire iron to be admitted into evidence.

¶ 7. Walker next asserts that the trial court abused its discretion by allowing the tire iron to be entered into evidence. Walker argues that little evidence was put forth to establish that the tool admitted into evidence was the same tire iron used in the incident. According to Walker, the chain of custody of the tire iron was questionable and thus raised serious issues regarding its authenticity. Walker states that once the tire iron was taken into custody, it became unclear as to where it was stored, how it was labeled, and who had access to it. Walker argues that the tool was merely in the vicinity of the victim when McGowan arrived on the scene, and that there were no unique markings on the tire iron that could differentiate the tool from those found in most automobile shops. Walker cites the testimony of McGowan who testified that once the tool was placed in a bag, it was taken to the Pontotoc Sheriff’s Office, where the precise location of storage of the tool was unclear. McGowan testified that the tool was moved to a storage trailer by some unknown person at some unknown time, and that “after four years, its been moved so many times, digging out other evidence, there may be a different bag on it.” In short, Walker asserts that the admission of the tire iron was in error as the State failed to produce “evidence sufficient to support a finding that the matter in question is what the proponent claims” in accordance with Rule 901(a) of the Mississippi Rules of Evidence.

¶ 8. The State argues in turn that the testimony of witness Keys was sufficient to establish that the tire iron entered into evidence was indeed the tire iron used by Walker, regardless of the lack of any specialized individual markings. In fact, Keys explained that he had used the very same tire iron for many years during his employment at the automotive shop. Furthermore, McGowan found the tool near to where Hitchcock was lying, and testified that the tire iron produced at trial was the one that he recovered from the scene. Additionally, although the tire iron had been moved frequently at the Pontotoc Sheriffs Office, testimony showed that it was the only tire iron in storage from the time it was bagged as evidence until the trial. The testimony at trial was sufficient to establish the authenticity of the tire iron admitted into evidence. We find this issue to be without merit.

III. Whether the trial court erred by denying the defense counsel’s motion to exclude the defendant’s prior convictions.

¶ 9. Under this assignment of error, Walker argues that the trial court abused its discretion in denying defense counsel’s motion to exclude evidence of his prior conviction for aggravated assault if Walker was to have testified. The thrust of Walker’s argument is that the prejudicial effect of his past conviction outweighed its probative value, pursuant to Rule 609(a)(1)(b) of the Mississippi Rules of Evidence. According to Walker, he decided not to take the stand in his defense due to the prejudicial effect of being cross-examined about his prior conviction. Because Walker was not able to take the take the stand in his defense, he asserts that his conviction should be reversed and remanded for a new trial.

¶ 10. “Mississippi follows the general rule that proof of a crime distinct from that alleged in the indictment should not be admitted in evidence against the accused.” Eubanks v. State, 419 So.2d 1330, 1331 (Miss.1982).

The reason and justice of the rule is apparent, and its observance is necessary to prevent injustice and oppression in criminal prosecutions. Such evidence tends to divert the minds of the jury from the true issue, and to prejudice and mislead them, and, while the accused may not be able to meet a specific charge, he cannot be prepared to defend against all other charges that may be brought against him. “To permit such evidence,” says Bishop, “would be to put a man’s whole life in issue on a charge of a single wrongful act, and crush him by irrelevant matter, which he could not be prepared to meet.”

Id. (citing 1 Bish.Crim. Proc. § 1124; Floyd v. State, 166 Miss. 15, 35, 148 So. 226, 230 (1933)). Rule 404(b) of the Mississippi Rules of Evidence states that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” Rule 404(b) also instructs that such evidence “may ... be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” See also Carter v. State, 450 So.2d 67, 69 (Miss.1984).

¶ 11. Rule 609(a)(1)(B) of the Mississippi Rules of Evidence states that impeachment by evidence of conviction of a crime “shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the party.” The comment to Rule 609 states that the rationale for the rule is based on fairness. “A person’s past should not be able to haunt him for the duration of his life.” M.R.E. 609 cmt. To further clarify the logic behind this rule, it would be unfairly prejudicial to a defendant to conclude that because the defendant committed a wrong act in the past, he must have committed the act that is the basis of his current charge.

¶ 12. In the case sub judice, the trial court determined that “the probative value of this evidence substantially outweighs its prejudicial effect, having balanced the evidence under Rule 403 and also under Rule 609.” Nonetheless, we find that the admission of the testimony was more prejudicial than probative under Rules 403 and 609 of the Mississippi Rules of Evidence. The dangers of allowing convictions based upon past behavior are self-evident. Were we to allow such evidence of past crimes without strict limitations, the State would be relieved of its burden to prove the guilt of a defendant as to a given charge by instead relying on a defendant’s past criminality as proof of the defendant’s current guilt. Furthermore, no defendant would be allowed to fully repay his or her debt to society as the defendant would be shackled with the fear of being convicted anew for past sins.

¶ 13. In the case sub judice, the record reveals that evidence of Walker’s prior conviction for aggravated assault was never presented to the jury. Regarding Walker’s assertion that he did not take the stand for fear that his prior conviction would be used to impeach him during cross-examination, neither he nor his attorney explained this to the court when Walker informed the court of his decision not to testify. Moreover, neither Walker nor his attorney suggested to the court what Walker’s testimony would have been had he testified. The Mississippi Supreme Court has held that “[i]n order to preserve the issue whether a court erred in ruling on a motion to limit use of prior convictions the least that is required of the criminal defendant is that a proffer be made of the testimony that he would have offered but for the ruling.” Settles v. State, 584 So.2d 1260, 1265 (Miss.1991) (citing Saucier v. State, 562 So.2d 1238, 1245 (Miss.1990)). The requirement of a proffer is necessary because “the content of [the] defendant’s testimony ... provides a basis for this [C]ourt’s harmless error analysis.” Id. Consequently, despite our finding that the court erred, we decline to reverse and remand this case for a new trial. Walker failed to make a proffer of the testimony that he would have offered but for the court’s denial of his motion to exclude evidence of his prior conviction. Additionally, we find that the overwhelming weight of the evidence supports Walker’s conviction for aggravated assault. Therefore, we conclude that the court’s error was harmless.

¶ 14. THE JUDGMENT OF THE PONTOTOC COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PON-TOTOC COUNTY.

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


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Janice Amanda (Winter) FRANKLIN, Appellant v. Robert Milner WINTER, Appellee.
    No. 2005-CA-00082-COA.
    Court of Appeals of Mississippi.
    Aug. 8, 2006.

      Thomas Wright Teel, Biloxi, attorney for appellant.
    G. Charles Bordis, attorney for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Janice (Winter) Franklin and Robert Winter were married on February 14, 1997, and divorced on September 9, 1999. Their divorce settlement provided for joint legal and physical custody of their daughter, Shanna. On June 28, 2002, Winter filed a complaint to modify the custody agreement, alleging that changes in circumstances necessitated a revision of the custody agreement. After a trial, the Jackson County Chancery Court modified the custody agreement and awarded physical custody to Winter and gave Franklin and Winter joint legal custody of the children. Aggrieved, Franklin appeals and contends that the court erred in “its use and application of the test for a custody modification.”

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Some time after her divorce from Winter, Franklin remarried and moved to Jacksonville, Arkansas, near where her current husband, who is a member of the United States Air Force, is stationed. The chancellor found that “the parties have been exchanging the child by traveling back and forth from Jackson County, Mississippi to Little Rock, Arkansas every few months.... ” Dissatisfied with that arrangement, Winter filed his petition for modification of the custody order on June 28, 2002.

¶ 4. After several unsuccessful attempts to bring the matter to trial, the court ultimately heard the case and issued its findings of fact and conclusions of law on July 9, 2004. That judgment granted primary legal and physical custody to Winter. Thereafter, Franklin filed a motion for reconsideration. A hearing was held in response to Franklin’s motion. On December 7, 2004, the court modified its order to leave physical custody with Winter, and joint legal custody with both the parents.

¶ 5. Additional facts, as necessary, will be related during our discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

Standard of Review

¶ 6. Our review of a chancellor’s custody determination is limited: “A chancellor must be manifestly wrong, clearly erroneous, or apply an erroneous legal standard in order for [us] to reverse.” Johnson v. Gray, 859 So.2d 1006, 1012(¶ 31) (Miss.2003) (citing Mabus v. Mabus, 847 So.2d 815, 818(¶8) (Miss. 2003)).

Modification of Custody Order

¶ 7. In “ ‘modification cases, as in original awards of custody,’ we never depart from our polestar consideration: the best interest and welfare of the child.” Id. at 1013(¶ 33) (quoting Riley v. Doerner, 677 So.2d 740, 744 (Miss.1996)). However, modification issues are different from original custody determinations:

[We have] emphasized that the request for modification “does not simply mean a re-weighing of the Albright factors to see who now is better suited to have custody of the child ... there must be shown ... a material change, not just a change in circumstances, that has had an adverse affect [sic] on the child and which requires, or mandates, a change in custody for the best interests of the child.”

Beasley v. Beasley, 913 So.2d 358, 361(¶ 8) (Miss.Ct.App.2005) (quoting Sanford v. Arinder, 800 So.2d 1267, 1272(¶ 16) (Miss.Ct. App.2001)). In order to succeed on a complaint for modification, “the non-custodial party must prove: (1) that a substantial change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child’s welfare; and (3) that the child’s best interests mandate a change of custody.” Mabus, 847 So.2d at 818(¶ 8) (citing Bubac v. Boston, 600 So.2d 951, 955 (Miss. 1992)).

¶ 8. Franklin argues that the court in this case “made a fundamental, legal error in how it approached the analysis of this case, failing to apply the stringent requirements of a custodial modification and, instead, analyzing the facts as if an initial custody determination under Albright.” However, we note that, although the court in this case devotes a majority of its opinion to discussing the Albright factors, the court did acknowledge and address the above test for modification of a custody order. Specifically, the court found that “[t]he present arrangement is impractical and economically prohibitive. To continue the current visitation schedule, necessitates the child changing from school to school and changing her place of residence from the stability standpoint and would not be in the child’s best interest as well as the other grounds alleged by the father for modification.” Basically, the court found that Franklin’s move “some 500 miles away” to Arkansas constituted a material change to the detriment of the best interests of Shanna.

¶ 9. Although Franklin contends that a parent’s move is not a “substantial change in circumstance,” we note that this Court has determined differently in recent cases. In Elliott v. Elliott, 877 So.2d 450, 455-56 (¶¶ 19-25) (Miss.Ct.App.2003), a case where a mother and father shared joint physical custody of their children, we found that a chancellor did not abuse her discretion in awarding primary physical custody to a father after the mother moved to Flagstaff, Arizona. In so holding we noted that:

Although the appellate courts have repeatedly held that the mere moving of one party or the other is insufficient grounds for modification of child custody, those cases involved visitation. There are cases, however, which state that the moving of one party is sufficient grounds for modification because it makes joint custody impractical or impossible.

Id. at 455(¶ 18).

¶ 10. Franklin contends that the divorce settlement gave her defacto physical custody because the times of custody set out for Winter were akin to a standard visitation schedule. This is important because, if Franklin had primary physical custody, then Winter had only visitation rights, and we would likely find that Franklin’s move is not sufficient grounds for modification of the custody order. However, since the record does not contain a copy of the party’s divorce settlement, we cannot determine the nature of the original custody agreement. Both parties agree that the custody was termed as “joint” physical custody. Franklin contends in her brief that it is clear from the wording of the settlement that she had primary physical custody, but “cases on appeal must be decided on the facts contained in the record, not on assertions made in the briefs. The burden falls on the appellant to ensure there is sufficient evidence in the record to support an assertion of error.” McDerment v. Miss. Real Estate Comm’n, 748 So.2d 114, 120(¶ 19) (Miss.1999) (citations omitted). Since there is no copy of the settlement agreement in the record, there is insufficient evidence for this court to determine that Franklin had de facto primary physical custody of her child. Since the chancellor in this case found that “Shanna ... has been in the joint, legal and physical posture since the divorce of September 9, 1999,” we defer to the chancellor’s finding that the parties shared joint physical custody of Shanna prior to the modification order.

¶ 11. According to recent cases, the moving of one party some distance away can constitute a material change in circumstances sufficient to warrant the modification of a custody agreement when the parties at issue share joint physical custody of the child, as is the case in the case at bar. Since we have found that the record establishes that the parties shared joint physical custody, we find that the chancellor in this case did not err in finding that Franklin’s move to Arkansas constitutes a material change that makes the sharing of joint physical custody of Shanna unworkable. Although the chancellor in this case spent much time focusing on the factors found in Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983), the chancellor also addressed the material change necessary in order to alter the custody order. After reviewing all the evidence presented, the court found that it was in Shanna’s best interest for primary physical custody to be granted to her father. We cannot say that the chancellor’s conclusion was “clearly erroneous” or applied “an erroneous legal standard.” Therefore, we affirm the chancellor’s grant of custody to Franklin.

¶ 12. THE JUDGMENT OF THE CHANCERY COURT OF JACKSON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author:
IRVING, J.,
      ROBERTS, J.,

text:
    Michael MORRIS and Claire Morris, Appellants v. FORD MOTOR COMPANY, Texas Instruments Incorporated, and Tom Wimberly Auto World Incorporated, Appellees.
    No. 2004-CA-02218-COA.
    Court of Appeals of Mississippi.
    Aug. 8, 2006.

      Michael S. Allred, Kathleen H. Eiler, Jackson, attorneys for appellants.
    Alan Lee Smith, Walker (Bill) Jones, Barry W. Ford, Jackson, Stephen Walker Burrow, Pascagoula, attorneys for appel-lees.
    Before KING, C.J., IRVING, CHANDLER and ISHEE, JJ.
   IRVING, J.,

for the Court.

¶ 1. Michael Moms and Claire Morris (the Morrises), husband and wife, sued Ford Motor Company (Ford), Texas Instruments, Inc. (TI), and Tom Wimberly Auto World, Inc. (Wimberly) after a malfunction in the Morrises’ Lincoln Town Car allegedly caused the car to catch on fire, resulting in the burning of their home. After discovery, Ford filed a motion for summary judgment which the Madison County Circuit Court granted “on behalf of all Appellees.” The Morrises appeal and contend that summary judgment is not proper when “Defendants have engaged in acts of negligence and Plaintiffs have suffered severe and substantial mental and emotional distress as a result.”

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On February 23,1999, Claire parked her 1993 Lincoln Town Car in her garage and went inside her house. Shortly thereafter, while the vehicle was parked and turned off, the Towncar caught fire. The fire spread to other parts of the garage and destroyed the Morrises’ second car. The fire also spread into the kitchen and living room of the house. After she became aware of the fire, Claire went outside and watched as her house burned. The smoke damage throughout the house was extensive, and the Morrises were forced to vacate their home for several months after the fire.

¶ 4. All the experts who were asked to analyze the cause of the fire agreed that the Towncar was the probable source of the fire. The experts found that the most likely cause of the fire was a defective speed control deactivation switch, which probably overheated and ignited. The Morrises’ insurance company paid for the damage to their home and possessions. Claire’s medical records indicate that she suffered from depression and other emotional problems after the fire, and she eventually attempted to commit suicide on February 21, 2001. Additional facts, as necessary, will be related in the analysis section of this opinion.

ANALYSIS AND DISCUSSION OF THE ISSUE

Standard ofRevieiv

¶ 5. We apply a de novo standard of review to a grant of summary judgment. Stallworth v. Sanford, 921 So.2d 340, 341(¶ 5) (Miss.2006) (citing Davis v. Hoss, 869 So.2d 397, 401(¶ 10) (Miss.2004)). Summary judgment is proper only when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Id. (quoting M.R.C.P. 56(c)). We review evidence in “the light most favorable to the party opposing the motion.” Id. (quoting Davis, 869 So.2d at 401(¶ 10)). The burden of proving that no genuine issue of material fact exists “is placed on the moving party.” Id. (citing Davis, 869 So.2d at 401(¶ 10)).

Propriety of Summary Judgment

¶ 6. The Morrises claim that the court’s grant of summary judgment was in error because the Appellees “engaged in acts of negligence and [they] have suffered severe emotional distress as a result.” The Ap-pellees contend that the Morrises cannot recover because Mississippi does not allow for recovery of mental damages arising from a negligent action unless the Mor-rises are able to show “demonstrative physical harm.”

¶ 7. As recognized by both parties, there are two lines of Mississippi cases addressing the issue of recovery for mental damages in a negligence action. The first line holds that mental damages may only be recovered when there is an accompanying physical harm. See, e.g., Am. Bankers' Ins. Co. of Fla. v. Wells, 819 So.2d 1196, 1209 (¶¶ 43-45) (Miss.2001). The second line of cases holds that mental damages may be recovered in a negligence action simply upon a showing that the harm was “reasonably foreseeable.” Adams v. U.S. Homecrafters, Inc., 744 So.2d 736, 744 (¶¶ 20-21) (Miss.1999) (quoting Strickland v. Rossini, 589 So.2d 1268, 1275 (Miss. 1991)). The Appellees contend that the first line of cases, as represented by American Bankers, is the controlling law in Mississippi. Consequently, the Appellees argue that the Morrises are required to show physical harm to recover for their emotional injuries. The Morrises contend that the second line of cases is applicable, and that they are required only to show that the Appellees’ conduct was reasonably foreseeable.

¶ 8. We decline to attempt to determine which line of cases is the current prevailing law in Mississippi, as that is a task better suited to the Mississippi Supreme Court. We do note, however, the court’s language in American Bankers: “We have applied the line of cases adopting the more restrictive majority view in the most recent holdings on this issue.... ” American Bankers, 819 So.2d at 1209(¶ 43). As an indication of the confusion surrounding this issue, the court then went on to say: “the cases applying the minority view have not been overruled.” Id. Since we find other grounds on which summary judgment was properly granted, we need not determine which of the two lines of cases is controlling.

¶ 9. We find that summary judgment in this case was properly granted, regardless of which line of cases applies, because, in responding to the Appellees’ motion for summary judgment, the Mor-rises failed to show a genuine issue of fact in regards to whether the injuries they suffered were foreseeable to the Appellees. The only evidence offered by the Morrises was a National Highway Transportation Safety Administration (NHTSA) investigation that ultimately led to Ford’s issuance of a recall due to the faulty speed control deactivation switch. However, the NHTSA investigation was only begun in October 1998, approximately four months before the Town Car combusted. The investigation was not completed until several months after the fire, at which time Ford issued its recall. No other evidence whatsoever was presented by the Morrises indicating that any of the Appellees were even aware of a problem with the vehicle. No specific examples were provided demonstrating other instances in which Ford vehicles had spontaneously combusted. No reports were submitted indicating that there was a proven and known problem with the vehicles.

¶ 10. The elements that a plaintiff is required to prove in a negligence action are well-established: “A plaintiff in a negligence suit must prove by a preponderance of the evidence (1) duty, (2) breach of duty, (3) causation, and (4) injury.” Patterson v. Liberty Assoc’s, L.P., 910 So.2d 1014, 1019(¶ 14) (Miss.2004) (citing Miss. Dep’t of Transp. v. Cargile, 847 So.2d 258, 262(¶ 11) (Miss.2003)). The Patterson court went on to explain that “foreseeability is an essential element of both duty and causation.” Id. (quoting Delahoussaye v. Mary Mahoney’s, Inc., 783 So.2d 666, 671(¶ 13) (Miss.2001)). Therefore, since the Morrises failed to present a genuine issue of material fact regarding an essential element of their claim, summary judgment was properly granted. See Williams v. Bennett, 921 So.2d 1269, 1272(¶ 10) (Miss.2006) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); Gorman-Rupp Co. v. Hall, 908 So.2d 749, 757(¶ 25) (Miss.2005) (citing Galloway v. Travelers Ins. Co., 515 So.2d 678, 684 (Miss.1987)). Since no genuine issue of material fact was presented regarding foreseeability, no error occurred and summary judgment was properly granted.

¶ 11. The dissent contends that, in so holding, we are “ambushing” the Mor-rises, because the Appellees “did not raise the issue of Appellee’s prior knowledge of the existence of a product defect in then-motion for summary judgment.” We respectfully disagree. The record reflects that in their motion for summary judgment, the Appellees incorporated, by reference, the contents of their trial brief which was filed with and in support of the motion. In the trial brief, the Appellees stated: “Plaintiffs make numerous allegations in their Complaint that Ford (and other Defendants) had actual knowledge of an alleged defect ... and concealed its knowledge of the alleged defects .... ” (emphasis added). The Appellees at that time even pointed out that “despite the fact that this case has been pending for four years and Plaintiffs have had ample time for discovery, Plaintiffs have not produced, and cannot produce, any evidence to support these allegations [that the Ap-pellees had prior knowledge of the defect].” The Appellees clearly indicated in their brief in support of summary judgment that the question of whether Ford and the other Appellees had prior knowledge of the defect was a necessary element of the Morrises’ claim for intentional infliction of emotional distress. Despite being warned in the Appellee’s trial brief of their failure to produce any evidence as to Ford’s prior knowledge of the defect, the Morrises still did not produce any evidence regarding whether the Appellees knew of the alleged defect.

¶ 12. The dissent then contends that even if the Appellees did raise the issue of foreseeability, “the record is sufficient to survive a motion for summary judgment.” The dissent argues that the record is sufficient to survive summary judgment under either of the previously-discussed lines of cases. However, we do not see how either line of cases provides for recovery in the absence of a showing that the Appellees had some prior knowledge of the defect that caused the fire. Regardless of which line of cases applies, the underlying action that the Morrises must succeed on is a claim of negligence. As we have already discussed, a necessary showing to succeed on a negligence claim is that the harm suffered was foreseeable to the Appellees.

¶ 13. The dissent claims that we incorrectly focus on the “foreseeability of the defect” instead of the “foreseeability of harm.” However, we do not see how these two can be separated in any meaningful way. If the defect was not foreseeable or known to the Appellees, then the harm flowing from the defect also was not foreseeable. The dissent also points out that the Morrises did produce an expert, Steve Shephard, who claimed that the defect in question was foreseeable to the Appellees. However, we note that Shephard’s affidavit contains no basis for his statement that “[t]he make and model automobile in question experienced very numerous [sic] fires similar to the one in question between 1992 and 1999.” Despite making this statement and then asserting that Ford knew about the defect and did nothing, Shephard points to not even one example of another fire between 1992 and 1999. He cites “[vjarious records of the Office of Defects Investigation and the National Highway Traffic Safety Administration applicable to Ford make and model vehicles” and “[r]ecords of the Center for Automobile Safety applicable to the Lincoln Town Car and other Ford makes and models,” but declines to discuss how these documents support his opinion. Shephard’s affidavit, while it claims that Ford knew of the defect prior to the NHTSA investigation, provides no support whatsoever for that statement. In fact, the affidavit in question was stricken by the court upon motion from the Appellees. The court specifically found that “[the affidavit does] not contain any testimony that would be admissible evidence at trial.” Therefore, Shephard’s affidavit cannot serve to create a genuine issue of material fact as to whether the defect was foreseeable to the Appellees.

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

KING, C.J., LEE, P.J., AND ISHEE, J., CONCUR. ■ SOUTHWICK, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. ROBERTS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MYERS, P.J., CHANDLER AND BARNES, JJ. GRIFFIS, J., NOT PARTICIPATING.

ROBERTS, J.,

Dissenting.

¶ 15. With all due respect, it appears that the majority confuses the issues in deciding the case sub judice. As I see it, this Court must resolve the issue of whether there was a genuine question of material fact regarding the Morrises’ ability to demonstrate a legally cognizable injury. After all, that is the issue that the Appel-lees raised in their motion for summary judgment. However, in affirming the circuit court’s decision to grant the Appellee’s motion for summary judgment, the majority states:

Since we find other grounds .on which summary judgment was properly granted, we need not determine which of the two lines of cases is controlling.
We find that summary judgment in this case was properly granted, regardless of which line of cases applies, because the Morrises are utterly unable to show that the injuries they suffered were foreseeable to the Appellees. The only evidence offered by the Morrises is a National Highway Transportation Safety Administration (NHTSA) investigation that ultimately led to Ford’s issuance of a recall due to the faulty speed control deactivation switch. However, the NHTSA investigation was only begun in October 1998, approximately four months before the Towncar combusted. The investigation was not completed until several months after the fire, at which time Ford issued its recall. No other evidence whatsoever was presented by the Morrises indicating that any of the Appellees were even aware of a problem with the vehicle. No specific examples were provided demonstrating other instances in which Ford vehicles had spontaneously combusted. No reports were submitted indicating that there was a proven and known problem with the vehicles.

I must dissent for two distinctly separate reasons.

¶ 16. First, the Appellees did not raise the issue of Appellees’ prior knowledge of the existence of a product defect in their motion for summary judgment. Rather, the Appellees claimed that the Morrises could not produce proof of demonstrative harm or that Ford proximately caused the Morrises’ emotional injuries. The Morrises never had a chance to rebut that issue or otherwise defend against it. In essence, the majority ambushes the Morrises with an issue where it did not previously exist. The effect deprives the Morrises of notice of the issue and an opportunity to be heard. In my opinion, the majority’s affirmance of summary judgment on an issue that was not raised in the circuit court results in a violation of the Morrises’ rights to due process.

¶ 17. Secondly, assuming arguendo that the Appellees raised the issue on which the majority relies, it is my opinion that the record is sufficient to survive a motion for summary judgment. The majority apparently concludes that the Morrises’ emotional distress injuries were not, legally speaking, foreseeable to the Appellees. Within their motion for summary judgment, the Appellees raise the issue of whether there existed a genuine issue of fact concerning the Morrises’ ability to show demonstrable harm. As to when a plaintiff may recover damages for emotional distress in a simple negligence action, there are currently two lines of cases. The first line of cases holds that a plaintiff may only recover damages for emotional distress if he can prove “some sort of physical manifestation of injury or demonstrable physical harm.” Am. Bankers' Ins. Co. of Fla. v. Wells, 819 So.2d 1196 at (¶¶ 43-45) (Miss.2001). A second line of cases, identified as a minority view but never explicitly overruled, holds that a plaintiff may recover damages for emotional distress if he shows that the harm was reasonably foreseeable. Adams v. U.S. Homecrafters, Inc., 744 So.2d 736 (¶¶ 20-21) (Miss.1999). This theory of liability, as stated in Adams, is an echo of Justice Hawkins’ eloquently stated concurring opinion in Sears, Roebuck & Co. v. Devers, 405 So.2d 898 (Miss.1981) (Hawkins, J., concurring). In identifying that damages for infliction of emotional distress as a result of simple negligence was an actionable legal theory, Justice Hawkins stated:

I concur in the result reached by this opinion. I agree that an act which can only be characterized as one of simple negligence happens to cause transitory emotional or mental disturbance, ephemeral in nature, and requiring no professional help, recovery should not be allowed. I do not believe the language in any previous opinion should be construed to mean, however, that this Court will never uphold a judgment for serious mental injury alone caused by the negligence of another. Although it might be considered an unnecessarily fine distinction, because it is difficult to conceive of an act causing medically serious mental injuries which does not thereby have some physical consequences as well upon the body, this Court should specifically recognize that mental injury alone, if carrying serious consequences and supported by competent medical evidence, is sufficient to support a claim for damages. If there is a genuine basis of liability due to the negligence of another, the plaintiff should not be denied recovery simply because the assault is only upon the mind or nervous system, when the result is a serious, medically cognizable injury. This would not be changing a rule of law, but would be a recognition by this Court of the enormous advance which has been made in the art, science and technology of the diagnosis and treatment of mental and emotional infirmities. This, in my opinion, was the thrust of our holding in First National Bank v. Langley, 314 So.2d 324 (Miss. 1975), and should be clearly enunciated here.

Id. at 902-03. Justice Hawkins’ statement is even more relevant today given the advancements made in the medical community over the past quarter century.

¶ 18. As to the first line of cases, the record contains sufficient evidence to demonstrate a genuine issue of material fact as to whether Ms. Morris’s emotional distress was embodied in the requisite physical manifestation. Ms. Morris sought medical treatment for emotional problems thirty-one (31) days after the fire. She was prescribed several medications for depression, sleeplessness, moodiness, and anxiety. Ms. Morris’s depression culminated with a suicide attempt and admission into St. Dominic Hospital. Medical records taken by several medical personnel throughout Ms. Morris’s ordeal indicate that her thoughts of suicide and her later attempt to accomplish same were the ultimate result of her witnessing her and her husband’s house burning down, which was, according to three expert witnesses, the result of the car’s defective electrical components. We are bound to examine the evidence in thé light most favorable to the Morrises. McMillan v. Rodriguez, 823 So.2d 1173(¶ 9) (Miss.2002). If any doubt exists as to Morris’s ability to prove causally related demonstrable harm, that doubt must be resolved in favor of denial of Appellees’ summary judgment motion. Shelton v. American Ins. Co., 507 So.2d 894, 896 (Miss.1987) (citing Brown v. Credit Center, Inc., 444 So.2d 358 (Miss.1983) (other citations omitted)).

¶ 19. As for the second, “minority” line of cases, the record also contains a genuine issue of material fact as to whether Ms. Morris’s emotional distress was reasonably foreseeable. While there certainly could be circumstances in which the nexus between the negligent act is so far removed from the harm that results as to preclude the existence of a genuine issue of material fact, that is not the case here. Surely physical harm is a foreseeable result where a car contains a defective component that causes fires. While it is admittedly less certain that one might suffer emotional distress, it can hardly be said to be unforeseeable. Following the logical steps, it is not. abnormal for people to own a car and to have a garage attached to their home. Likewise, it is not abnormal for a car owner to store that car in an attached garage. If a defective component in one’s car caused a fire, it is foreseeable that the fire would spread to the home. Surely, at the least, a jury issue exists as to whether or not it is reasonably foreseeable that one may suffer emotional distress damages when she evacuates her burning home and then watches it and her treasured possessions burn.

¶ 20. It should also be noted that the supreme court has identified the “nature of the incident” giving rise to the alleged emotional distress damages as having some import in this regard. University of Southern Miss. v. Williams, 891 So.2d 160 (¶ 32-33) (Miss.2004). The Williams court noted that the “nature of the incident” is important in two ways. Id. ■ .at (¶ 33). First, it is essential in determining the foreseeability of the alleged emotional harm. Id. Second, the more outrageous the defendant’s conduct, the lower the plaintiffs burden of proving specific harm. Id.

¶ 21. In any event, it appears that the majority does not resolve the ease on the issue of foreseeability of harm, but rather on the issue of foreseeability of the defect. That is, the majority concludes that the Morrises’ emotional distress injuries were not foreseeable to the Appellees because the Morrises’ failed to prove Appellees had notice of the defective speed control deactivation switch. The majority bases its conclusion on the prospect that the Mor-rises’ only evidence on the foreseeability issue was the NHTSA investigation, which began approximately four months before the Morrises’ home burned. In my opinion, this is where confusion over the issue surfaces.

¶ 22. The NHTSA investigation speaks to whether the defect was foreseeable. The Appellees did not claim there was a genuine issue of material fact as to fore-seeábility of the defect. Even assuming that was the issue, the record demonstrates the existence of a genuine issue of material fact as to whether the defect was foreseeable.

¶ 23. This focus on foreseeability hints that negligence and negligent infliction of emotional distress were the only theories of liability extended by the Morrises. This was not the case. As to the specific claims alleged by the Morrises, in addition to the negligence claims based on defective design, defective manufacture, inadequate or nonexistent warnings, and others, the Mor-rises claimed the Appellees were strictly liable under a products liability theory.

¶ 24. As to the foreseeability of the defect, one of the Morrises’ expert witnesses, Steve Shephard, whose qualifications include a Ph.D. in mechanical engineering, submitted a sworn affidavit by which he stated that he studied all relevant documents and pleadings. According to Shephard’s expert opinion, the Morrises’ car contained a defect that proximately caused the fire that spread to the Mor-rises’ home. Shephard further stated that the same defect in other Ford, Lincoln, and Mercury cars caused fires in numerous instances from 1992 to 1999. She-phard alleged that the Appellees had actual knowledge of the defect due to the frequent reporting to them of occurrence of fires, yet did nothing to correct the problem. Shephard even alleged that the Appellees knew the danger the defect created and actually concealed that knowledge from federal regulators.

¶ 25. As to the admissibility of She-phard’s affidavit, Texas Instruments did submit a motion to strike said affidavit wherein TI advanced several arguments why Shephard’s affidavit should be quashed. These included an apparent lack of a resume or other list of Shephard’s qualifications, a lack of the required attachments of documents to which She-phard referred, a lack an explicit statement of personal knowledge, as well as many others. While it is arguable, given the facts surrounding the affidavit, whether or not TI’s motion to strike should have been granted, in making the determination to grant summary judgment, the lower court stated that it actually considered the affidavit of Shephard but found, without further explanation, that it “d[id] not contain any testimony that would be admissible evidence at trial.” Furthermore, the trial court went on to state that summary judgment was proper even without consideration, and eventual granting, of TI’s aforementioned motion. In sum, I cannot agree with the trial court’s determination of the admissibility of the evidence contained in Shephard’s affidavit.

¶ 26. While the burden of proof of emotional damages is high, it is my contention that under either standard promulgated by our supreme court, there exists a genuine issue of material fact for ultimate jury resolution that requires us to reverse the circuit court’s decision to grant summary judgment in the Appellee’s favor and remand the matter to the circuit court for a trial on the merits. Because the majority affirms the circuit court’s decision, I respectfully dissent.

MYERS, P.J., CHANDLER AND BARNES, JJ., JOIN THIS OPINION.

      . For clarity of understanding, the Defendants in the court below will be referred to in the collective as "the Appellees” except in direct quotations. In such instances, the name designation employed by the author of the quotation will be utilized.

      . The Morrises sued Ford and the other Ap-pellees, seeking compensation for damage to their property and home and contending that their insurance company had failed to adequately compensate them for their loss. Ford contended in its motion for summary judgment that the Morrises could not recover those damages because they had already been paid by the insurance company. The Mor-rises apparently concede this in their appeal, because they allege only that the summary judgment was improper in regard to emotional and mental damages.

      . Although the Morrises focus only on their negligence claims in their appeal brief, we note that they also cannot succeed on a claim of intentional infliction of emotional distress. Intentional infliction of emotional distress requires "malicious, intentional, willful, wanton, grossly careless, indifferent or reckless” behavior on the part of a defendant. Cmty. Bank, Ellisville, Miss. v. Courtney, 884 So.2d 767, 775(¶ 28) (Miss.2004) (citations omitted). In the absence of a showing that the Appellees were aware of the defect or that the defect was foreseeable, the Appellees' behavior could not have been "malicious, intentional, willful, wanton, grossly careless, indifferent or reckless.” Therefore, the Morrises also cannot succeed on a claim of intentional infliction of emotional distress without a showing that the Appellees were aware of the defect or that the defect was foreseeable.


author: KING, C.J., SOUTHWICK, J.,

text:
    Raymond BROADY, Appellant v. MISSISSIPPI STATE BOARD OF ARCHITECTURE, Appellee.
    No. 2005-CA-00460-COA.
    Court of Appeals of Mississippi.
    Aug. 15, 2006.

      Ramel Lemar Cotton, Jackson, attorney for appellant.
    Office of the Attorney General by Woody Woodcock, Jackie Tatum, attorney for appellee.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   KING, C.J.,

for the Court.

¶ 1. By order dated September 3, 2004, the Mississippi State Board of Architecture (Board) found that Raymond Broady had unlawfully engaged in the practice of architecture in this state. The Board found that Broady had (1) executed two contracts for architectural services while his license was inactive, and (2) used a Mississippi address in a transaction while a non-resident architect. As a result of these findings, the Board suspended Raymond Broady’s license to practice architecture in Mississippi, and ordered him to pay a fine of $10,000. Broady received this order by certified mail on September 16, 2004. Additionally, Broady was notified of his right to appeal the Board’s actions to the Chancery Court of Hinds County. Pursuant to Mississippi Code Annotated Section 73-1-31 (Rev.2004), Broady was notified that he had thirty days from the receipt of the order to file his notice of appeal and to post a $500 appeal bond with the Hinds County Chancery Clerk. On October 11, 2004, Broady filed his notice of appeal without the appeal bond. Broady tendered a check for $500.00, dated October 15, 2004, to the Hinds County Chancery Clerk on October 18, 2004, thirty-two days after his receipt of the Board’s order. On December 1, 2004, the Board moved to dismiss Broady’s appeal as being untimely. The motion cited his failure to comply with the statute requiring that both the notice of appeal and the appeal bond be filed within thirty days after receipt of notice from the Board. Broady filed a response to the Board’s motion on December 10, 2004, and a motion for an extension of time to file an appeal on December 16, 2004. The chancery court heard the Board’s motion to dismiss on February 22, 2005 and issued a bench opinion which granted the motion. A formal order of dismissal was entered on February 23, 2005. Aggrieved by the chancellor’s actions, Broady filed a notice of appeal on March 7, 2005. Finding that Broady’s appeal to the Hinds County Chancery Court was timely filed, this Court reverses that court’s dismissal of Broady’s appeal, and remand it to the Hinds County Chancery Court for further action.

DISCUSSION

¶ 2. The issue before this Court is whether Broady timely perfected his appeal of the Board’s actions to the Hinds County Chancery Court. However, to resolve that issue, this Court must determine the proper manner to compute the allowable time to perfect an appeal. That question is governed by Rule 6(a) of the Mississippi Rules of Civil Procedure, which reads, in part:

In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, as defined by statute, or any other day when the courthouse or the clerk’s office is in fact closed, whether with or without legal authority, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, a legal holiday, or any other day when the courthouse or the clerk’s office is closed....

¶ 3. Pursuant to M.R.C.P. 6(a), the time for Broady to perfect his appeal actually commenced on September 17, 2004, and under normal circumstances would have expired on October 16, 2004. However, in reviewing its 2004 calendar, this Court has determined that October 16, 2004 fell on a Saturday. Because the last day for Broady to perfect his appeal was Saturday, October 16, 2004, a day when the chancery clerk’s office was closed, pursuant to M.R.C.P. 6(a), the deadline was extended to the next regular business day, October 18, 2004. This is also the date upon which the record shows the $500.00 bond was noted as received and filed by the Hinds County Chancery Clerk.

¶ 4. Rule 6 of the Mississippi Rules of Civil Procedure is in all material respects identical to our own appellate Rule 26(a). This Court addressed this issue under Rule 26(a) of the Mississippi Rules of Appellate Procedure in Redmond v. Mississippi Dep’t of Corrections, 910 So.2d 1211 (Miss.Ct.App.2005). In Redmond, this Court stated, “Redmond had thirty days from entry of the order in which to file a notice of appeal. As the thirtieth day fell on Saturday, February 22, and under Rule 26(a) of the Rules of Appellate Procedure, Redmond had until Monday, February 24 (not a legal holiday) to file his notice.” Id. at 1211-12(¶ 3). This Court sees no reason to ignore the application of the identical rule to the trial courts. Therefore, this Court finds that Broad/s appeal was in fact timely filed.

¶ 5. The concurring opinion notes that it reaches the same conclusion as the majority, but in a different fashion.

¶ 6. The concurring opinion says that the majority opinion incorrectly applies the Mississippi Rules of Civil Procedure to an administrative procedure. It attempts to support this statement by citation to Miss. Employment Sec. Comm. v. Parker, 903 So.2d 42 (Miss 2005). That citation does not seem to support the position argued by the concurrence. In Parker, the issue was procedural compliance for appeal to, rather than from, an administrative agency. It is at that point which the supreme court said it was inappropriate to apply the rules of civil procedure to administrative hearings or appeals. Id. at 45(¶ 8).

¶ 7. In the case sub judice, the appeal is to the chancery court from the administrative agency. It is therefore to proceedings in the chancery court that we have applied the rules of civil procedure. Specifically, the rules of civil procedure are applied to determine the jurisdiction of the chancery court, as opposed to some action by the administrative agency. Such an application is in fact consistent with Rule 1 of Mississippi Rules of Civil Procedure, which provides:

These rules govern procedure in the circuit courts, chancery courts, and county courts in all suits of a civil nature, whether cognizable as cases at law or in equity, subject to certain limitations enumerated in Rule 81; however, even those enumerated proceedings are still subject to these rules where no statute applicable to the proceedings provides otherwise or sets forth procedures inconsistent with these rules. These rules shall be construed to secure the just, speedy, and inexpensive determination of every action.

¶ 8. As a part of its circumnavigation in this matter, the concurrence holds that Broady’s time for appeal started on September 4, 2004, the day after the order was dated rather than on September 17, 2004, the day after receipt of the notice by Broady. That the time for filing an appeal began on September 4, 2004, is an issue raised only by the concurrence, and not by either party. Under Mississippi Rule of Appellate Procedure 28(a)(3), this Court does not address issues not raised by the parties, except as plain error. If the concurrence correctly finds that issue as plain error, then it must likewise find a lack of jurisdiction in the chancery court and in this court. The remedy for lack of jurisdiction is dismissal of the appeal.

¶ 9. The concurrence can not have it both ways.

¶ 10. The majority opinion correctly addresses the issues before this Court consistent with the Rules of Appellate Procedure and the decisions of our courts. Thus, the trial court erred in dismissing Broady’s appeal. Accordingly, this matter is reversed and remanded to the trial court.

¶11. THE JUDGMENT OF THE HINDS COUNTY CHANCERY COURT IS REVERSED AND THIS MATTER IS REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. AT J, COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, AND ISHEE, JJ., CONCUR. SOUTHWICK, J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY LEE, P.J., IRVING, GRIFFIS, BARNES AND ROBERTS, JJ. IRVING AND ROBERTS, JJ., CONCUR IN RESULT ONLY.

SOUTHWICK, J.,

Concurring.

¶ 12. With respect, I find that the two issues addressed by the majority need to be considered in a somewhat different manner. Still, I agree with reversing and remanding.

¶ 13. The majority concludes that one of the Rules of Civil Procedure is relevant in interpreting the statute on appeals from the Board of Architecture to a chancery court. M.R.C.P. 6. However, since these rules apply only to “suits of a civil nature,” they are inapplicable. M.R.C.P. 1. An appeal to a chancery court from a state agency is not a suit brought in chancery court. The chancellor acts as an appellate judge, just as this Court acts, and not as a trial judge in a civil suit. The Supreme Court has several times held that it is error to use these rules to set procedures at an administrative agency. E.g., Mississippi Emp. Sec. Comm’n v. Parker, 903 So.2d 42, 45 (Miss.2005). I conclude that the rules similarly are inapplicable when computing the time for agency appeals.

¶ 14. I reach the same result as the majority, though, on the computation of a thirty-day time period. There is general statutory guidance on calculating a number of days:

When process shall be required to be served or notice given any number of days, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, a Sunday or a legal holiday, or any other day when the courthouse or the clerk’s office is in fact closed ..., in which event the period runs until the end of the next day [that is a governmental business day.]

Miss.Code Ann. § 1-3-67 (Rev.2005).

¶ 15. According to the statute authorizing appeals from the Board of Architecture, an appeal must be taken within thirty days after the board order that is being challenged. Miss.Code Ann. § 73-1-31 (Rev.2004). That statute also requires the appellant to file a notice of appeal with the chancery court. Section 1-3-67 establishes the computation of the thirty days within which to file this notice. I agree with the majority that if the last day falls on a weekend or holiday, the effective final day for the notice to be filed is the next day in which government offices are open. That result follows from this statute, though, and not a Rule of Civil Procedure.

¶ 16. The next issue is whether it is proper to begin the computation of the thirty days on the day after a party received notice of the final decision. In my view, the statute authorizing appeals from the Board of Architecture does not permit that approach: “Within thirty (30) days after any order, judgment or action of the board, any person aggrieved thereby may appeal such order, judgment or action .... ” Miss.Code Ann. § 73-1-31 (Rev. 2004). The Board of Architecture’s final decision is dated September 3, 2004. Thirty days after that, using the computation method of section 1-3-67, was October 3, 2004, a Sunday. October 4 was the deadline for this appeal and it was missed.

¶ 17. Certainly delays may occur in a party’s becoming aware of a judgment from which an appeal should be taken. However, the Board of Architecture statute is far from the only one that starts the appellate calendar from the date of the decision appealed and not from a party’s receipt of a copy of the decision. Issues have frequently arisen under the statute controlling appeals from the board of review at what is now the Mississippi Department of Employment Security. ‘Within ten (10) days after the decision of the board of review has become final, any party aggrieved thereby may secure judicial review thereof by commencing an action, in the circuit court....” Miss.Code Ann. § 71-5-531 (Rev.2000). This language has been interpreted to require appeal by that deadline, despite delays in notice of the decision reaching an aggrieved party. An extension of time beyond ten days from the judgment is not permitted “absent some event, not caused by a party, affecting that party’s rights.” Mississippi Emp. Sec. Comm’n v. Powell, 787 So.2d 1277, 1281 (Miss.2001).

¶ 18. Not only are there statutes similar to the Board of Architecture’s appeal statute regarding other agencies, but the period — also thirty days — for taking appeals from final judgments of trial courts begins with the date of the decision, not the date of receipt of notice of the decision. M.R.A.P. 4(a) (appeal must be taken within thirty days “after the date of entry of the judgment or order appealed from.”) There is nothing extraordinary about the natural meaning of the Board of Architecture appeal statute nor with the conclusion that Broady’s appeal was two weeks late.

¶ 19. There is one other factor complicating this analysis. The Board letter that was sent with the order stated that Broady had thirty days from receipt to appeal. I agree with the majority’s conclusion that Broady filed his notice of appeal and equivalent of a bond within that thirty day period. I disagree, though, that he had thirty days from receipt.

¶ 20. If the statute is ambiguous, deference will be given to an agency’s interpretation announced by rule or other coherent and consistent means. Wilkerson v. Mississippi Emp. Sec. Comm’n, 630 So.2d 1000, 1002 (Miss.1994); Mississippi Gaming Comm’n v. Six Electronic Video Gambling Devices, 792 So.2d 321, 328-29 (Miss. Ct.App.2001). If the interpretation is contrary to the clear statutory language, no deference is shown. Id.; American Fed. Life Ins. Co. v. Dale, 701 So.2d 809, 812 (Miss.1997). The statute here is not ambiguous. Nothing in the statutory language suggests that receipt of notice by a party is relevant to the time to take an appeal. The natural reading of the language and the common practice for appeals is to start the count towards the filing deadline with the judgment. It is error for the Board of Architecture to interpret otherwise.

¶ 21. What these facts raise is whether a party may lose his procedural rights if he complies with the proper state agency’s guidance that is inconsistent with the governing statute. Is due process or some other sufficient interest implicated if we fail to uphold for this case the ostensibly authoritative direction in the letter from the Board to Broady?

¶ 22. I start on this issue with the point that the Board’s directions to Broady as to the time for appeal encroached on a matter of interpretation that may only be made authoritatively by the judiciary. The supreme court may well conclusively determine that I am wrong in my analysis of the appeal statute, but the point is that a party’s reliance on legal advice from whatever source is not necessarily a protection from the consequences of following erroneous advice. .

¶ 23. A Mississippi statute delegated to the Board of Architecture the administrative functions of managing the licensing of architects. The same set of statutes then provided for judicial review of some of the decisions. The State has created the system and neither the agency nor the courts can ignore the contribution of the other. One component of the bifurcated system for resolving disputes regarding licenses gave what appeared to be controlling direction to a citizen on the deadline for seeking review by the next part of the system. In my view, that direction was in error. To conclude that Broady’s reliance caused his appeal to be fatally late would mean the agency’s decision is now beyond review and the license is lost.

¶24. A similar disagreement between court and agency arose regarding notice that the United States Equal Employment Opportunity Commission gave on the time in which to seek judicial review of an unfavorable decision on a claim. Judge Charles Clark of the Court of Appeals for the Fifth Circuit wrote that to impose on a private party the effects of the judiciary’s disagreement with the agency as to the time for seeking judicial review would offend basic fairness:

In the present fact situation, the notice was patently misleading as to the completion of agency action, and neither party is shown to have sought clarification. Although we find the EEOC’s practice was erroneous and violative of the statutory right conferred upon the employer, AT & T, justice requires that we ... make our ruling prospective only from the date of this decision plus 90 days so that it will first apply to actions brought in this circuit on and after April 11, 1977. See Chevron Oil Company v. Huson, Part II, 404 U.S. 97, 105-109, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). Under this reasoning, we will not visit the effects of EEOC’s erroneous practice on Mrs. Zambuto who was misled by terminating her right to judicial examination of her employer’s conduct. Because we hold the June 24 letter did not start the running of the 90-day limit on filing suit, the trial court was in error in dismissing the action.

Zambuto v. American Tel. & Tel. Co., 544 F.2d 1333, 1336 (5th Cir.1977).

¶ 25. Though a United States Court of Appeals panel in Zambuto did not “visit the effects” of an agency’s improper written statutory explanation on a party, the Mississippi Supreme Court arguably took a different approach in a precedent already cited. The Mississippi Employment Security Commission told its examiners who heard appeals of claims within the agency that they should allow three days beyond the statutory limit of fourteen days when notice of the earlier decision was sent by mail. Wilkerson, 630 So.2d at 1001. The Supreme Court held that the policy was inconsistent with the statute and then visited the effects of the conclusion on the party. Id. at 1002-3. The opinion described the Commission’s approach as an “unwritten practice subject to ad hoc and sporadic application.” Id. at 1002. Other arbitrariness issues might arise from the inconsistency of the practice, but the key distinction from the present case is that the Supreme Court did not mention that there was public notice of the practice. Notice would have created issues of reliance.

¶ 26. Were we to give no effect to the Board’s guidance, a denial of Broady’s due process rights could result. Life, liberty and property may not be deprived without due process of law. U.S Const. Amend. V & Amend XIV, § 1; Miss. Const. Art. 3, § 14. Withdrawing a license needed for the practice of one’s profession takes a property interest. Mississippi State Bd. of Nursing v. Wilson, 624 So.2d 485, 494 (Miss.1993). The State through an agency gave notice of a procedure for a party to follow. If that advice is erroneous and when followed causes the party to lose his rights, there is an arbitrariness that fails to grant the process that is due. See, e.g., McFadden v. Mississippi State Bd. of Med. Licensure, 735 So.2d 145, 158 (Miss. 1999). I find that to be true here even if a party should know that an agency does not have the authority to define the judicial review procedures. Since this agency undertook to notify a party of his rights, under the present facts we must approve the effects of that advice or else contribute to the denial of due process. I would declare that in future appeals to chancery court, though, that guidance has no effect.

¶ 27. In longer and more tedious fashion, I reach the same conclusion as the majority.

LEE, P.J., IRVING, GRIFFIS, BARNES AND ROBERTS, JJ., JOIN THIS OPINION.


author: LEE, P.J.,

text:
    Louis Edward BROWN, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00432-COA.
    Court of Appeals of Mississippi.
    Aug. 15, 2006.

      William E. Goodwin, attorney for appellant.
    Office of the Attorney General by Jacob Ray, attorney for appellee.
    Before LEE, P.J., SOUTHWICK and ISHEE, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On January 30, 2004, a jury in the Pike County Circuit Court found Louis Brown guilty of the crimes of murder and first degree arson. Brown was sentenced to serve twenty years on the first degree arson charge and a term of life on the murder charge, both to be served consecutively in the custody of the Mississippi Department of Corrections. Brown was also ordered to pay attorney’s fees, court costs and a $5,000 fine to the Crime Victims’ Compensation Fund. Brown filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which the trial court denied. Aggrieved, Brown now appeals to this Court asserting the following points of error: (1) the trial court erred in failing to suppress Brown’s statement; (2) the trial court erred in failing to grant a continuance when new evidence was discovered; (3) the victim’s medical records were admissible; (4) there was evidence of prosecutorial misconduct; (5) the trial court erred in refusing to allow him to cross-examine Officer Perryman about his investigation into Melvin Addison, the victim’s estranged husband; (6) the trial court erred in allowing Officer Randy Perryman to give testimony concerning fingerprint evaluations; (7) he was denied effective assistance of counsel; (8) the jury verdict was against the overwhelming weight of the evidence; and (9) the cumulative error in the above issues necessitates a new trial.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On the morning of August 26, 2002, a mobile home located in Magnolia, Mississippi, was discovered burning. Shandolyn Addison’s burned body was found face down directly outside the mobile home. An autopsy revealed that Addison died from blunt force trauma to the back of her head and not from smoke inhalation. Investigators also determined that the fire was intentionally set inside the mobile home. Addison lived in the mobile home with Brown.

¶4. A witness, Emma Love, testified that, around the same time of the fire, she saw Brown sitting in her old abandoned car. Love stated that Brown sat in her car for a few moments before running away. The police later found a red gas can inside Love’s car.

¶ 5. Addison’s father, Melvin Cook, worked with Brown and testified that the red gas can belonged to him. Cook also testified that Brown had borrowed the gas can on numerous occasions and had access to it on the day of the fire. Cook stated that he had heard Brown say he would destroy Addison and the trailer if Addison ever left him.

DISCUSSION

I. DID THE TRIAL COURT ERR IN FAILING TO SUPPRESS BROWN’S STATEMENT?

¶ 6. In his first issue on appeal, Brown argues that the trial court erred in failing to suppress his statement to the police. Specifically, Brown claims that because of his low IQ he did not have the capacity to waive his rights in a knowing and intelligent manner. A statement by a defendant is admissible if the defendant was given a Miranda warning, and then knowingly, intelligently and voluntarily waived his rights. Busick v. State, 906 So.2d 846, 855(¶ 16) (Miss.Ct.App.2005) (citing Moore v. State, 493 So.2d 1301, 1303 (Miss.1986)). Whether there was an intelligent, knowing and voluntary waiver must be determined from the totality of the circumstances. McGowan v. State, 706 So.2d 231, 235(¶ 12) (Miss.1997). Furthermore, the standard of review for a trial court’s decision to admit or exclude evidence is abuse of discretion. Graves v. State, 492 So.2d 562, 565 (Miss.1986).

¶ 7. Prior to signing a Miranda waiver of rights form, Brown was advised of his rights and informed Officer Randy Perry-man that he understood his rights. Brown then answered questions concerning the fire and Addison’s death. At no time during his statement did Brown ever admit to committing either murder or arson. In fact, Brown was adamant that Addison was about to take a shower at their mobile home when he smelled smoke, confirmed that Addison also smelled smoke and then left the house.

¶ 8. Approximately one year after the murder and arson, Brown underwent a court-ordered psychological examination conducted by Beverly Smallwood, Ph.D. After the exam, during which Dr. Small-wood conducted tests to determine Brown’s IQ, Dr. Smallwood concluded that Brown was competent to stand trial. Dr. Smallwood further concluded that, at the time of the crimes, Brown was capable of distinguishing between right and wrong. As Brown had previously been convicted of a felony, she found he exhibited knowledge of how trials work. Dr. Smallwood’s test results showed Brown functioned with a verbal IQ of 66, a performance IQ of 68, and a full scale IQ of 64. According to Dr. Smallwood’s report an average full scale IQ score is 70 or higher. In her report, Dr. Smallwood stated as follows: “I do find that this Defendant is able to converse and reason with his attorney. However, I have significant concerns about the impact of his intellectual impairment on his ability to knowingly, intelligently, and willfully assert or waive his rights.” Dr. Smallwood determined that no further mental health treatment was necessary. Dr. Smallwood was not called as a witness during trial in order to more fully discuss the results of her examination.

¶ 9. In ruling on Brown’s motion to suppress his statement, the trial court found as follows: “He [Brown] was consistent at all times in denial of any involvement. He was at all times coherent and lucid. His thought patterns were very reasonable. Did not appear to be of any diminished capacity....” The trial court also discussed the mental evaluation as follows:

I considered and read Dr. Smallwood’s report. And I have confidence in Dr. Smallwood. She is a very competent psychologist. But to have an IQ of 64 or 68 or whatever — there were several numbers given. To have an IQ of that number, Mr. Brown was, his verbal score I think was the highest. And he was, he did very well communicating yesterday, or at least on this tape. He did very well expressing himself. And it just, it didn’t appear to me at all that he had diminished capacity, based on what I heard in the tape.

¶ 10. The mental ability of the defendant is but one factor for the trial court to consider when determining whether a defendant’s statement is admissible. See Neal v. State, 451 So.2d 743, 756 (Miss. 1984). After reviewing Dr. Smallwood’s report, Brown’s statement in question and the hearing on the motion to suppress, we cannot find that the trial court abused its discretion in allowing the jury to hear Brown’s statement denying involvement in the crimes. This issue is without merit.

II. DID THE TRIAL COURT ERR IN REFUSING TO GRANT A CONTINUANCE WHEN NEW EVIDENCE WAS DISCOVERED?

III. WERE THE VICTIM’S MEDICAL RECORDS ADMISSIBLE?

¶ 11. As Brown’s second and third issues relate to Addison’s medical records, we will address them together. In his second and third issues on appeal, Brown argues that the trial court erred in refusing to grant a continuance when new evidence was discovered. Specifically, Brown claims that Addison’s medical records should have been allowed into evidence as the content of the records was relevant and exculpatory. Apparently, the medical records contained evidence that Addison had been previously treated for gasoline addiction. On January 29, 2004, a few days after the start of the trial, Brown’s attorney informed the trial court that he had received information concerning Addison’s medical history and sent his investigator, Don Evans, to obtain her medical records.

¶ 12. After much arguing and debate about the admissibility of Addison’s medical records, including whether these records were legally obtained, Brown’s attorney decided not to use the records. Evidently, Brown’s attorney thought the State was going to introduce witnesses to testify that Addison told them Brown was going to kill her. Brown was then going to use Addison’s medical records to show that Addison was delusional and a gasoline addict. Brown’s attorney stated the following: “If the State will just agree not to call any of these people or offer any of these hearsay statements about what she said that he intended to kill her, then, Your Honor, we don’t need the medical records.” The State responded that they did not intend to offer into evidence any statements Addison made concerning her fears about Brown. Brown’s attorney replied that, “We could have saved an awful lot of time.”

¶ 13. As Brown ultimately decided not to pursue the issue of whether the medical records were admissible, we fail to see how he can now claim that he should have been granted a continuance to properly obtain the records or that the trial court should have allowed the records to be admitted anyway. These issues are without merit.

IV.WAS THERE EVIDENCE OF PROSECUTORIAL MISCONDUCT?

¶ 14. In his fourth issue on appeal, Brown argues that there was evidence of prosecutorial misconduct and, thus, he was denied a fair trial. Specifically, Brown asserts that the prosecutor, Danny Smith, threatened Don Evans, the investigator from the Public Defender’s Office, with criminal action; asked Addison’s family members to assert a medical privilege on behalf of Addison in order to keep out possible exculpatory evidence; and attempted to elicit information that Brown had refused a polygraph exam.

¶ 15. In regards to Smith’s threatening Evans with criminal action, the record reflects Smith’s statement that he has no intention of instituting criminal proceedings against Evans. Furthermore, Smith stated this after a long and often antagonistic discussion with Brown’s trial attorneys, specifically Paul Luckett, concerning the admissibility of Addison’s medical records and Luckett’s advice to Don Evans to plead the Fifth Amendment while testifying about how Evans obtained Addison’s medical records. Also, all these discussions were outside the presence of the jury. We cannot find misconduct in this instance.

¶ 16. In regards to Smith’s asking Addison’s family members to assert a medical privilege on behalf of Addison in order to keep out possible exculpatory evidence, we fail to see merit in this issue. At no point in the record does Brown object to Addison’s daughter, Cashassity Harris, asserting a medical privilege on behalf of Addison. Failure by defense counsel to contemporaneously object to a prosecutor’s remark at trial bars consideration of prosecutorial misconduct allegations on appeal. Davis v. State, 660 So.2d 1228, 1255 (Miss.1995). Regardless of Brown’s failure to object, Brown ultimately decided not to place the medical records into evidence.

¶ 17. In regards to the comments about Brown’s refusal to take a polygraph, Brown’s argument is that having the jury hear the word “polygraph” was enough to deny Brown a fair trial. During his testimony, Officer Perryman stated that he went to see Brown in jail to talk with him a second time after the original statement. Officer Perryman stated: “And I asked him about, I say, you know, the last time we talked, you say you would do a polygraph, will you do a polygraph for me.” After a brief discussion at the bench, the State changed the line of questioning and the polygraph was not mentioned.

¶ 18. Our supreme court has held the following to be inadmissible: testimony pertaining to a witness’s refusal or offer to take a polygraph; the fact that a witness took a polygraph; or the results of a polygraph test. Weatherspoon v. State, 732 So.2d 158, 163(¶ 15) (Miss.1999). However, automatic reversal is not always required; instead, when the rule is violated, “the courts have generally looked to the nature of the error and the circumstances attendant to its disclosure.” Garrett v. State, 549 So.2d 1325, 1330 (Miss.1989). Under the facts and circumstances of this case, we cannot find that any error occurred. Officer Perryman’s statement concerning the polygraph was not elicited by the State; rather, Officer Perryman was testifying as to his procedure upon interrogating Brown a second time.

¶ 19. We find no proof of prosecutorial misconduct; thus, this issue is without merit.

V. DID THE TRIAL COURT ERR IN REFUSING TO ALLOW BROWN TO CROSS-EXAMINE OFFICER PERRYMAN ABOUT HIS KNOWLEDGE OF MELVIN ADDISON?

¶ 20. In his fifth issue on appeal, Brown argues that the trial court erred in refusing to allow him to cross-examine Officer Perryman about his knowledge of Melvin Addison. Melvin Addison was the husband of Shandolyn Addison and gave her a ride home hours before her murder. Apparently, Addison and Melvin had been living apart for some time but were still speaking with each other.

¶ 21. During cross-examination, Brown attempted to elicit information concerning Officer Perryman’s background check on Melvin Addison. Brown wanted information concerning possible arrests. The trial court refused to allow this line of questioning, finding that “the criminal record of Melvin Addison has not been shown to be relevant at this time. It may be later, but I sustain the objection to the question at this time.”

¶ 22. Later, during Melvin Addison’s testimony, this issue resurfaced. Brown again attempted to elicit information concerning Melvin’s arrest record. However, at this time, Brown’s attorney admitted that Melvin Addison had no assault convictions against Addison. Rather, Melvin’s file contained assault charges signed by Addison, all of which had been dismissed. The trial court found “The fact that they are charges and not convictions, and without anything further, I find that they are irrelevant and if they aren’t relevant they are so much more unduly prejudicial than probative that they will be excluded under Rule 403.” Relevancy and admissibility of evidence are largely within the discretion of the trial court, and this Court will only reverse when that discretion has been abused. White v. State, 742 So.2d 1126, 1134(¶ 29) (Miss.1999). We can find no abuse of discretion by the trial court; thus, this issue is without merit.

VI. DID THE TRIAL COURT ERR IN ALLOWING OFFICER RANDY PERRYMAN TO GIVE TESTIMONY CONCERNING FINGERPRINT EVALUATIONS?

¶ 23. In his sixth issue, Brown argues that Officer Perryman was not an expert on fingerprints and should not have been allowed to testify about obtaining fingerprints. During cross-examination of Officer Perryman, Brown’s attorney asked him, ‘You did not fingerprint that gas can that you found, did you?” Officer Perry-man responded in the negative. Brown’s attorney also asked him, “Do you have any fingerprints to say that that is my client’s gas can?” Officer Perryman again responded in the negative. On redirect, the State asked Officer Perryman to explain why he did not fingerprint the gas can. Officer Perryman responded that he knew Brown worked on yards with Addison’s father. He further stated, “And also with material that [the gas can] is made out of....” Brown then objected, stating that Officer Perryman was not qualified to give an opinion on the gas can’s material. The trial court overruled the objection, stating that Brown had brought up the subject on cross-examination.

¶ 24. Officer Perryman continued testifying, stating that it would be hard to pull prints off a gas can because of the material. Brown again objected stating that he was not qualified to discuss such matters. The trial court overruled the objection and then asked the State to lay a foundation for Officer Perryman’s response, namely that Officer Perryman is trained in taking latent fingerprints and does so on a regular basis.

¶ 25. Brown mainly argues that Officer Perryman should have been qualified as an expert in fingerprints before he could testify on such matters. However, we are unconvinced by this argument as Brown clearly began this line of questioning by asking Officer Perryman about why he decided not to fingerprint the gas can. Furthermore, as one of Officer Perryman’s duties as an investigator was to take fingerprints off various objects, it was proper for Officer Perryman to testify as to why he did not take fingerprints on this particular occasion. This issue is without merit.

VII. WAS BROWN DENIED EFFECTIVE ASSISTANCE OF COUNSEL?

¶ 26. In his seventh issue on appeal, Brown argues that he was denied effective assistance of counsel. For a defendant to prevail on a claim of ineffective assistance of counsel, he must prove (1) that his counsel’s performance was deficient and; (2) that he was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Defense counsel is presumed competent. Woodward v. State, 843 So.2d 1, 7(¶ 14) (Miss.2003). “In order to overcome this presumption, the appellant must demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Phinisee v. State, 864 So.2d 988, 990(¶ 9) (Miss.Ct.App.2004). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

¶ 27. Brown argues that his trial counsel failed to call Dr. Smallwood to explain the results of her examination; his trial counsel did not understand the proper method of obtaining medical records and the procedures to introduce them into evidence; the medical records should have been proffered to preserve the record for appeal; and trial counsel allowed themselves to be bullied by the State, making them lose control over the case.

¶ 28. Brown claims that the record is clear that his trial counsel lost control of the case, but, after reviewing the entire record, we find Brown’s assertion not so clear. The record contains instances of many heated exchanges between the State and Brown’s trial counsel, mostly during discussions concerning Addison’s medical records. These exchanges clearly show that Brown’s trial counsel vigorously defended him, quite the opposite of what Brown alleges.

¶ 29. In regards to the failure to call Dr. Smallwood as a witness, we fail to see how calling Dr. Smallwood to the stand would have changed the outcome of the proceedings. Although Dr. Smallwood expressed concern about Brown’s ability to knowingly waive his rights, Dr. Smallwood discussed at length that Brown had a clear understanding of the trial process and knew the difference between right and wrong. The situation might have been different had Brown initially confessed to the crime rather than adamantly proclaim his innocence.

¶ 30. In regards to proffering the medical records, Brown’s trial counsel decided not to admit them into evidence after learning their reason for admitting them was moot. Although other attorneys may have made a proffer at that point, in the case at bar, there was still the issue of whether the records were admissible as Addison’s daughter had claimed the physician-patient privilege on behalf of Addison. From the record it is clear that a subpoena was issued for the records, but, according to the testimony of the investigator, Don Evans, it is unclear whether these records were properly obtained. Don Evans was asked by the trial court if his response to questioning concerning the procurement of the medical records was going to incriminate him in a crime, to which Evans responded, “It appears so, sir.”

¶ 31. Were we to find that Brown’s trial counsel was deficient, Brown has still failed to show that this supposed deficient performance prejudiced his defense. This issue is without merit.

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

¶ 32. In his eighth issue, Brown argues that the trial court erred in refusing to grant a new trial because the jury verdict was against the overwhelming weight of the evidence. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005). The appellate court sits as a hypothetical “thirteenth juror.” Id. As such, the Court weighs the evidence “in the light most favorable to the verdict.” Id. If, in this position, the Court disagrees with the verdict of the jury, “the proper remedy is to grant a new trial.” Id.

¶ 33. Brown claims that there was no evidence of his guilt, thus a reasonable jury could not have found him guilty. However, in weighing the evidence in the light most favorable to the guilty verdict, we cannot agree with Brown’s claims. From the record it is clear that Brown was the last person to see Addison alive; Brown stated that he was alone with Addison when the fire started; Brown was seen near the scene of the crime; a gas can was found in the abandoned car where Brown had been sitting; there was testimony that Brown had access to this particular gas can and had used it in the past; Brown was heard threatening to destroy Addison and their trailer if she ever left him; there was testimony that the fire was incendiary in nature and had been started inside the trailer; and there was testimony that gasoline was the accelerant. We cannot find that allowing the guilty verdict to stand would sanction an unconscionable injustice; thus, this issue is without merit.

IX. DOES CUMULATIVE ERROR NECESSITATE A NEW TRIAL?

¶ 34. Finding all of Brown’s arguments to be without merit, we find no cumulative error that would necessitate a reversal. Therefore, we affirm.

¶ 35. THE JUDGMENT OF THE PIKE COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, FIRST DEGREE ARSON AND SENTENCE OF TWENTY YEARS AND COUNT II, MURDER AND SENTENCE OF LIFE TO RUN CONSECUTIVELY WITH SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAY RESTITUTION OF $5,000 TO THE CRIME VICTIMS COMPENSATION FUND, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

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