author: ISHEE, J.,

text:
    Richard Harrison MASON, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00052-COA.
    Court of Appeals of Mississippi.
    May 15, 2007.
    Rehearing Denied Sept. 11, 2007.
    Certiorari Denied Dec. 13, 2007.
    John Carl Helmert, attorney for appellant. ■
    Office of the Attorney General by Jacob Ray, attorney for appellee.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. On February 7, 2005, Richard Harrison Mason was indicted by a Lee County grand jury for two counts of sexual battery of his stepson, J.B. J.B. was eleven years old at the time the incidents occurred. The first count charged Mason with sexual penetration of J.B.’s rectum with his finger and the second count charged him with sexual penetration of J.B.’s rectum with his penis. Trial was held in the Lee County Circuit Court on November 21-22, 2005. The jury returned a verdict of guilty for Count II but was unable to reach a verdict as to Count I. On November 3, 2005, Mason was sentenced to serve thirty years in the custody of the Mississippi Department of Corrections. Aggrieved by the judgment, Mason appeals. Finding no error, we affirm.

FACTS

¶ 2. This case arose from complaints made by J.B. that suggested his stepfather, Richard Mason, was sticking his finger and penis into J.B.’s rectum. Mason was indicted for two counts of sexual battery, Count I for inserting his finger into J.B.’s rectum and Count II for inserting his penis into J.B.’s rectum. The indictment stated the acts occurred between September 1, 2004, and November 30, 2004.

¶ 3. When he was arrested, Mason signed a waiver of his rights during questioning by the Lee County Sheriffs Department. He made a handwritten confession to the sexual battery charges that was witnessed by investigator Donna Franks. The State presented Franks at trial, and she testified that she advised Mason of his rights and witnessed him write the confession.

¶ 4. At trial, the State also presented Patricia Harris, J. B.’s special education teacher, and Craig Shannon, the principal of J.B.’s school, who both testified that J.B. informed them that Mason “put his wiener in his butt.” The State also presented a therapist, Melissa Ratliff, who conducted the forensic interview of J.B. According to her, J.B. gave very detailed information, and she recommended that J.B. receive a medical examination and that Department of Human Services (DHS) continue its investigation of the case.

¶5. Dr. William Marcy testified that J.B.’s rectum appeared to be irritated and swollen. He further stated that the folds in the anus were “markedly distorted,” and there was Assuring and deep scarring around J.B.’s anus. According to Dr. Marcy, the age of the scarring could not be determined, but it could have occurred years earlier. He testified that the Assuring, however, would have to have occurred more recently in time, likely within the past six months. His conclusion was that J.B.’s case was one of the few instances, out of the approximately 1,500 exams he had conducted, that he could conclusively label as sexual abuse.

¶ 6. To rebut the State’s expert, who testified that J.B. was the victim of sexual abuse, Mason attempted to present the testimony of C.G. Outside the presence of the jury, C. G., who is the eight-year-old nephew of Mason, testified that he witnessed J.B. stick various objects into his rectum, including J.B.’s fingers, twigs, and a water sprinkler. According to C.G., the events from his testimony took place in either 2001 or 2003 while J.B. was staying with C.G.’s family in West Virginia. When cross-examined, however, J.B. denied that he had inserted any objects into his rectum.

¶ 7. The trial judge looked to Rules 608, 611, and 403 of the Mississippi Rules of Evidence and decided not to admit C.G.’s testimony. The judge ruled that C.G.’s testimony was extrinsic evidence concerning alleged specific acts of J.B. Since J.B. had denied the events presented in C.G.’s testimony, the judge reasoned that Rule 608(b) served to prevent Mason from putting on extrinsic evidence to rebut J.B.’s testimony.

¶ 8. Furthermore, the judge ruled that C.G.’s testimony was inadmissible under Rule 403. While she mentioned that she almost wished the evidence could come in, she found it inadmissible since it would not rebut the charge in the indictment. She reasoned that C.G.’s testimony concerning acts that occurred in either 2001 or 2003 was irrelevant to the present ease since the indictment alleged Mason committed the offenses from September 1, 2004 to November 30, 2004. Based upon this, the judge found the testimony of C.G. had no relevance and was highly prejudicial to the victim. She ruled that the testimony would serve to mislead and confuse the jury, tending to distract from the acts for which Mason was on trial.

¶ 9. Mason also took the stand and denied the allegations. He testified that Officer Franks threatened him in order to get him to make the written confession. Furthermore, he denied ever having inserted his penis or his finger into J.B.’s rectum.

¶ 10. The jury found Mason guilty of Count II, inserting his penis into J.B.’s rectum, but was unable to reach a verdict on Count I. Mason was sentenced to thirty years in the custody of the Mississippi Department of Corrections. Aggrieved by the judgment, Mason appeals. He asks this Court to consider whether the trial court erred by excluding the testimony of C.G.

STANDARD OF REVIEW

¶ 11. The standard of review regarding the admission or exclusion of evidence is abuse of discretion. Yoste v. Wal-Mart Stores, Inc., 822 So.2d 935, 936(¶ 7) (Miss.2002). “[Ajbsent an abuse of that discretion, the trial court’s decision will not be disturbed on appeal.” McCoy v. State, 820 So.2d 25, 31(¶ 15) (Miss.Ct.App.2002).

ISSUE AND ANALYSIS

I. Whether the trial court erred by excluding the testimony of C.G.

¶ 12. Mason argues that the testimony of C.G. should have been admitted into evidence. His argument is that the testimony was relevant and that it would have shown that the injuries sustained by J.B. were self-inflicted. He puts forth a number of arguments to support this issue: (1) the testimony was relevant, (2) the testimony was not substantially more prejudicial than probative, (3) the testimony was admissible for impeachment, (4) the testimony was not evidence of sexual conduct, and (5) the exclusion of the testimony was not harmless error.

¶ 13. After reviewing the record, it is clear that the trial court did not abuse its discretion. The court ruled that the testimony offered was irrelevant, and collateral to the main issue of whether or not Mason committed the crime. The court further stated that the testimony was highly prejudicial and would likely mislead and confuse the jury. We do not find this was in error; therefore, this Court is not in a position to disturb that ruling.

¶ 14. Mississippi Rules of Evidence Rule 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 402 goes on to state in part that all relevant evidence is admissible unless excepted. Nevertheless, a court may exclude potentially relevant evidence under Rule 403 “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”

¶ 15. A trial court is given a certain amount of discretion in its decision of whether to admit or exclude evidence under Rule 403. Jones v. State, 920 So.2d 465, 467(¶ 32) (Miss.2006) (citing Jenkins v. State, 507 So.2d 89, 93 (Miss.1987)). “[T]he weighing and balancing task required by Rule 403 is not one susceptible of mechanical performance as it asks only that a judge rely on his/her own sound judgment.” Id. Because of the discretion granted to a trial court, an appellate court will not conduct a new Rule 403 balancing test. Jackson v. State, 784 So.2d 180, 183(119) (Miss.2001) (citing Foster v. State, 508 So.2d 1111, 1117-18 (Miss.1987)). The appellate court need only determine if the trial court abused its discretion in weighing the factors and admitting or excluding the evidence. Id.

¶ 16. In applying Rule 403 to the present case, the trial judge found that the events testified to by C.G. were not relevant to the allegations contained in the indictment. Specifically, the indictment alleged that Mason committed the acts from September through November 2004, while C.G. stated that he saw J.B. insert objects into his rectum in either 2003 or 2001. C.G.’s testimony referred to events that allegedly occurred at least a year prior to the acts referred to in the indictment. The judge, accordingly, decided that these events were too remote to have any relevance to the charges, which were for a specific time period. She also found that, because of this lack of relevance, the jury would be misled and confused as to the allegations for which Mason was on trial. When considering the above, it is evident that the judge properly conducted a Rule 403 analysis to determine the prejudicial effect and probative value of C.G.’s testimony. It was within her discretion to exclude C.G.’s testimony because of its irrelevance, and we do not find that it was an abuse of discretion to do so.

1117. Relevance also plays a part in Mason’s argument concerning whether the testimony was admissible for impeachment. While Mason titles his next argument, “This eyewitness testimony was admissible to impeach the alleged victim,” he specifically states that C.G.’s testimony “was not elicited to impeach [J.B.].” The point of the argument instead seems to be that the testimony concerning the source of J.B.’s injuries was a central issue of the case and not a collateral matter elicited to impeach J.B.

¶ 18. Mason is misguided on this point also because of the relevancy issue discussed above. It is correct that a central issue of fact is not a collateral issue. Lewis v. State, 580 So.2d 1279, 1288 (Miss.1991). However, a collateral matter is one that is not directly relevant to the case at hand. Carlisle v. State, 348 So.2d 765, 766 (Miss.1977) (citing Williams v. State, 73 Miss. 820, 824, 19 So. 826, 827 (1896)). As stated above, the judge found that the testimony was irrelevant because of the remoteness of the events about which C.G. would testify. As those events were at least one year removed from the events alleged in the indictment, they were not relevant to the case at hand and are, therefore, collateral.

¶ 19. Mason next argues that Rule 412 of the Mississippi Rules of Evidence does not apply. Rule 412 provides that, in sex offense cases, evidence of the victim’s past sexual behavior is generally inadmissible. Rule 412 is only brought up once in the arguments concerning the admissibility of C.G.’s testimony, and the testimony itself does not allege that these acts were sexual in any way. Furthermore, the trial court did not make any findings concerning Rule 412. However, the reasoning of the supreme court in cases that dealt with evidence of an alternate explanation under Rule 412 is helpful to the present case. The court found evidence of the sexual activity of a victim of sexual abuse was admissible under Rule 412 when it suggested an alternate source of injury close in time to the alleged sexual abuse. Her- rington v. State, 690 So.2d 1132, 1136-37 (Miss.1997). Rule 412 was also inapplicable to exclude evidence that the victim had sex with someone else on the night the injuries allegedly occurred. Amacker v. State, 676 So.2d 909, 913 (Miss.1996). Similarly, the court found evidence that the victim might have had sex just a couple days before the date of the alleged incident was relevant and admissible to refute the allegation that the defendant was the source of semen. Heflin v. State, 643 So.2d 512, 516 (Miss.1994). However, in Hughes v. State, 735 So.2d 238, 273 (¶ 156) (Miss.1999), the supreme court affirmed the trial court’s exclusion of an alternate source of semen on the victim when the most relevant evidence the defense could offer was testimony about the victim’s sexual activity two weeks before the crime. Id. It found the trial court did not abuse its discretion in ruling that evidence so remote in time to the crime was irrelevant. Id. at 274 (¶ 158).

¶ 20. While this case involved testimony of a child allegedly inserting objects into his rectum, and not clear sexual activity as in the cited eases, the relevancy analysis in the cases dealing with Rule 412 serves to reinforce our findings. As seen in Hughes, evidence of an alternate explanation may be excluded when it is too remote to be of any relevance to the allegations at trial. While the trial judge did not apply Rule 412 to the present case, she did find that the evidence was irrelevant due to the amount of time between the events in the testimony and those in the indictment.

¶ 21. Mason’s final argument, that the exclusion of C.G.’s testimony was not harmless error, is moot because we find that it was not error at all to exclude it. Additionally, the State presented a handwritten confession that was made by Mason, in which he admitted to sticking both his finger and his penis in J.B.’s rectum.

¶22. In conclusion, we find that the judge properly excluded the testimony of C.G. because it was irrelevant and was highly prejudicial. It was a collateral issue that allegedly occurred over a year prior to the events alleged in the indictment; therefore, it did not serve to rebut the charges contained therein. This issue is without merit.

¶ 23. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT OF CONVICTION OF COUNT TWO, SEXUAL BATTERY, AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Initials will be used to protect the minor’s identity.


source: Caselaw Access Project

author: MYERS, P.J., GRIFFIS, J.,

license: Public Domain

text:
    Sheila F. HOWARD, Appellant v. PUBLIC EMPLOYEES’ RETIREMENT SYSTEM OF MISSISSIPPI, Appellee.
    No. 2005-CC-02186-COA.
    Court of Appeals of Mississippi.
    May 15, 2007.
    Rehearing Denied Oct. 9, 2007.
    Certiorari Denied Dec. 13, 2007.

      Paul D. Walley, Richton, attorney for appellant.
    Mary Margaret Bowers, attorney for ap-pellee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Sheila F. Howard appeals the ruling of the Hinds County Circuit Court, First Judicial District, which affirmed the administrative decision of the Public Employees’ Retirement System of Mississippi (PERS) to deny her application for permanent disability benefits. Howard, who suffers from chronic pain, weakness, and fatigue, brought on by a severe case of fi-bromyalgia, applied to the PERS Medical Board for permanent disability benefits after her condition rendered her unable to perform her normal duties as a kindergarten teacher. The Medical Board denied her application on the grounds that there was “insufficient objective medical evidence” to support her claim. Howard appealed the decision of the Medical Board to the PERS Disability Appeals Committee (Appeals Committee). Following a hearing, the Appeals Committee affirmed the findings of the Medical Board and sent its recommendation to deny disability benefits to the PERS Board of Trustees. The Board of Trustees adopted the Appeals Committee’s findings in a final written order. Howard then appealed to the Hinds County Circuit Court, First Judicial District. The circuit court affirmed PERS’ decision to deny disability benefits, holding that the decision was supported by substantial evidence. Finding error, we reverse, render and remand.

STATEMENT OF THE FACTS

¶ 2. Howard was employed as a kindergarten teacher with the Greene County School District. On May 23, 2003, Howard voluntarily terminated her employment complaining of chronic pain, weakness, and fatigue, brought on by a severe case of fibromyalgia. At the time the forty-seven-year-old Howard terminated her employment, she had fourteen years of state service credit as a school teacher. On June 25, 2003, Howard applied for permanent disability benefits with PERS pursuant to Mississippi Code Annotated section 25-11-113(l)(a) (Rev.2006), which provides in pertinent part:

[A]ny active member in state service who has at least four (4) years of membership service credit may be retired by the board of trustees ... provided that the medical board, after an evaluation of medical evidence that may or may not include an actual physical examination by the medical board, shall certify that the member is mentally or physically incapacitated for the further performance of duty, that such incapacity is likely to be permanent, and that the member should be retired....

¶ 3. The record indicates that Howard’s medical problems began nearly four years before the termination of her employment. Howard first sought medical treatment by presenting herself to the school nurse at Leakesville Elementary School. Howard complained that fatigue and body aches had begun to impede her job performance. Howard then visited Dr. Susan Folse, a specialist with Southern Bone & Joint, who tested Howard for lupus and ordered a bone scan. Neither test revealed any abnormalities. Dr. Folse suspected that Howard’s symptoms were indicative of fi-bromyalgia and prescribed Neurontin to alleviate Howard’s pain. Dr. Folse then referred Howard to Dr. Bertha Blanchard in Hattiesburg for further evaluation.

¶ 4. Dr. Blanchard first evaluated Howard on March 8, 2002, and concurred with Dr. Folse’s suspicions that Howard’s symptoms were indicative of fibromyalgia. In an attempt to exclude other possible causes of Howard’s symptoms, Dr. Blanchard ordered a battery of tests, including a CT scan of Howard’s spine, a CNS scan of Howard’s central nervous system, an electroencephalogram and Doppler Cerebro-vascular exam, an MRI of Howard’s brain, and a neurological exam. All tests produced normal results. Dr. Blanchard then referred Howard to Dr. Ruth Fredericks and Dr. Joe Leigh of the Pain Treatment Center in Hattiesburg for a second opinion. After examining Howard, Dr. Fred-ericks and Dr. Leigh deferred to Dr. Blanchard’s diagnosis of probable fibro-myalgia. Howard was also seen by several other doctors who conducted various tests on Howard, none of which are significant to our analysis, as they neither confirmed nor contradicted Dr. Blanchard’s original diagnosis.

¶ 5. Dr. Blanchard continued to treat Howard, noting that her examinations revealed pain triggering points consistent with fibromyalgia. Dr. Blanchard then diagnosed Howard with fibromyalgia, and on October 28, 2003, drafted a letter to PERS in which Dr. Blanchard stated that “Sheila Howard has a severe case of fibromyalgia, and in my opinion is not in any condition to be gainfully employed. This is due to the fact that she has chronic pain secondary to that and requires powerful analgesics for control of this pain.” In addition to Dr. Blanchard’s diagnosis, evidence was presented that the Social Security Administration found Howard disabled and granted Howard permanent disability benefits, which commenced on May 23, 2003. The record also contained a letter from Dennis Cochran, business administrator for the Greene County School District, in which he notified PERS that, although the school district had attempted to accommodate Howard’s condition, Howard was simply unable to perform her employment duties, despite her sincere desire to do so.

¶ 6. PERS then ordered an independent medical exam to be performed by Dr. Matthew B. Jones. Dr. Jones’ impression, after examining Howard on November 1, 2003, was that Howard suffered from chronic pain and fatigue, fibromyalgia, and a questionable demyelinating disorder. However, Dr. Jones noted that his examination of Howard presented only “subjective” signs of fibromyalgia, through pain triggering points, and lacked any “objective gross physical findings.” Apparently, based on Dr. Jones’ failure to find any “gross physical findings,” the Medical Board found that Howard had produced no “objective medical evidence” that she was unable to perform her job duties and denied her claim.

¶ 7. After the Medical Board denied her claim, Howard appealed to the Appeals Committee and a hearing was held on January 9, 2004. At the hearing, Howard testified to the severity of her medical condition and her inability to perform her job duties. The only other live testimony presented was that of Melissa Harvison, Howard’s co-worker at Leakesville Elementary School, who testified that over the last two years Howard’s physical condition had noticeably diminished and that Howard often appeared to be in pain while at work. The Appeals Committee heard the testimony and reviewed Howard’s medical records, including the letter from Dr. Blanchard, the letter from Dennis Cochran, and other evidence presented. The Appeals Committee then determined that Howard had failed to meet her burden of producing substantial evidence supporting her disability claim. Relying on the fact that no specific test for fibromyalgia had been performed on Howard, and stating that Dr. Blanchard’s diagnosis of fibro-myalgia was supported only by “subjective evidence” and that “there was no objective medical evidence upon which to basé an award of disability,” the Appeals Committee recommended that the Board of Trustees deny Howard’s application for permanent disability benefits.

¶ 8. The recommendation of the Appeals Committee was adopted by the Board of Trustees and Howard’s application was denied by final order of PERS. On appeal, the Hinds County Circuit Court, First Judicial District, affirmed the administrative decision of the PERS Board of Trustees, finding that the decision to deny benefits was supported by substantial evidence. Aggrieved by the judgment of the circuit court, Howard appeals to this Court and raises the following issue:

I. WHETHER THE CIRCUIT COURT ERRED IN HOLDING THAT THE ORDER OF THE PERS BOARD OF TRUSTEES WAS SUPPORTED BY SUBSTANTIAL EVIDENCE?

STANDARD OF REVIEW

¶ 9. This Court’s standard of review of an administrative agency’s findings and decisions is well established. As set forth in Rule 5.03 of the Uniform Rules of Circuit and County Court Practice, an agency’s conclusions must remain undisturbed unless the agency’s order: (1) is not supported by substantial evidence, (2) is arbitrary or capricious, (3) is beyond the scope or power granted to the agency, or (4) violates one’s constitutional rights. Public Employees’ Ret. Sys. v. Marquez, 774 So.2d 421, 425(¶ 11) (Miss.2000) (Fulce v. Public Employees Ret. Sys., 759 So.2d 401, 404(¶ 6) (Miss.2000); Davis v. Public Employees’ Ret. Sys., 750 So.2d 1225, 1229(¶ 12) (Miss.1999); Brinston v. Public Employees’ Ret. Sys., 706 So.2d 258, 259(¶ 6) (Miss.Ct.App.1998)). This Court may neither substitute its own judgment for that of the agency which rendered the decision nor reweigh the facts of the case. Marquez, 774 So.2d at 425(¶ 11) (citing Mississippi Pub. Serv. Comm’n v. Merchants Truck Line, Inc., 598 So.2d 778, 782 (Miss.1992)). A rebuttable presumption exists in favor of the action of an administrative agency, and the burden of proof is on the party challenging an agency’s action. Marquez, 11A So.2d at 425(¶ 11) (citing Brinston, 706 So.2d at 260).

DISCUSSION

¶ 10. Under our standard of review, the focus of this Court’s analysis is on whether there was substantial evidence in the record to support PERS’ decision that Howard failed to meet her burden of bringing forth substantial evidence of her disability. “Substantial evidence means something more than a ‘mere scintilla’ or suspicion.” Marquez, 774 So.2d at 425(¶ 13) (citing Mississippi Real Estate Comm’n v. Anding, 732 So.2d 192, 196(¶ 13) (Miss.1999)). Substantial evidence has further been defined by this Court as “such relevant evidence as reasonable minds might accept as adequate to support a conclusion.” Marquez, 774 So.2d at 425(¶ 13) (quoting Delta CMI v. Speck, 586 So.2d 768, 773 (Miss.1991)).

¶ 11. The question before the PERS Medical Board, Disability Committee, and Board of Trustees was whether or not Howard’s claim met the statutory requirements for receipt of permanent disability benefits. For the purposes of a disability determination, Mississippi Code Annotated section 25-ll-113(l)(a) (Rev.2006) contains two requirements. First, the Medical Board, after a medical examination, must certify that the applicant is “mentally or physically incapacitated for the further performance of duty, that such incapacity is likely to be permanent, and that the member should be retired.” Marquez, 774 So.2d at 425(¶ 14). Second, the medical board must apply the statutory definition of “disability” which reads:

[T]he inability to perform the usual duties of employment or the incapacity to perform such lesser duties, if any, as the employer, in its discretion, may assign without material reduction in compensation, or the incapacity to perform the duties of any employment covered by the Public Employees’ Retirement System (Section 25-11-101 et seq.) that is actually offered and is within the same general territorial work area, without material reduction in compensation.

Miss.Code Ann. § 25-ll-113(l)(a).

¶ 12. On appeal, PERS argues that its decision to deny benefits was supported by substantial evidence. In reaching this decision to deny Howard’s claim, PERS relied on medical records reviewed by medical professionals on the Medical Board, the lack of, what PERS calls, “objective medical evidence” supporting Howard’s claim, and the fact that Howard was offered a teaching contract by the Greene County School District for the 2003-2004 school year. PERS claims that the offer of a renewed contract calls into question the reliability of the letter offered by the business administrator for the Greene County School District, which stated that Howard was no longer able to perform her job duties. In addition to the above stated grounds, PERS also argues that there was no specific testing performed to substantiate Dr. Blanchard’s diagnosis of fibromyal-gia, and that rheumatological testing would have been a preferred method of diagnosis.

¶ 13. PERS ultimately concluded that Howard had not presented substantial evidence of her disability. Such a conclusion by the Medical Board naturally leads to the conclusion that the Medical Board believes that Howard is mentally and physically capable of performing her normal duties as a kindergarten teacher. The minority of this Court refuses to accept this conclusion as an accurate assessment of the PERS decision. However, in order to receive an award of disability benefits under section 25 — 11—113(l)(a), Howard was required to show the Medical Board substantial evidence that her medical condition had rendered her permanently incapacitated of- performing her duties as a kindergarten teacher, or any lesser duties that she may be assigned, and that she should be retired. Id. See also Marquez, 774 So.2d at 425(¶ 14). By concluding that Howard was not entitled to disability benefits, PERS also necessarily had to conclude that Howard is mentally and physically capable of performing her normal duties as a kindergarten teacher. This is contrary to the evidence presented.

¶ 14. Howard’s medical records reveal that she has been diagnosed with a severe case of fibromyalgia by Dr. Bertha Blanchard. This diagnosis has not been disputed by any of the numerous physicians who have treated Howard over the past four years, and even the independent medical examiner appointed by PERS, Dr. Matthew Jones, confirmed that Howard showed signs of fibromyalgia through pain trigger points. PERS argues that the pain trigger points are “subjective” evidence rather than “objective” evidence of fibromyalgia, and that such complaints should not be given the weight of more objective tests. This is not the first time PERS has made this argument. In Marquez, 774 So.2d at 427(¶ 22), PERS argued that the diagnosis of physicians based on “subjective” rather than “objective” medical evidence should not be given equal weight. PERS further argued in Marquez, that to do so would establish that “anyone who wishes to be classified as disabled would need only complain that they cannot perform their regular work duties.” Id. In ruling on this issue, our supreme court stated, “[i]f medical diagnoses by licensed physicians are to be labeled ‘subjective’ evidence of medical ailments, it is unclear what PERS would consider to be ‘objective’ evidence.” Id. The court then held that the diagnosis of Marquez’s medical condition, which included fibromyalgia, was undisputed in the record, as was the determination by her physician that she could not perform her regular job duties. Id. at 427(¶ 23).

¶ 15. In the case sub judice, an objective review of Howard’s medical records clearly indicates that she suffers from a severe case of fibromyalgia and can no longer perform her job duties. The only conclusion offered in the PERS’ order denying benefits is that Howard’s claim lacks sufficient “objective medical evidence.” In light of what this Court considers to be an objective diagnoses made by Howard’s treating physicians, and the fact that not one of the many doctors who examined Howard, including the independent medical examiner, Dr. Jones, contradicted Dr. Blanchard’s diagnosis that Howard had a permanently debilitating case of fibro-myalgia, we find PERS’ decision to deny benefits arbitrary and capricious and unsupported by the substantial evidence. Additionally, we note that Howard has been determined to be disabled by the Social Security Administration (SSA). While PERS is not bound by the determination of the SSA that a person is disabled, such a determination may be considered as further evidence in support of disability. Public Employees’ Ret. Sys. v. Allen, 834 So.2d 50, 54(¶ 12) (Miss.Ct.App.2002).

¶ 16. The minority of this Court charges that we have substituted our judgment as to the sufficiency of the evidence presented by Howard for that of the “five physicians” on the Medical Board, asserts that “PERS, through its medical doctors, [was] in a far better position to evaluate Howard’s medical history ...,” and proclaims that we must give deference to the PERS decision. We would be required to give deference to the PERS decision if medical evidence had been presented contradicting Howard’s disability claim, and PERS weighing the evidence as a fact finder had denied benefits. That is not what happened here. Rather, PERS arbitrarily denied Howard’s claim by declaring the medical evidence presented to be merely “subjective,” rather than “objective” indicacia of fibromyalgia. The only medical evidence presented in this case was offered in support of Howard’s claims, and that evidence went unrebutted by even the independent medical examiner appointed by PERS to examine Howard. As stated by our supreme court in Marquez, “[i]f medical diagnoses by licensed physicians are to be labeled, ‘subjective’ evidence of medical ailments, it is unclear what PERS would consider to be ‘objective’ evidence.” 774 So.2d at 427(¶ 22).

¶ 17. The minority would defer to the decision of the Medical Board as if it were an unbiased, independent body, with no stake in the outcome. We find it illogical to place the decision of the Medical Board on an equal plain with the evidence, when the evidence does not support the opinion. As in Marquez, the diagnosis that Howard’s medical condition has rendered her unable to perform her job duties is undisputed in the record, and in accordance with stare decisis we must reverse the decision of the circuit court affirming PERS’ decision. Accordingly, we hold that Howard was entitled to disability benefits and remand this case with instructions to award permanent disability benefits to Howard as allowed under applicable law.

¶ 18. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REVERSED AND RENDERED ON THE DENIAL OF BENEFITS AND REMANDED ON THE ISSUE OF THE BENEFITS AWARDED CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING, C.J., LEE, P.J., IRVING, CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

GRIFFIS, J.,

dissenting:

¶ 19. I respectfully disagree with the majority. In my opinion, the.majority errs by reweighing the evidence and substituting its judgment for that of PERS.

¶ 20. PERS’s finding was that the evidence presented, including the medical records, physician’s statements and testimony, was “insufficient objective evidence that Ms. Howard is disabled as defined in the PERS statute.” PERS determined that Howard failed to meet her “burden of proving to the Medical Board and to the Appeals Committee that he or she is in fact disabled.” Pub. Employees’ Ret. Sys. v. Dishmon, 797 So.2d 888, 893(1115) (Miss.2001). The majority suggests that the Medical Board concluded that Howard was mentally and physically capable of performing her normal duties as a kindergarten teacher. That is not the conclusion of PERS. PERS has no obligation to prove the Howard is not disabled. Instead, it is Howard who must prove that she is disabled. PERS, through the Medical Board, determined that there was insufficient testing and medical information available to support that medical finding.

¶ 21. The majority’s conclusion is based on Dr. Blanchard’s October 28, 2003 letter, addressed “To Whom It May Concern,” which read:

Sheila Howard has a severe case of fi-bromyalgia, and in my opinion is not in any condition to be gainfully employed. This is due to the fact that she has chronic pain secondary to that and requires powerful analgesics for control of this pain.

Howard argues that this letter was ignored by the Committee.

¶ 22. The Committee’s analysis considered Dr. Blanchard’s letter, along with the other medical evidence, and determined that the medical evidence was insufficient to conclude that Howard was disabled. The Committee’s analysis read:

In looking at the medical records that were made a part of the record, it is of note that very little, if any, abnormal testing is documented. We do not see any testing for fibromyalgia, except for subjective trigger point test. Rheuma-tological testing would be preferable here, but there is none in the record. The Committee is concerned that Dr. Blanchard, an excellent physician, did not seem to look beyond the diagnosis of fibromyalgia after it was made. Testing would have been beneficial. Dr. Jones noted subjective symptoms such as atypical chest pain, depression and irritable bowel syndrome, but objective testing found that Ms. Howard’s heart showed no damage, and her colon biopsy was also normal. Dr. Folse did assign impairment for back problems but it was noted that what Ms. Howard suffered from was degeneration of the spine and it was never documented that she had a herniated disc nor was surgery ever recommended. Carpal tunnel syndrome was diagnosed, but again, no testing was performed and never was surgery recommended. Dr. Morrissette, Dr. Fred-ericks and Dr. Leigh basically found no impairments. In addition, when Ms. Howard was referred to a psychiatrist, she said she could not see the doctor because of insurance problems. Yet, she saw many other doctors who apparently were approved for insurance problems.
Unfortunately in this case, there is no objective medical evidence upon which to award disability. Ms. Howard appears to have depressive symptoms and probably needs to be evaluated by a psychiatrist.... However, for this decision, there is no psychiatric record or testimony to base a psychiatric problem. Further, although we have a letter from the school district stating that Ms. Howard cannot perform her job, Ms. Howard testified that she was offered a contract for the 2003-2004, year. This fact certainly blurs the persuasiveness of the letter. This Committee also recognizes that Ms. Howard has been awarded Social Security Disability, but this Committee has no evidence of how that decision was made and whether the same medical records were provided to us. Further, as all know, the definition of disability in this case is not the same as that of Social Security. One award does not in and of itself justify the award of another.
All of the testimony and evidence has been reviewed, and in doing so, it is clear that there is insufficient objective evidence that Ms. Howard is disabled as defined in the PERS statute. That being the case, this Committee must recommend that Ms. Howard’s request for disability be denied.

¶ 23. I am of the opinion that PERS, through its medical doctors, was in a far better position to evaluate Howard’s medical history and the evidence presented. In addition, PERS weighed the credibility of the letter from Howard’s employer that said she could not perform her work duties with Howard’s own testimony that she was offered a contract renewal for the following year. PERS’ decision was based on its review of the evidence, and its physicians’ medical knowledge. We must give deference to the PERS decision. We cannot substitute our judgment, and we must not reweigh the facts. Pub. Employees’ Ret. Sys. v. Howard, 905 So.2d 1279, 1284(¶ 15) (Miss.2005). I would affirm the circuit court.

      . In Public Employees’ Retirement System v. Howard, 905 So.2d 1279, 1287-88(¶ 23) (Miss.2005), the Mississippi Supreme Court held:
      The Medical Board which denied Howard’s claim was made up of three physicians. The Appeals Committee which agreed with that determination included .two physicians. Sorting through voluminous and contradictory medical records, then determinating whether an individual is permanently disabled is better left to physicians, not judges.
      This is the idea behind the creation and expansion of administrative agencies. "The existence within government of discrete areas of quasi-legislative, quasi-executive, quasi-judicial regulatory activity in need of expertise is the raison d'etre of the administrative agency.” McGowan v. Miss. State Oil & Gas Bd., 604 So.2d 312, 323 (Miss.1992). “Because of their expertise and the faith we vest in it, we limit our scope of judicial review.” Id.


author: MYERS, P.J.,

text:
    Zachary CONNER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-KA-01994-COA.
    Court of Appeals of Mississippi.
    May 29, 2007.
    Rehearing Denied Sept. 18, 2007.
    Certiorari Denied Dec. 6, 2007.

      Jennifer Powell Fortner, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for Appellee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Zachary Conner appeals his Warren County Circuit Court convictions for murder, armed robbery, and shooting into an occupied dwelling. The jury returned a verdict against Conner finding that, on July 8, 2004, Conner shot and killed Christopher Cage, robbed him of his shorts and wallet, and fired a bullet intended for Cage which passed through the front door of a residence at 505 Adams Street in Vicksburg. For the crimes of murder, armed robbery, and shooting into an occupied dwelling, Conner was sentenced to respective terms of life, twenty, and five years, to be served in the custody of the Mississippi Department of Corrections. Conner raises the following issues on appeal:

I. WHETHER THE CIRCUIT COURT ERRED IN DENYING CONNER’S REQUEST FOR A CHANGE OF VENUE?
II. WHETHER THE CIRCUIT COURT ERRED IN DENYING CONNER’S MOTION FOR JNOV/ NEW TRIAL WHERE THE JURY VERDICT WAS CONTRARY TO THE LAW AND AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 2. Finding no error, we affirm the ruling of the circuit court.

STATEMENT OF THE FACTS

¶ 3. The testimony offered at trial adduced that on the night of July 8, 2004, Tasheba Williams invited friends over to her home located on Adams Street in Vicksburg for a barbeque. In attendance at Williams’ barbeque were her boyfriend, Jammal Bell, her neighbor and the victim in this case, Christopher Cage, the appellant herein, Zachary Conner, the cook at the barbeque, Charles Ross, and friends, George Deon Scott, Keon Hatchett, Tameka Williams, and Jimmie Felix. Over the course of several hours, the friends ate barbeque, drank beer, smoked cigarettes, and may have used marijuana and cocaine.

¶ 4. Later in the evening, Conner, Cage, Hatchett, and Scott took part in a game of dice, gambling money on what number would be rolled. Cage got “hot,” and ultimately won “all the money,” amounting to approximately $240. Conner lost all the money he had to Cage. Cage felt the ire of the group and offered to buy everyone cigarettes and beer if someone would take him to the store. Scott instructed his younger cousin, Hatchett, to drive Cage to the store in Scott’s orange Chevrolet Suburban. Conner and Bell accompanied Hatchett and Cage on the excursion. Hatchett was driving, Bell was sitting in the front passenger seat, Conner was seated behind Bell, and Cage behind Hatchett.

¶ 5. When the four men arrived at the Smoke Brake store, located on the corner of Cherry and Clay Streets, Cage and Bell entered the store while Hatchett and Conner remained in the vehicle. Videotape evidence, later recovered by the Vicksburg police, indicated that Cage and Bell purchased cigarettes and beer, and exited the store at 11:39 p.m. Bell testified that while he and Cage were inside the store, Cage told him that he hoped that Hatchett and Conner were not up to something. Hatchett testified at trial that while Cage and Bell were inside the store, Conner repeatedly said, “I’ve got to get my money back.” Once Cage and Bell returned to the vehicle, the four men proceeded in the orange Suburban in the general direction of Williams’ house. However, when Hatchett came to the stop sign where he was to make a right turn onto Adams Street, Conner instructed him to “stay straight.” Cage became uneasy and attempted to jump out of the vehicle while it was in motion. Hatchett stopped the vehicle and Cage jumped out. Bell and Hatchett both testified that Conner exited the vehicle behind Cage, and began firing multiple shots at Cage as Cage rah up the hill toward the intersection of Cherry and Fayette Streets. Hatchett had also exited the vehicle, but Bell remained inside. After observing Conner shoot Cage, Hatchett returned to the driver’s seat in the vehicle, reversed, and backed up the hill to the stop sign he had previously gone through, returning to Williams’ house with Bell, but without Conner or Cage.

¶ 6. Upon returning to Williams’ house, Hatchett asked his cousin George Deon Scott to step outside. There, Hatchett told Scott, “Zack shot that dude.” As Hatchett was explaining to Scott what had transpired, Conner returned to Williams’ house on foot. Bell was inside explaining what happened to the others at the party. Conner, Scott, and Hatchett went back inside the house and according to the testimony of everyone at the party, Conner said something to the effect of “Ya’ll ain’t got nothing to worry about, this one’s on me.” Bell testified that Conner said that he “could not let [Cage] live,” and that he “had to get his money back.” Scott asked Hatchett and Conner if Cage was dead, and told them they needed to check. Conner then walked back up Adams Street to the corner of Cherry and Fayette Stréets; Hatchett followed at a distance. Hatchett found Cage lying face down, half in the street and half in the grass. Conner approached the body and removed Cage’s shorts, socks, and other personal effects. As Conner proceeded back down Adams Street toward Williams’ house, Hatchett observed him place Cage’s shorts in a city garbage can located in front of 622 Adams Street. Investigators later recovered the shorts from the garbage can.

¶ 7. When Conner returned to Williams’ house the second time, he had Cage’s identification card in his hand and he was tearing it up using his teeth. Conner then took out a box of .45 caliber Winchester bullets, placed the unused cartridges in a blue rubber glove, and tossed the glove into the neighbors’ yard. Conner then tore the Winchester box into small pieces and discarded it into the trash. Bell and Williams then told Conner that he could not stay there, so Conner called a ride. Around midnight, Conner left Williams’ house in a white car driven by a man known only as “Little Jesse.” Conner returned to Williams’ house at approximately 1:30 a.m. on July 9, 2004, wearing different clothes. He stayed for about thirty minutes and then left again.

¶ 8. At trial, Alma Butler, who resides at 505 Adams Street, testified that she was in her living room, lying on the couch, watching television on the night of July 8, 2004. At approximately 11:44 p.m., a .45 caliber Winchester bullet shattered the storm door on the front of her house, went through her wooden front door, through a pillow underneath her legs, and lodged in a barstool cushion. Butler immediately dropped to the floor and crawled to a back bedroom. She then called 911 and reported hearing eight or nine shots fired. The Vicksburg police arrived within five minutes and began investigating the scene. At approximately 12:04 a.m. on July 9, 2004, the Vicksburg police received a call about a man, later identified as Christopher Cage, lying face down on the corner of Cherry and Fayette Streets. Butler’s house is’ directly across a vacant lot approximately fifty to sixty yards from where Cage’s body was found.

¶ 9. The crime scene was investigated by Lieutenant Billy Brown and Crime Scene Investigator Linda Hearn. The officers took photographs of Cage’s body, depicting Cage lying face down with his socks and shorts removed, which were introduced into evidence at trial. Cage had been shot multiple times and had expired before emergency personnel could arrive. The $240 Cage had won in the dice game was found in his hand. A cold unopened can of Miller High Life Lite beer was found approximately thirty yards from Cage’s body. Also found nearby were his flip flop shoes which were .scattered along the path he had run in an attempt to flee the hail of bullets unleashed upon him, as well as nine spent .45 caliber Winchester bullet casings. Dr. Steven Hayne, the forensic pathologist who performed the autopsy testified that Cage had been shot four times, once in the ankle, once in the elbow, once in the back, and once in the chest. Dr. Hayne attributed the cause of death to the bullet wound to the chest, which had gone through Cage’s liver, diaphragm, and eleventh thoracic vertebra.

¶ 10. Sargeant Doug King of the Vicksburg police testified that on August 24, 2004 a man who identified himself only as “Tim Ross” (later determined to be Charles Ross, the cook at Williams’ party who witnessed Conner give the murder weapon to Quinton Myles) approached King in the police station parking lot and told him that he knew where a. murder weapon was hidden. Ross told King that a gun was hidden underneath Quinton Myles’ grandmother’s old abandoned house located on Oakland Street in Vicksburg. King and another officer searched the Oakland Street address, locating a Glock .45 caliber pistol underneath the southeast corner of the house. Forensic analysis of test bullets fired from the Glock revealed class characteristics consistent with the bullets and shell casings found at Cage’s murder scene. Mississippi Crime Lab Forensic Analyst, Starks Hath-cock, testified that although he could not be certain that the bullets and shell casings found at Cage’s murder scene were from the Glock found at the Oakland Street address, the test results indicated that the bullets and shell casings recovered from the scene and test bullets from the Glock were both .45 caliber Winchester, both had eight lands and grooves, and both had right twist polygonal rifling consistent with those left by a Glock .45 caliber.

¶ 11. Additional testimony was taken from Keon Hatchett, Charles Ross, Tashe-ba Williams, Tameka Williams, George Dean Scott, and Jimmie Felix. The testimony of all of the State’s witnesses was substantially consistent. The jury then returned a verdict of guilty on all counts. Conner then filed a motion for JNOV/new trial, arguing that the circuit court erred in denying his request for change of venue both prior to and after voir dire, and that the verdict was contrary to the law and against the overwhelming weight of the evidence. ■ The motions was denied, and Conner perfected this appeal.

DISCUSSION

I. WHETHER THE CIRCUIT COURT ERRED IN DENYING CONNER’S REQUEST FOR A CHANGE OF VENUE?

¶ 12. In a pre-trial motion on June 6, 2005, Conner’s counsel made an ore terms motion for change of venue on the basis of an article published in The Vicksburg Post on June 5, 2005, the day before trial, which outlined the possible sentences Conner could receive if convicted. The article also included a statement from the district attorney that Conner was the last of nine suspects arrested in connection with the murder of Christopher Cage, and that all of the other suspects had been set free. The circuit court determined that the motion was premature and that a decision would be made following jury selection. After the jury had been seated, the circuit court denied the motion for a change of venue. On appeal, Conner asserts that the circuit court erred in denying his motion for a change of venue based on the pre-trial publicity of the case in the newspaper article and a collective community feeling of Conner’s guilt. Conner contends that the jury is not to have any indication before trial of the possible sentences facing the accused upon conviction and that the newspaper article tainted the jury pool in favor of his guilt. In essence, Conner argues that the venire considered him guilty until proven innocent in contradiction to our supreme court’s mandate that all defendants are entitled to an impartial jury. See Lanier v. State, 533 So.2d 473, 477 (Miss.1988). The State argues that Conner’s attorneys failed to follow the proper procedure for requesting a change of venue, and therefore, the issue is procedurally barred on appeal. As to the merits, the State argues that the motion was properly denied because only two members of the venire stated that they had read the article, and those jurors were dismissed for cause. Further, the State argues that none of the veniremen complained of in Conner’s brief were impaneled on the jury.

¶ IS. We are to review a trial judge’s decision to deny a motion for change of venue for abuse of discretion. Grayson v. State, 806 So.2d 241, 250(¶ 20) (Miss.2001). Granting a change of venue is a matter that falls largely within the sound discretion of the trial court that a judgment of conviction will not be reversed on appeal on the ground that a change of venue was refused, unless it clearly appears that the trial court abused its discretion. Gray v. State, 728 So.2d 36, 65 (¶ 143) (Miss.1998). Mississippi Code Annotated section 99-15-35 (Rev.2000) provides the requirements for a change of venue as follows:

On satisfactory showing, in writing, sworn to by the prisoner, made to the court, or to the judge thereof in vacation, supported by the affidavits of two or more credible persons, that, by reason of prejudgment of the case, or grudge or ill will to the defendant in the public mind, he cannot have a fair and impartial trial in the county where the offense is charged to have been committed, the circuit court, or the judge thereof in vacation, may change the venue in any criminal case to a convenient county, upon such terms, as to the costs in the case, as may be proper.

(emphasis added).

¶ 14. Here, no affidavits were offered in support of the oral motion. However, instead of immediately denying the motion, the circuit court ruled that the motion was premature and that a decision would be made after voir dire. Our review of the voir dire transcript indicates that only two members of the venire stated that they had read the article and both were dismissed by the court for cause. The record also supports' the State’s contention that none of the jurors complained of in Conner’s brief was selected to sit on the jury. Finally, we cannot find that one statement by any of the jurors Conner now objects to in his appeal was made in the presence of other veniremen so as to prejudice the impartiality of the jury. In applying the precedent established by this Court in Adams v. State, 944 So.2d 86, 89 (¶¶ 17-20) (Miss.Ct.App.2006), we must affirm the circuit court’s denial of Conner’s motion for a change of venue. Conner had ample opportunity to question members of the veni-re and to use both his peremptory challenges and challenges for cause. We find no basis for a change of venue, nor any abuse of discretion on the part of the circuit court in denying Conner’s motion. Thus, the circuit court’s denial of Conner’s motion for change of venue is affirmed.

II. WHETHER THE CIRCUIT COURT ERRED IN DENYING CONNER’S MOTION FOR JNÓV/ NEW TRIAL WHERE THE JURY VERDICT WAS CONTRARY TO THE LAW AND AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 15. Conner asserts that the circuit court erred in denying his motion for JNOV/new trial because he claims the verdict was contrary to the law and against the overwhelming weight of the evidence. In support of his position, Conner argues that the State failed to meet its burden of proving that Conner actually pulled the trigger of the gun that killed Cage. Conner’s brief laboriously summarizes the testimony of each of the witnesses who testified at trial and follows each summarization with the statement: “No reasonable juror could find Conner guilty for shooting or robbing Chris Cage or for shooting into Ms. Butler’s home on the testimony of [the witness].” The State argues that Conner’s argument is flawed in two ways. First, the State asserts that jurors do not look at testimony of a witness in a bubble, rather all testimony and evidence are considered collectively. Second, the State asserts that Conner bases his argument largely on the false assumption that the testimony of the State’s witnesses, specifically the testimony of Jammal Bell, Keon Hatchett, George Deon Scott, Tasheba Williams, Tameka Williams, and Jimmie Felix, were not to be believed by the jury because the witnesses were also arrested and previously charged with either the murder of or as an accessory after the fact to the murder of Christopher Cage. However, the State contends that such a determination is within the province of the jury, arguing that it is not for this Court to substitute our judgment for that of the jury.

¶ 16. Issues based upon a denial of a motion for a JNOV challenge the sufficiency of the evidence. Boose v. State, 851 So.2d 391, 394(1113) (Miss.Ct.App.2003). Our standard of review of a claim that the evidence presented at trial was insufficient to support the verdict requires us to accept as true all evidence tending to support the verdict, including the inferences derived therefrom, and ask the question, “after viewing the evidence in the light most favorable to the prosecution, [if] any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Dilworth v. State, 909 So.2d 731, 736(¶ 17) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). This Court may only reverse the denial of the JNOV “where with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fairminded jurors could only find the accused not guilty.” Boose, 851 So.2d at 394(¶ 14) (quoting Harveston v. State, 493 So.2d 365, 370 (Miss.1986)).

¶ 17. As distinguished from a motion for JNOV, issues based upon a denial of a motion for a new trial challenge the weight, not the sufficiency of the evidence. Id. at 394(¶ 13). The standard for reviewing whether or not a jury verdict is against the overwhelming weight of the evidence is that the reviewing court must accept as true all evidence which supports the verdict and will reverse only if convinced that the trial court abused its discretion in not granting a new trial. Bradley v. State, 921 So.2d 385, 389(¶12) (Miss.Ct.App.2005) (citing Price v. State, 898 So.2d 641, 652(1126) (Miss.2005)). A new trial will not be ordered unless we are convinced that the verdict is so contrary to the overwhelming weight of the evidence that to allow the verdict to stand would be to sanction an unconscionable injustice. Id. This high standard is necessary because any factual disputes are properly resolved by the jury, not by an appellate court. Id. Thus, our scope of review on this issue is limited in that all evidence must be construed in the light most favorable to the verdict. Herring v. State, 691 So.2d 948, 957 (Miss.1997) (citing Mitchell v. State, 572 So.2d 865, 867 (Miss.1990)).

¶ 18. The testimony introduced at trial, when viewed collectively, was far more than adequate to support a conviction on each of the charges Conner faced. Both Bell and Hatchett testified to seeing Conner shoot Cage, and Bell, Hatchett, Scott, Williams, and Ross each testified to hearing Conner admit shooting Cage. Hatchett testified to observing Conner remove Cage’s clothing and wallet, and Alma Butler testified to a shot being fired through her front door at roughly the same time Cage was shot. Photographic evidence proved that Butler’s house was clearly visible from the corner where Cage’s body was found. Further, the bullets and cartridges found at the murder scene and recovered from Butler’s house had at least four class characteristics in common with the bullets test fired from the .45 caliber Glock retrieved from Oakland Street. Testimony of Sergeant King and Charles Ross connected Conner to the weapon. We find Conner’s argument before this Court to discredit the witnesses against him unpersuasive. It is the jury’s function to decide which evidence and testimony is credible and which is not, and we will not substitute our judgment for theirs. Bradley, 921 So.2d at 389(¶ 12). Accordingly, we find sufficient evidence in the record to affirm Conner’s convictions for murder, armed robbery, and shooting into an occupied dwelling.

¶ 19. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT OF CONVICTIONS OF MURDER, ARMED ROBBERY AND SHOOTING INTO AN OCCUPIED DWELLING AND SENTENCES OF LIFE, TWENTY AND FIVE YEARS RESPECTIVELY TO BE SERVED IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL SENTENCES SHALL RUN CONSECUTIVELY WITH EACH OTHER. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

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


author: ISHEE, J„

text:
    Robin Michael COLEMAN, Appellant, v. STATE of Mississippi, Appellee. Robin Michael Coleman, Appellant, v. State of Mississippi, Appellee. Robin Michael Coleman, Appellant, v. State of Mississippi, Appellee.
    Nos. 2006-CP-01089-COA, 2006-CP-01090-COA, 2006-CP-01091-COA.
    Court of Appeals of Mississippi.
    June 12, 2007.
    Rehearing Denied Sept. 25, 2007.
    Certiorari Denied Dec. 6, 2007.

      Robin Michael Coleman, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
   ISHEE, J„

for the Court.

¶ 1. On August 5, 2003, Robin Coleman pled guilty in the Lauderdale County Circuit Court in two cases of forgery. The court sentenced him to two fifteen year sentences with both fifteen year sentences suspended and five years’ probation. After Coleman was again charged with forgery, his probation was modified and he was placed in the restitution program on April 29, 2004. At a probation hearing on August 31, 2004, Coleman’s probation was revoked for failing to comply with the requirements of the restitution program. He entered a third guilty plea on September 29, 2004, and received a five-year sentence with four years and 364 days suspended. He then filed motions for post-conviction relief, which the court granted in part and denied in part. Aggrieved, Coleman appeals. Finding no error, we affirm.

FACTS

¶ 2. Robin Coleman was originally indicted for forgery in two cases: the first for eight counts of forgery and the second for five counts of forgery. He appeared before the Lauderdale County Circuit Court on August 5, 2003, and pled guilty to Count I in each case. The court accepted a plea bargain and Counts II through V in the first case and Counts II through VIII in the second case were declared nolle prosequi. For pleading guilty to the two counts of forgery, the court sentenced Coleman to two concurrent fifteen-year sentences with the two fifteen-year sentences suspended and five years’ probation.

¶3. On April 29, 2004, Coleman was returned to court because of five new indictments for forgery. Coleman admitted violating his probation by committing these subsequent forgeries. Instead of revoking his probation, however, the court modified it and ordered Coleman to enter and successfully complete the Restitution Center program. This included paying the total amount of restitution owed for his forgeries. Based on this modification to Coleman’s probation, the new indictments were conditionally declared nolle prosequi. At each of the above proceedings, Coleman was represented by appointed counsel.

¶ 4. Coleman was again before the court on August 31, 2004, for a hearing to revoke his probation. The State alleged that he had violated the terms of his probation by losing his job with the restitution program and by cashing one of his checks instead of making his scheduled restitution payment. The court did not appoint counsel for Coleman at his revocation hearing because it found' that Coleman was not being tried for any new felonies and the proceeding involved no complex issues. After hearing from the director of the restitution center and from Coleman, the court revoked Coleman’s probation and ordered him to serve the two concurrent fifteen-year sentences that had previously been suspended.

¶ 5. Following the initial guilty plea and the events that led to the revocation of Coleman’s probation, Coleman was indicted in August 2004 for five more counts of forgery. On September 29, 2004, he again pled guilty before the Lauderdale County Circuit Court as part of another plea agreement. In exchange for pleading guilty to Count I, Coleman received a five-year sentence with four years and 364 days suspended, and the State dismissed Counts II through V.

¶ 6. Coleman filed two motions for post-conviction relief regarding his convictions and sentences: the first regarding his August 2003 guilty pleas and two fifteen-year sentences and the second regarding his September 2004 guilty plea and five-year sentence with one day to serve. In addition to the claims asserted in this appeal, Coleman argued in his motion concerning his 2003 plea that his sentence was illegal under Mississippi Code Annotated section 97-21-33 (Rev.2006), which had been amended prior to his sentencing to provide for a maximum ten years in prison for uttering forgery, whereas he was sentenced to fifteen years. The trial court agreed and found that the statute had indeed been amended after Coleman’s indictment and prior to his sentencing. It amended Coleman’s original fifteen year sentences to two ten-year sentences to run concurrently. The court found no merit in the remaining issues presented by Coleman in his motions. Furthermore, the court found that the motion for post-conviction relief concerning his September 2004 guilty plea was frivolous and ordered that Coleman forfeit sixty days accrued jail time.

¶ 7. Coleman’s, appeals from the denial of his motions are now consolidated before this Court. He asserts the following issues:

I. Whether his guilty plea was knowing, voluntary, and intelligent.
II. Whether he received ineffective assistance of counsel.
III. Whether the revocation of his probation was unlawful.
IV. Whether the court erred by denying his motion for post-conviction relief without an evidentiary hearing.
V. Whether the court erred by dismissing his motion for post-conviction relief as frivolous and ordering forfeiture of sixty days accrued time.

STANDARD OF REVIEW

¶ 8. We will not reverse the denial of a motion for post-conviction relief by a trial court absent a finding that the trial court’s ruling was clearly erroneous. Kirksey v. State, 728 So.2d 565, 567(¶8) (Miss.1999).

ISSUES AND ANALYSIS

I. Whether Coleman’s plea was knowing, voluntary, and intelligent.

¶ 9. Coleman asserts that his plea was not voluntary, knowing, and intelligent because he did not know that the actual maximum penalty for forgery was ten years and not fifteen years, which is what the lawyers and judges told him and for which he was sentenced. He claims that the severity of the fifteen-year sentence convinced him to take the plea deal for suspended time, and that if he had known it was a ten-year maximum sentence he would have gone to trial.

¶ 10. “It is the duty of the trial court to inquire and determine ... [t]hat the accused understands the nature and consequences of the plea, and the maximum and minimum penalties provided by law.” Uniform Rules of Circuit and County Court Rule 8.04(A)(4)(b). Nevertheless, where a defendant alleges his plea was involuntary, automatic invalidation of a guilty plea is not the rule in Mississippi. Gaskin v. State, 618 So.2d 103, 108 (Miss.1993). The defendant has the burden to prove by a preponderance of the evidence that a guilty plea was made involuntarily. Fields v. State, 840 So.2d 796, 798(¶4) (Miss.Ct.App.2003); Baker v. State, 358 So.2d 401, 401 (Miss.1978). “The failure to inform a defendant of a minimum sentence will not result in vacating the sentence where it appears beyond a reasonable doubt that the plea would have been entered even if the minimum sentence were known.” Gibson v. State, 641 So.2d 1163, 1166 (Miss.1994) (citing Smith v. State, 636 So.2d 1220, 1226 (Miss.1994)).

¶ 11. Mississippi Code Annotated section 99-19-33 (Rev.2000) provides as follows:

If any statute shall provide a punishment of the same character, but of milder type, for an offense which was a crime under pre-existing law, then such milder punishment may be imposed by the court but no conviction, otherwise valid, shall be set aside and new trial granted merely because of an error of the court in fixing punishment. Such error shall only entitle the party injured to vacate or reverse the judgment as to the punishment, and the legal punishment shall then be imposed by another sentence based on the original conviction or plea of guilty.

Under this statute, where the statutory penalty for a crime is lessened between the time of the commission of the crime and sentencing, it is proper to apply the lesser sentence. Daniels v. State, 742 So.2d 1140, 1145(1117) (Miss.1999). Such an error in sentencing allows for reversal of the punishment portion of the judgment. West v. State, 725 So.2d 872, 881(¶30) (Miss.1998). Furthermore, an excessive sentence should be corrected by amendment of the invalid sentence, not by discharge of the prisoner. Gulley v. State, 870 So.2d 652, 655(¶ 6) (Miss.2004) (citing Bozza v. United States, 330 U.S. 160, 166, 67 S.Ct. 645, 91 L.Ed. 818 (1947)).

¶ 12. The trial court found that Coleman’s sentence, as originally imposed, was illegal and amended it to ten years instead of fifteen years. Coleman’s argument that he was induced to plead guilty because of a possible fifteen-year sentence is misleading. He faced not only the two charges to which he pled guilty, but also another eleven charges that the trial court dismissed as a result of the plea bargain. While it is true there was a five-year difference in the original sentence and the correct sentence, it must also be noted that, even under the current sentencing provision, Coleman would have faced a possible 130 years in jail for the thirteen total charges had he decided to go to trial. He did not plead guilty merely to get a ten or fifteen-year suspended sentence but also to avoid being tried on all thirteen of the forgery charges for which he was indicted.

¶ 13. While Coleman argues that his attorney affirmatively misstated the maximum sentence in order to induce him to plead guilty, he offers no evidence to support his argument. Furthermore, in-its order denying post-conviction relief, the court repeatedly noted that it was an inadvertent failure of the court, the district attorney, and defense counsel to realize the change in the maximum sentence. The amended section 97-21-38 came into effect on July 1, 2003, which was after Coleman was indicted but before he pled guilty on August 5, 2003. Since Coleman was indicted under the old statute, and the amended version was in effect for only a month, it was not error for the trial court to find that it was inadvertence, and not misrepresentation, to proceed under the old sentence.

¶ 14. There was nothing further to suggest that Coleman did not enter his plea knowingly and voluntarily. At his plea hearing he responded in the affirmative when questioned whether he understood the charges, the elements of the charge and whether his plea was knowing and voluntary. He also told the judge that he did not believe anyone was trying to trick him or manipulate him to make a guilty plea. Coleman entered a valid plea; however, he was given an invalid sentence. The court properly applied section 99-13-19 and addressed the error in sentencing by amending Coleman’s sentence to ten years. He was in no way prejudiced, and he ultimately received a lesser sentence than what he expected. This issue is without merit.

II. Whether Coleman received effective assistance of counsel.

¶ 15. To prevail on a claim of ineffective assistance of counsel an appellant must show (1) that counsel’s performance was deficient and (2) that the deficiency in counsel’s performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Mississippi Supreme Court adopted this test in Stringer v. State, 454 So.2d 468, 476-79 (Miss.1984). Under the first prong, counsel’s conduct is presumed to fall within a wide range of reasonable professional assistance, and the appellant has the burden to overcome it. Strickland, 466 U.S. at 686, 104 S.Ct. 2052 (1984). There is also a presumption that decisions made by counsel are strategic. Leatherwood v. State, 473 So.2d 964, 968-69 (Miss.1985). Under the second prong, the defendant must show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Mohr v. State, 584 So.2d 426, 430 (Miss.1991).

¶ 16. Coleman cites Teague v. Scott, 60 F.3d 1167, 1171 (5th Cir.1995), for the proposition that “[flailing to properly advise the defendant of the maximum sentence he could receive falls below the objective standard required by Strickland.” Defense counsel in Teague allegedly advised the defendant that the maximum sentence at trial would be twenty years, when in fact the defendant could and did receive ninety-nine years. Id.

¶ 17. Teague differs significantly from the present case. Coleman was advised that the maximum sentence for his thirteen counts of forgery was fifteen years each, for a total of 195 years. Actually, the amended statute provided for a sentence of ten years, which would total 130 years for all thirteen counts. Coleman, nevertheless, received a suspended sentence and faced no jail time. We cannot say, but for counsel’s failure to advise Coleman of the amended sentence, that Coleman would have chosen to proceed to trial for thirteen counts of forgery when he in fact received a very favorable plea agreement under either sentencing scheme. Even assuming deficient performance on the part of defense counsel, it is unlikely the outcome of the case would have been different. Therefore, Coleman has failed to meet the requirements of Strickland to prove ineffective assistance of counsel. This issue is without merit.

III. Whether the revocation of Coleman’s probation was unlawful.

¶ 18. A revocation hearing requires only evidence that the defendant more than likely violated the terms of his probation. State v. Oliver, 856 So.2d 328, 332(119) (Miss.2003) (citing Wallace v. State, 607 So.2d 1184, 1190 (Miss.1992)). The rules of evidence at a revocation hearing are relaxed to allow the introduction of evidence that may not be admissible at trial. Id.; Williams v. State, 409 So.2d 1331, 1332 (Miss.1982) (citing Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)).

¶ 19. A defendant does not have an absolute right to appointed counsel at a probation revocation hearing. Riely v. State, 562 So.2d 1206, 1209 (Miss.1990); Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 26, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) (citing Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)). Whether a defendant should be appointed counsel must be determined on a case-by-case basis. Gagnon, 411 U.S. at 790, 93 S.Ct. 1756. Cases that are not complex or difficult do not require counsel to be appointed. Id. at 790-91, 93 S.Ct. 1756.

¶20. The State put on evidence that Coleman violated the terms of his probation by improperly cashing a check that he was required to send to the Restitution Center and then getting fired from his job. As a matter of fact, this was Coleman’s second chance to turn things around. His probation could have properly been revoked when he was earlier charged with forgery while on probation. Instead the court modified his probation and placed him in the Restitution Center, which he was required to complete so as to avoid having his probation revoked.

¶ 21. Under Riely and Gagnon, the failure of the court to appoint counsel for Coleman is not in error. The court found that the issues presented were not complex nor difficult, and it noted that the hearing did not involve any new felonies. Coleman admitted violating the terms of his probation; therefore, it was properly revoked. This issue is without merit.

IV. Whether the court erred by denying Coleman’s motion for post-conviction relief without an evi-dentiary hearing.

¶ 22. The trial court is not required to grant an evidentiary hearing for every motion for post-conviction relief. McMillian v. State, 774 So.2d 454, 456(¶ 6) (Miss.Ct.App.2000). Mississippi Code Annotated section 99-39-19(1) (Rev.2000) provides that it is within the judge’s discretion to determine whether an evidentia-ry hearing is required prior to ruling on a motion for post-conviction relief. If an evidentiary hearing is not necessary, “the judge shall make such disposition of the motion as justice shall require.” Miss. Code Ann. § 99-39-19(1). To obtain an evidentiary hearing in the lower court on the merits of an ineffective assistance of counsel claim, a defendant must state “a claim prima facie” in his application to the court. Read v. State, 430 So.2d 832, 841 (Miss.1983). To get a hearing “he must allege ... with specificity and detail” that his counsel’s performance was deficient and that the deficient performance prejudiced the defense. Perkins v. State, 487 So.2d 791, 793 (Miss.1986); Knox v. State, 502 So.2d 672, 676 (Miss.1987).

¶ 23. It is not error for the trial court to deny an evidentiary hearing for a post-conviction relief motion when the defendant does not submit any affidavits besides his own or any evidence to support his claims. Dearman v. State, 910 So.2d 708, 710— 11(116) (Miss.Ct.App.2005); Hardiman v. State, 904 So.2d 1225, 1226(¶ 7) (Miss.Ct.App.2005); Jennings v. State, 896 So.2d 374, 378(¶ 20) (Miss.Ct.App.2004).

¶ 24. The trial court found that Coleman’s allegations in his motions for post-conviction relief were entirely without merit. It issued a lengthy and detailed order addressing each of Coleman’s points of error, not only denying each of them but also finding them to be frivolous. Under McMillian, the judge was not required to grant an evidentiary hearing. It was within the judge’s discretion to determine whether the issues presented warranted an evidentiary hearing. Finding that they did not, he properly considered them and issued an order denying them. Coleman also failed to provide any supporting evidence or affidavits indicating that there were any issues that would warrant an evidentiary hearing. This issue is without merit.

V. Whether the court erred by dismissing Coleman’s motion for post-conviction relief as frivolous and ordering forfeiture of sixty days accrued time.

¶ 25. Under Mississippi Code Annotated section 47-5-138 (Rev.2004), the court may order a defendant to forfeit time served for filing a frivolous lawsuit. This section applies to a pro se litigant who files a motion for post-conviction relief equally as it does to a party represented by counsel. Dock v. State, 802 So.2d 1051, 1056(¶ 11) (Miss.2001) (citing Retherford v. State, 749 So.2d 269, 275(¶ 14) (Miss.Ct.App.1999)). We review a trial court’s determination that a motion is frivolous under an abuse of discretion standard. Id. (citing Harper v. Showers, 174 F.3d 716, 718 (5th Cir.1999)).

¶ 26. We are not convinced by Coleman’s argument that the trial court abused its discretion by finding his motion to be frivolous. The court ordered the motion for post-conviction relief dismissed as frivolous because there was no newly discovered evidence as Coleman claimed. Furthermore, Coleman stated at his plea hearing that he was satisfied with the performance of his counsel. Facing forgery charges as a habitual offender, Coleman received a five-year sentence with four years and 364 days suspended, which meant he would spend only a day in jail. We do not find that it was an abuse of discretion for the trial court to find Coleman’s motion was frivolous and order a forfeiture of sixty days accrued time. This issue is without merit.

¶ 27. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IN CAUSE NO. 2006-CP-1089, DISMISSING POST-CONVICTION RELIEF IN CAUSE N0.2006-CP-1090, AND DENYING POST-CONVICTION RELIEF IN CAUSE N0.2006-CP-1091 IS AFFIRMED. ALL COSTS OF THESE APPEALS ARE ASSESSED TO LAUDERDALE COUNTY.

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


author: IRVING, J.,

text:
    Murry WEEKS, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00610-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2007.
    Murry Weeks, Appellant, pro se.
    W.S. Stuckey, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, P.J., IRVING and ROBERTS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Murry Weeks was convicted of bringing contraband into a jail facility and was sentenced to seven years in the custody of the Mississippi Department of Corrections by the Leflore County Circuit Court. Weeks’s trial counsel filed a brief pursuant to Lindsey v. State, 939 So.2d 743 (Miss.2005), in which he contends that there was no error below. Weeks then filed a pro se supplemental brief.

¶ 2. We find no error; therefore, we affirm Weeks’s conviction and sentence.

FACTS

¶ 3. Weeks was an inmate at Delta Correctional Facility (DCF) in Greenwood, Mississippi. He had earned trusty status and was allowed to leave the facility to work garbage detail. On April 29, 2005, Weeks and four other trusties returned to DCF after completing their work assignment for the day. Upon their return to the jail, each trusty was individually searched.

¶ 4. Tiawan Thomas was employed at DCF as a unit manager on the day of the incident. She testified that upon Weeks’s return to the facility Weeks took off his jacket and laid it on a chair in the booking area. According to Thomas, this aroused her suspicions because Weeks was the only inmate who removed his jacket. Senior Corrections Officer Kevin Perkins conducted a search of Weeks and discovered a bag containing catfish and hushpuppies, a bag of Cheetos, and a twenty-dollar bill concealed in Weeks’s buttocks.

¶ 5. After the search, Weeks proceeded to his cell without claiming his jacket. Thomas testified that she asked Weeks, “[Ajren’t you leaving your jacket?” Weeks responded affirmatively and picked up the jacket. Thomas testified that she then said to Weeks, “Let me search the jacket because we haven’t searched it.” During the search, Thomas found a brown paper bag wrapped in duct tape in the sleeve of the jacket. The paper bag contained two small bags of what was later identified as marijuana. Sergeant Andrew Cates, with the Leflore County Sheriffs Department, testified that he gathered the evidence and that Ken Spencer, chief investigator for the Leflore County Sheriffs Department, sent the marijuana to the Mississippi Crime Lab for testing.

¶ 6. On cross-examination, Thomas testified that there is often no way to distinguish one inmate’s jacket from another because most inmates do not put their names in the jackets and the facility does not have a procedure which links a jacket to a particular inmate.

¶ 7. Weeks took the stand in his own defense and testified that on April 29 he and the other trusties finished working early, so they went to a store to purchase snacks. Weeks stated that it was not unusual for them to bring food back to the facility on Fridays and admitted bringing the catfish, hushpuppies, and Cheetos into the jail on April 29.

¶ 8. Weeks stated that while on work detail, trusties wear clothing that identifies them as inmates of Leflore County. According to Weeks, there was a problem with the water at the jail, which prevented inmates from washing their clothing at the jail. Weeks testified that Thomas instructed him to bring clothing that had accumulated at the solid waste department to the jail so that it could be washed when the problem with the water was resolved. Weeks stated that on the day of the incident, he was merely complying with Thomas’s request. He testified that he brought “a whole pile” of clothing, including jackets, shirts, and pants to the jail.

¶ 9. Weeks testified that he returned to the jail with his jacket and a jacket that he had retrieved from a locker that was located next to his. He stated that Matthew Ingram occupied the locker next to his before Ingram was removed from the trusty program after testing positive for drugs. Further, Weeks stated that he wore his jacket into the room where the search was conducted and that his jacket was searched at that time. He also insisted that the twenty-dollar bill was not recovered from his buttocks, but that he gave it to Perkins immediately before the search began. Weeks testified that he had been escorted to his cell when Thomas came in and told him that he had left his jacket in the booking area. Weeks stated that he agreed to get the jacket but that he told Thomas that he could not have left his jacket in the booking area because it was already in his cell.

¶ 10. Weeks’s testimony on cross-examination was inconsistent with his direct testimony. On cross-examination, Weeks testified that he retrieved a jacket out of a locker that he had once shared with Milton Stokes and that it was that jacket that he had left in the chair in the booking area. Weeks further testified that Stokes had also been removed from the trusty program after failing a drug test.

¶ 11. Sydney Peacock, a Leflore County employee in charge of the solid waste department, testified on Weeks’s behalf. Peacock corroborated Weeks’s testimony that on occasion trusties would take jackets and other clothing that accumulated in the solid waste department back to the jail. However, Peacock stated that an inmate named Quincy Williams, and not Weeks, was responsible for taking the extra clothing back to the jail. Peacock also confirmed that Stokes was terminated after he tested positive for drugs.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 12. Pursuant to Lindsey, 939 So.2d at 746(¶ 12) (quoting Turner v. State, 818 So.2d 1186, 1189 (Miss.2001)), it is the responsibility of appellate counsel to (1) determine that the only claims left for appeal are frivolous, (2) file a brief indicating that he has conducted a thorough review of the record and has found nothing to support an appeal, and (3) “advise [his] client of his right to file a pro se supplemental brief.” The appellate court is then required to conduct an “independent review of the record” to determine if there are any arguable issues and, if any arguable issue is found, require counsel to file a supplemental brief on the issue. Id.

¶ 13. In this case, Weeks’s attorney filed a brief indicating that he had thoroughly scoured the record and found no arguable issues to support Weeks’s appeal. In his brief, Weeks’s attorney asserts that he has examined: (1) the reason and circumstances surrounding Weeks’s arrest, (2) any possible violations regarding Weeks’s right to counsel, (3) the trial transcript, (4) the rulings of the trial court, (5) any possible prosecutorial misconduct, (6) the jury instructions, (7) the exhibits, and (8) any possible misapplication of the law in sentencing. The attorney asserts that he considered all of these possible avenues for appeal and found no non-frivolous issue for appeal.

¶ 14. As stated, Weeks filed a supplemental brief. In his brief, which is a two-page memorandum to the Clerk of this Court, Weeks argues that he was denied effective assistance of counsel and also appears to challenge the sufficiency of the evidence used to convict him.

¶ 15. After a thorough review of the record, we likewise have found no arguable, non-frivolous issue. However, for the sake of thoroughness, we briefly address the two issues raised by Weeks.

Ineffective Assistance of Counsel

¶ 16. Weeks seems to suggest that his attorney was ineffective for failing to ask certain questions, although he does not frame this issue as a claim of ineffective assistance of counsel. Nevertheless, we will treat it as such. In order to succeed on a claim of ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that the deficiency prejudiced his case. Burns v. State, 813 So.2d 668, 673(¶ 14) (Miss.2001) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2062, 80 L.Ed.2d 674 (1984)). Weeks fails to assert any authority to support his claim that his attorney’s actions or inactions rise to the level of ineffective assistance. Additionally, Weeks does not enunciate the questions that he claims his trial counsel was ineffective for failing to ask. Therefore, we find no merit to this issue.

Sufficiency of the Evidence

¶ 17. In determining whether evidence is sufficient to sustain a conviction:

the critical inquiry is whether the evidence shows “beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.”

Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). On the other hand, if the facts and inferences “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,” the proper remedy is for the appellate court to reverse and render. Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶ 18. In this issue, Weeks argues that his conviction must be reversed and rendered because the record lacks proof that the jacket in which the marijuana was found belonged to him and not Stokes. Weeks contends that the jacket belonged to Stokes, who had been terminated from his position as a trusty after testing positive for drug use. Further, Weeks contends that he brought Stokes’s jacket to the jail from the solid waste department per Thomas’s request. As such, Weeks argues that he should not be charged with bringing marijuana into the facility because he simply complied with Thomas’s request. Weeks testified that it was commonplace for trusties to bring clothing from the solid waste department to the jail and that Thomas asked him to do so on the day the marijuana was discovered. We note that Weeks’s testimony was the complete opposite of the testimony of Thomas, Perkins, and Cates, all of whom denied any knowledge of such a policy. ' Moreover, Weeks’s testimony on cross-examination contradicted his direct testimony, as it was not until cross-examination that Weeks mentioned taking a jacket from a locker that he once shared with Stokes. On direct, Weeks had stated that the jacket had come from Ingram’s locker. Further, Thomas testified that the marijuana was found in the sleeve of the jacket that Weeks was wearing when he returned to the jail.

¶ 19. The jury considered all of the testimony presented at trial and concluded that Weeks was guilty as charged. “[T]he jury is the sole judge of the credibility of witnesses, and the jury’s decision based on conflicting evidence will not be set aside where there is substantial and believable evidence supporting the verdict.” Billiot v. State, 454 So.2d 445, 463 (Miss.1984) (citing Harrigill v. State, 381 So.2d 619, 623 (Miss.1980)). This issue lacks merit.

¶ 20. THE JUDGMENT OF THE LE-FLORE COUNTY CIRCUIT COURT OF CONVICTION OF INTRODUCTION OF CONTRABAND INTO A JAIL FACILITY AND SENTENCE OF SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEFLORE COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., concur.

      . In Lindsey, the Mississippi Supreme Court prescribes the procedure to be followed when a defendant's attorney does not find any arguable issues supporting an appeal.

      . It is standard procedure for inmates who leave the facility to be subjected to an individual full-body search before they are allowed to return to their cells.

      . Perkins also testified at trial and relayed the same sequence of events as Thomas.

      .Thomas, Perkins, and Cates denied having any knowledge of a policy which permits trusties to bring extra clothing that has been left in the solid waste department back to the jail.

      . In his brief, Weeks states that the twenty-dollar bill was recovered from his sock.


author: LEE, P.J.,

text:
    Ricky FORRESTER, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00748-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2007.

      Jeffrey J. Hosford, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, P.J., IRVING and ROBERTS, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On January 13, 2006, a jury in the Clay County Circuit Court convicted Ricky Forrester of selling cocaine. Forrester was sentenced to serve eighteen years in the custody of the Mississippi Department of Corrections with five years post-release supervision and ordered to pay a $5,000 fine as well as complete a drug rehabilitation program. Forrester then filed a motion for a new trial or, in the alternative, a judgment notwithstanding the verdict. On March 31, 2006, the trial court denied For-rester’s motion. Forrester now appeals asserting one issue, namely that the trial court erred by failing to grant jury instructions D-6 and D-7 as to the defense of entrapment.

FACTS

¶ 2. In January 2005, Brenda Weaver, a known cocaine addict, was serving as a confidential informant for the Tri-County Narcotics Task Force. Weaver’s job as a confidential informant was to use the telephone in a particular motel room to make drug deals and have the drugs delivered to the motel room. Video cameras were set up in the motel room and Task Force agents monitored the audio from a distance. On January 5, 2005, Weaver called Forrester and asked him to bring her a twenty dollar rock of crack cocaine. For-rester, an admitted drug user, was intimately involved with Weaver at the time. Forrester arrived at the motel room and gave Weaver the cocaine in return for twenty dollars. Forrester admitted that he and Weaver used drugs together approximately once or twice per week. For-rester stated that it was common for one of them to get the drugs and then they would share.

¶ 3. After Forrester exited the motel room, Agent Terry Scott, a member of the Tri-County Narcotics Task Force, took custody of the rock of crack cocaine. Agent Scott testified that Weaver conducted several other transactions that day as well as another transaction the next day involving Forrester. Upon leaving the motel room the second day, Forrester was arrested by Task Force agents. Forrester was acquitted of the second sale charge.

DISCUSSION

I. DID THE TRIAL COURT ERR BY FAILING TO GRANT JURY INSTRUCTIONS D-6 AND D-7 AS TO THE DEFENSE OF ENTRAPMENT?

¶ 4. In his only issue on appeal, Forrester argues that he was entitled to submit an entrapment instruction to the jury. Forrester claims that he was entrapped because he was induced into committing a crime that he would not normally have committed. “Whether the entrapment defense should be submitted to the jury depends upon whether there is credible evidence in the record supporting such a defense. Our question then is whether there was sufficient evidence in the record that a rational jury might have found for [the appellant] on the entrapment issue.” Walls v. State, 672 So.2d 1227, 1230 (Miss.1996) (quoting Avery v. State, 548 So.2d 385, 387 (Miss.1989)). Standard entrapment occurs “when an innocent person with no prior criminal inclination is induced through persistent entreaties by undercover law enforcement agents to commit an offense.” Ealy v. State, 757 So.2d 1053, 1056(¶ 7) (Miss.Ct.App.2000). Once the defendant produces evidence that he was induced by a government agent to commit the criminal act and that he did not have a predisposition to commit the criminal act, the burden shifts to the prosecution to produce evidence of predisposition and the defendant is entitled to a jury instruction on entrapment. Walls, 672 So.2d at 1230. Furthermore, Forrester is not excused from buying or selling cocaine simply because Weaver asked him to do so. Ealy, 757 So.2d at 1057(¶ 11); Tribbett v. State, 394 So.2d 878, 882 (Miss.1981). “Entrapment instructions are not necessary where a defendant was merely asked to sell the substance and he was caught.” Robinson v. State, 784 So.2d 966, 970(¶ 7) (Miss.Ct.App.2000).

¶ 5. Forrester argues that the evidence shows he was not predisposed to commit the crime prior to the inducement by law enforcement. However, we find that the record reflects otherwise. For-rester admitted that he had sold marijuana twenty-three years ago. Forrester admitted that he began using cocaine approximately six years prior to trial. Forrester admitted that he was the supplier when he and another unnamed friend frequently used drugs together. Forrester testified that no one forced him to purchase the cocaine and bring it to Weaver’s motel room. Forrester admitted that he and Weaver used drugs together once or twice a week and it was common for one of them to buy the drugs. The record reflects that Weaver only called Forrester once on January 5th to ask him to bring her cocaine. Forrester admitted that he was willing to do what Weaver requested. Agent Scott testified that Forrester was not specifically targeted, rather Weaver was instructed to contact anyone she knew who sold drugs.

¶ 6. From Forrester’s own testimony, we fail to see how a rational jury could find he was “induced through persistent entreaties” by law enforcement officials to commit the offense. We find that the trial court properly refused Forrester’s entrapment instructions.

¶ 7. THE JUDGMENT OF THE CLAY COUNTY CIRCUIT COURT OF CONVICTION OF THE SALE OF COCAINE AND SENTENCE OF EIGHTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE YEARS OF POST-RELEASE SUPERVISION AND PAY A $5,000 FINE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAY COUNTY.

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