author: GRIFFIS, J.,

text:
    WAFFLE HOUSE, INC., Self-Insured, Appellant v. Kimberly ALLAM, Appellee.
    No. 2006-WC-00840-COA.
    Court of Appeals of Mississippi.
    July 17, 2007.
    Rehearing Denied Nov. 27, 2007.

      Gary K. Jones, Jackson, Mary Frances S. England, attorneys for appellant.
    Tina L. Nicholson, Gulfport, attorney for appellee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Kimberly Allam filed a workers’ compensation claim against her employer, Waffle House, Inc., for injuries sustained when she fell while unloading boxes from a delivery truck. The Workers’ Compensation Commission held that her injury was not compensable. The Hinds County Circuit Court reversed the Commission’s decision. Waffle House appeals and argues that the circuit court’s decision was not supported by substantial evidence. We find no error and affirm. We remand to the case to the Commission for a determination of benefits.

FACTS

¶ 2. In the summer of 2003, Allam was employed as a district relief manager for Waffle House. Her job was to relieve district managers on their off days. Around June 9, she was working at the Waffle House located on the 1-55 North Frontage Road in Jackson. While carrying a box from a delivery truck to the cooler, she slipped on a package of ketchup and fell and landed on her right buttock. At the time, she did not realize that she had also hurt her back as well. When the driver of the delivery truck came in, she informed him that she had just fallen.

¶ 3. When her district manager, Les Brewer, called her later that day, she informed him of the accident. The next morning, she also informed her other district manager Troy Ridgely and division manager Robert Wilbanks of the accident and injury. Ridgely and Wilbanks denied that the fall hurt her. Ridgely told her she just lacked enough potassium and needed to eat a banana. Wilbanks flippantly suggested that perhaps “wild sex” was the culprit. Allam kept reporting the injury to her managers every time she saw them and told them she was in too much pain to keep working.

¶ 4. The following Monday, June 16, Al-lam went to see Dr. C. Brent Meador with complaints of lower back pain radiating into her right buttock and posterior thigh and calf. She was eventually diagnosed with a bulging disc which was pressing on her lower right back. After non-operative treatment proved unsuccessful, she had back surgery on October 27.

¶ 5. Allam eventually quit work at Waffle House because she was in too much pain and her employer refused to give her lighter work or fewer hours. She tried a series of other similar jobs, which she proved unable to tolerate physically. There were two other jobs for which she applied, but she could not get those because she did not have an open checking account.

¶ 6. On October 20, 2003, Allam filed her petition to controvert. A hearing was held before the administrative law judge, and the only evidence presented came from Allam and her medical records. Allam’s medical records indicated that she sustained an on-the-job injury as a result of a fall and a “lifting injury” at the time she alleged. The independent medical examination concluded that Allam’s injuries were consistent with her description of the accident. Waffle House did not offer any evidence. The Commission, however, determined that Allam had not sustained a work related injury. The circuit court reversed and held that it was error to disregard Allam’s undisputed testimony.

STANDARD OF REVIEW

¶ 7. This Court’s scope of review in workers compensation cases is limited to a determination of whether the decision of the Commission is supported by substantial evidence. Westmoreland v. Landmark Furniture, Inc., 152, So.2d 444, 447(¶ 7) (Miss.Ct.App.1999). The Commission sits as the ultimate finder of fact; its findings are subject to normal, deferential standards upon review. Natchez Equip. Co. v. Gibbs, 623 So.2d 270, 273 (Miss.1993). We will only reverse the Commission’s rulings where findings of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious. Westmoreland, 752 So.2d at 448(¶ 8); Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1225 (Miss.1997).

¶ 8. “[A] finding is clearly erroneous when, although there is some slight evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made by the Commission in its findings of fact and in its application of the Act.” J.R. Logging v. Halford, 765 So.2d 580, 583(¶ 13) (Miss.Ct.App.2000). “Where no evidence or only a scintilla of evidence supports a Worker’s Compensation Commission decision, this Court does not hesitate to reverse.” Foamex Prods., Inc. v. Simons, 822 So.2d 1050, 1053(¶ 11) (Miss.Ct.App.2002).

ANALYSIS

¶ 9. Waffle House argues that the Commission was able to determine Allam’s credibility and reject her testimony on that basis. To support this claim, Waffle House argues that Allam’s testimony was wholly uncorroborated and contradicted by the medical records. Allam disagrees, argues that her testimony was corroborated by the medical records, and maintains that it was error for the Commission to reject her undisputed evidence.

¶ 10. When the claimant’s testimony is undisputed and not so unreasonable as to be unbelievable, taking into account the factual setting of the claim, her testimony generally ought to be accepted as true. Westmoreland, 752 So.2d at 449(¶ 15). “Likewise, the Commission, sitting as judge of the credibility of the witnesses, has the authority to accept or reject testimony depending on the circumstances which demonstrates the degree of trustworthiness or credibility accompanying the testimony at issue.” Id. “Negative testimony concerning the cause of injury may be substantial evidence upon which a claim may be denied.” Id. (quoting White v. Superior Prods., Inc., 515 So.2d 924, 927 (Miss.1987)). Contradiction exists when there is affirmative evidence to the contrary. Hedge v. Leggett & Platt, Inc., 641 So.2d 9, 11-12 (Miss.1994).

¶ 11. In Westmoreland, this Court affirmed the Commission’s credibility determination and subsequent denial of benefits. Westmoreland testified that he injured his back while lifting a piece of furniture at work. Westmoreland, 752 So.2d at 446(¶ 3). He informed his supervisors and was sent to the doctor right away. Id. The Commission discredited Westmoreland’s testimony and denied his claim. Id. at 447(¶ 5). Co-workers who were working near him at the time of the alleged injury testified they did not see him hurt nor hear him complain of an injury. Id. at 449 (¶¶ 13-14). One co-worker in particular claimed that Westmoreland came in and announced he was not going to work very hard that day. Id. at (¶ 14). Soon afterwards he went on a smoke break. Id. After his smoke break is when he reported an injury to his supervisor. Id. This Court found this to be “contradicting testimony.” Id. at (¶ 15). Furthermore, West-moreland failed to tell his doctors that he had hurt his back before. Id. at 450 (¶ 18). His most recent trouble with his back occurred when he had hurt it at home a few weeks before the alleged work injury. Id. All doctors testified that taking the new information into account, they could no more attribute the injury to work than they could to the incident at home. Id. at 450-51 (¶¶ 18-20). The Court found the above evidence contradicted Westmoreland’s claim and gave substantial credible evidence to support the Commission’s decision. Id. at 451 (¶¶ 21-22).

¶ 12. In Hedge, the supreme court reversed the Commission’s denial of benefits where there was no affirmative evidence that contradicted the claimant’s proof. Hedge, 641 So.2d at 11-12. Betty Hedge and her doctor testified that she suffered from certain respiratory problems which were aggravated by workplace irritants such as glue and foam dust. Id. at 10-11. Co-worker Beatrice Merritt testified that there was foam dust in their work space which would get on her own clothes and hair. Id. at 10. The only evidence proffered by the employer was the medical testimony of Dr. Robert Norwood Jones. Id. at 11. Dr. Jones testified that it was “possible but not likely” that Hedge’s condition was aggravated by her work environment. Id. He maintained there was insufficient evidence to conclude that Hedge’s injury was work related. Id. The Court held:

That testimony of Dr. Jones did not embrace evidence which contradicted Dr. Moore’s statements that Betty’s workplace environment ... contributed to her respiratory problems. Absent affirmative testimony to the contrary, Dr. Moore’s testimony remained uncontro-verted and satisfied the burden of proving a causal connection between Betty’s workplace and the exacerbation of her asthma.

Id. at 11-12. Because Dr. Jones “did not state that workplace exacerbation of Betty’s asthma did not occur,” his “testimony was deficient for purposes of rebutting the affirmative testimony of Dr. Moore.” Id. at 14. Hedge’s evidence remained uncon-troverted, and the Commission erred in denying her claim. Id. at 15.

¶ 13. Here, Allam testified that she was at work when she slipped on a package of ketchup while carrying a box to the cooler. She told the truck driver right away. She also reported the work injury to three supervisors. As a result of the fall, she testified she sustained an injury to her lower back, right buttock and posterior right thigh and calf. She stated that she did not have these injuries until the fall. Her medical records before the fall indicate no prior report of a back injury. She testified that she told Dr. Meador that it was a work injury, although she was going to go ahead and file it on her personal insurance. Dr. Meador noted that she fell, but did not indicate it was at work. In the one part of her medical records where she was specifically asked to record the cause of her injury, she marked “on-the-job injury.”

¶ 14. Allam’s medical records corroborate the approximate date and nature of her injury. In fact, the record from the independent medical examination reveals the conclusion that, “[h]er historical representation of her problems is compatible with her overall physical evaluation in that she does have loss of active lumbar reserve and also has some positive radicular changes into her right lower extremity.” This finding was sufficient to establish Al-lam’s prima facie case. The question we must answer was whether or not this finding was contradicted.

¶ 15. The Commission found that Allam did not sustain her burden of proving a work related injury because (1) she did not file a workers’ compensation claim, (2) she filed the doctor visits on her personal insurance, (3) not all of her medical records mentioned a work injury and on one medical record, she indicated this work related injury occurred on “5-03.” We examine these findings in turn.

A. Failure to file a claim

¶ 16. During oral argument, counsel for Waffle House conceded that this finding by the Commission was not enough to contradict Allam’s evidence that her injury is work related. Furthermore, there was simply no evidence to support a conclusion that Allam did not report a work injury to or file a claim with her employer. Her testimony was undisputed that she reported it to her supervisors the same day, next day and subsequent week. After her managers consistently rejected her claim, Allam filed a petition to controvert approximately five months after the injury. Indeed, Allam could have waited as long as two years to file her petition to controvert. Miss.Code Ann. § 71-3-35(1) (Rev. 2000). This finding by the Commission is not supported by substantial evidence, and indeed, it has no merit.

B. Personal insurance

¶ 17. During oral argument, Waffle House conceded that this finding does not contradict the existence of a work injury. The evidence before the Commission was undisputed that she told her managers that she had suffered a work related injury, but they dismissed her out of hand. Having been denied, Allam could either opt to pay her medical providers out of her own pocket, file the charges on her personal medical insurance, or go without medical treatment altogether. Allam’s decision to file her charges with her personal Blue Cross/Blue Shield health insurance coverage corroborates her testimony that she was injured and that Waffle House had refused to pay her medical bills. Nevertheless, it does not contradict the existence of a work injury. This finding by the Commission is not supported by substantial evidence, and indeed, it has no merit.

C. Not all medical records mention a work injury

¶ 18. Unlike the preceding findings, here, Waffle House does not concede that this finding fails to contradict the existence of a work injury. Waffle House argues instead that the fact that not all medical records mention a work injury is, in fact, the substantial evidence sufficient to rebut Allam’s prima facie case. Waffle House further contends there is a “large pile of inconsistencies” in the medical records which contradict Allam’s claim.

¶ 19. A review of Allam’s medical records indicate that her claim is only corroborated and not contradicted.

1. January through May 2003

¶ 20. On January 21, February 4 and 28, March 18, April 3 and 25, and May 16 and 30, 2003, Allam visited Dr. Meador complaining only of a plantar wart.

2. June 16, 2003

¶ 21. On June 16, Dr. Meador noted that Allam reported a recent fall, “and has had back pain ever since. She actually had her appointment for ... wart.” The records indicate that the lower back pain radiated into Allam’s leg. Dr. Meador ordered an x-ray of her lumbar spine, which indicated, “mild hypertrophic changes” with narrowing at L5-S1. He scheduled her for an MRI at Central Mississippi Medical Center (“CMMC”).

3. June 17, 2003

¶22. The MRI at CMMC was performed on June 17. The CMMC admission record lists “low back pain” as the admitting diagnosis. In the “Accident” blank, the word “other” is typed in by hospital staff. There was no indication of what accidents the word “other” excluded or included. June 17, 2003, was listed as the “accident date.” The MRI revealed, “a bulging disc change at L4-5, slightly lateral at the L4-5 level on the right side, more than the left, without other inter-spaces involved.” The conclusion was “generalized bulging disc change with lateral protrusion on the right side at L4-5.”

Ip. June 18-19, 2003

¶ 23. On June 18, Allam was admitted to CMMC by Dr. Meador. She was examined by Drs. Greg Oden and Winston Ca-pel. They diagnosed her with lumbar disc displacement.

¶ 24. Attending physician Dr. Oden’s notes read:

Patient presents with low back pain.... She presents to us now complaining of several days of severe lower back pain. It has progressed particularly over the last week and now radiates down the right lower extremity. She is very uncomfortable with sitting. She is actually most comfortable standing up she states. She does have strength in the leg, but certainly complains of radicular pains that are transient. She continues to have control of bowel and bladder activity. She has been uncontrolled with Lor-tab 10 and muscle relaxants at home and therefore is admitted.

He noted that the “MRI of the spine revealed generalized bulging disc on the lateral protrusion on the right side of L4 and L5. Lumbar x-rays demonstrate partial lumbarization in the first sacral element resulting in six apparent lumbar vertebral bodies, but no evidence of acute abnormality.” He placed her on a morphine pump, and ordered a neurological and pain management consult.

¶ 25. Neurological consultant Dr. Capel records:

This patient presents with right leg pain beginning approximately one week ago. She denies numbness or weakness, bowel or bladder difficulties. The patient denies dramatic precipitation. The patient has full range of motion of the hip without pain. Straight leg-raising is weakly positive. Motor exam shows 5/5 in all groups. Sensory is intact to pin prick. MRI shows transitional segment, L5-L6 degeneration and minor prolapse without gross significant compression.

He recommended “conservative measures, Medrol dose pack, analgesics and observation with followup in four weeks.”

¶ 26. After meeting with pain management consultant Dr. Tauqeer Yousuf, Al-lam was discharged on June 19 and was prescribed Bextra, Lorcet Plus, and Me-drol.

5. June 27, 2003

¶ 27. Allam reported to Dr. Meador on June 27, “crying, hurting in lower back.” His records reveal that she was unable to sit or stand, and her leg was going numb at times. Dr. Meador referred her to neurologist Dr. Jack Moriarty and prescribed pain medicine.

¶28. Allam reported to Dr. Moriarty that same day. Dr. Moriarty’s records states:

The patient says that about a month ago she noticed pain in her right buttock and posterior thigh and leg. It did not radiate to her foot. She denies left lower extremity symptoms. She denies axial low back pain. She says that the pain is significantly increased with standing. She is currently unable to sit up evenly secondary to the pain.... She is unable to put on her shoes or socks secondary to the pain. She has treated this with Medrol, Valium, and Lorcet without durable relief.

Dr. Moriarty reviewed the June 17 MRI films and noted, “They show mild L4/L5 loss of water and a very small broad-based disc bulge. There is also moderate bilateral L4/L5 foraminal stenosis with a possible right far lateral broad-based disc bulge causing some nerve root compression. There is also the possibility of bilateral L4 ? ? [sic] fracture.” He noticed weakness in the iliopsoas, quad, and dorsiflexion in the motor exam of her right leg. He wrote that the weakness may be secondary to pain. His final assessment of Allam was, “Her MRI shows only moderate nerve root compression at L4/L5, but there is the possibility of a pars fracture and some foraminal stenosis. This could account for her right lower extremity pain, as she does appear to have worse right-sided L4 nerve root compression than left.”

¶ 29. Dr. Moriarty referred Allam to Dr. Jeffrey T. Summers for pain management. She saw Dr. Summers on June 27. Dr. Summers had her fill out a Pain Management Questionnaire, on which Allam recorded that, she had an “on the job injury.” She wrote the date of injury was “5-03.” He wrote Dr. Moriarty a letter which stated:

Kimberly Allam has a one month history of lower back pain that over the past two weeks has intensified and radiated into the posterior extremities to the mid-leg. I’m able to reproduce her pain with straight leg raise testing, Faber’s testing or lumbar flexion, all of which provoke a low back and right lower extremity pain. She’s also reporting diminished sensation in the posterior thigh and calf distally to the mid calf on the right. She’s absent her right ankle reflex. Her back and leg pain suggest a radicular process.

Dr. Summers noted he would proceed with epidural injections. The medical records on this date indicate:

Kimberly Allam has a history of lower back pain since a lifting injury a month ago. Over the past two weeks her pain has begun to intensify and radiate into the right gluteal area and posterior thigh and calf to the mid calf. Her pain is aggravated with sitting or riding, and is diminished with standing or left lateral recumbency. She denies any persistent neurological changes, nor any bladder/bowel dysfunction other than that her pain is increased with a bowel movement. ... She’s able to heel and toe walk, though she has a slightly antalgic gait. She sits with her right gluteal area off-loaded, and with walking, also leans to the left. Lumbar flexion at 80 degrees reproduces her back and leg pain, though extension at 25 degrees or lateral bending provokes no discomfort. Faber’s testing and straight leg raise testing provoke her back and leg pain. She’s reporting diminished sensation in the right posterior thigh and calf, and she’s absent her right ankle reflex.... Her back and leg pain suggest a possible radicular process. Her worst pain typically involves the posterior thigh and calf in an L5/S1 dermatomal distribution. ... Though her pathology seems to be more significant at L4 and L5, her pain pattern suggests more of a possible L5 or SI involvement. I attempted a selective nerve root block, but there were no significant sensory changes after the procedure, and I did not feel that I could make any diagnostic impression based on the results of the injection.... I’ll see her back in two weeks....

6. July 1, 2003

¶ 30. Allam saw Dr. Summers again on July 1. She reported her pain as a nine out of ten. The record reflects she had numbness from her right buttock to her ankle. Dr. Summers wrote that Allam has continued having low back and right lower extremity pain. Straight leg raises and lumbar flexion both provoked low back and posterior thigh pain that extends to her knee. Reflexes of her right knee were slightly attenuated. He administered the epidural injections and advised her to increase her Neurontin.

7. July 17, 2003

¶ 31. Allam went to Dr. Summers on July 17 for epidural injections. She reported her pain as six out of ten. She reported a sensation of pins and needles from her right buttock to her right posteri- or calf. Dr. Summers’s notes read that Allam reported significant improvement ■with the epidurals, and “She has a gluteal pain that now ‘skips’ her thigh to the calf.” Straight leg raises were negative. Lumbar flexion provoked gluteal pain extending to the thigh. He scheduled her return in two weeks.

8. August 5, 2003

¶ 32. Allam saw Dr. Meador again on August 5, for a one month follow-up of her back injury. He diagnosed her with a protruding disc and muscle spasms. The record from this date indicates, “However it is greatly improved since the last time we saw her secondary to a fall.”

9. August 12, 2003

¶ 38. Allam saw Dr. Summers on August 12. She reported the most pain in the last month to be a six out of ten. She described her pain as pins and needles in her right buttock, aching in her right posterior thigh, and stabbing and numbness in her right posterior calf. Dr. Summers administered epidural injections in the right L5 and SI nerve root. He diagnosed her with lumbar radiculopathy. Dr. Summers wrote to Dr. Moriarty that Allam was reporting progressive improvement in her right lower extremity pain. He wrote:

Her worst pain is in the gluteal area. Straight leg raise testing provokes a posterior knee pain, but no distal lower extremity symptoms. Lumbar flexion at 90 degrees provokes an increasing glu-teal pain, but again, no radiating component is noted. She still has an attenuated right ankle reflex, and reports slight hypesthesia in the posterior thigh and calf.

Dr. Summers stated that these were the last scheduled epidurals, and he was going to have her evaluated for physical therapy, “as a lot of her residual proximal lower extremity pain may have a muscular component as well.”

10. September 8, 2003

¶ 34. Allam saw Dr. Meador for refills of her medication. She reported that the epidural injections were not helping her back pain. “She does have a bulging disc that apparently does press on a nerve root on the right side.” “Palpation of the back shows she has considerable muscle spasm in the left and right lumbar areas, right greater than left. Straight leg test is slightly positive on the right.” He referred her back to Dr. Moriarty.

11. September 30, 2003

¶ 35. Allam returned to see Dr. Moriarty. She continued to complain of significant right lower extremity pain, with no relief from epidurals. Dr. Moriarty concluded:

I think that her lumbar MRI does show L4-5 disc degeneration which does cause moderate to severe bilateral fora-minal stenosis. There is also some slight lateral recess stenosis. I think the patient’s main problem is from her right L4 nerve root being compressed within the L4-5 foramen. However, I would like to rule out or identify preop-eratively any lateral recess compression of her L4 nerve root as well as lateral recess compression of her L5 nerve root at L4-5.

He ordered a lumbar myelogram. It revealed, “clear decreased filling of her right L5 nerve root and also the possibility of far lateral compression of her L4 nerve root at the L5 level,” as well as “clear evidence of poor filling of her left SI nerve root.” Dr. Moriarty and Allam discussed back surgery, which Dr. Moriarty ordered.

12. October 27-28, 2003

¶ 36. On October 27, 2003, Allam was admitted to River Oaks Hospital by Dr. Moriarty, with an admitting diagnosis of “right L4-5 spondylosis with far lateral disc protrusion with foraminal compression of right L4 nerve root and lateral recess compression of right L5 nerve root.” In addition to weakness in her right iliopspas, quads and dorsiflexion, she showed weakness in her right EHL.

¶ 37. The medical records from this visit read, “She had myelographic evidence of compression of the right L5 nerve root within the lateral recess and the right L4 nerve root within the foramen.” Because of “failed multiple efforts at non-operative therapy,” back surgery was performed. Specifically the procedure consisted of “right L4-5 decompression with far lateral decompression and far lateral microlumbar discectomy.” She was discharged the next day and told to follow up with Dr. Moriarty in eight weeks.

IS.November S, 2003

¶ 38. Dr. Meador followed up with Al-lam after her back surgery. He recorded that she was still having some pain, but the straight leg raise test was negative.

1U- November 7, 2003

¶ 39. Allam returned to see Dr. Mea-dor, complaining of pain radiating from her right buttock to her ankle. Dr. Mea-dor diagnosed her with back and leg pain secondary to her back surgery.

15. November Up, 2003

¶ 40. Dr. Moriarty stated that Allam may return to work effective November 20, but with the restrictions of no lifting over ten pounds and no bending or twisting at the waist.

16. December 15, 2003

¶ 41. Dr. Russell L. Carlisle saw Allam on December 15. His notes report, that she “slipped and fell during summer and injured lower back.” The records note, “States her back hurts increased with prolonged standing or sitting. Patient was previously working as a Waffle House manager.” The records indicate that her surgical scar was present in the midline of L-spine. She had a fair range of motion of her L-S spine. He assessed her with lower back pain, “s/p recent lumbar surgery (due to disc damage from fall),” anxiety, and probable degenerative disc disease. He prescribed Lortab.

17. February 16, 2004.

¶ 42. Dr. Carlisle’s nurse called in prescription refills per Dr. Carlisle’s orders.

18. March 15, 2004

¶ 43. Allam saw Dr. Carlisle for a follow-up visit. He gave her the same assessment as before. He recorded that she had been walking two miles a day and the medicine was helping her a lot. She “works six days a week at Western Siz-zlin.” She exhibited good range of motion with minimal pain.

19. October 21, 2004

¶ 44. Dr. W. Jerry McCloud performed the independent medical exam on October 21, 2004. She reported the date of injury as July 1, 2003. He noted, “Ms. Allam was injured when she was putting boxes on some shelves and evidently one of the boxes fell and she lost her balance and fell pretty much on her right hip.” Dr. McCloud stated that her physical symptoms were consistent with her description of the accident. However, Dr. McCloud assumed the July 1 date is correct, and therefore thought that all of her prior visits are from different fall. He dated the injury as having first occurred prior to July 1. Neither the Commission nor Waffle House take issue with this date discrepancy given by Allam well over a year after her accident. As is clear from the record, Allam had been reporting this work related fall well before July 1, 2003.

¶ 45. In sum, Drs. Summers’s and McCloud’s medical records clearly list the injury as a work injury. Many of the other records do not indicate whether it was a work injury. However, on these records, there was never any other cause listed. Allam testified that she told some of her doctors it was a work injury, even though they did not record it. The medical records corroborate this fact. Specifically, while Allam herself wrote on Dr. Summers’s pain questionnaire that it was a work injury, no where in the notes does he mention this fact. She testified that other doctors did not ask her the origin of her injury. The evidence that her injury is work-related remains uncontradicted.

¶ 46. Finally, the Commission relied on the date discrepancy on the pain management questionnaire. On that questionnaire, Allam filled out the date of injury as “5-03.” Dr. Summers, in that same office visit, noted that the injury happened “about a month ago.” Taken together, this indicates that Allam estimated for Dr. Summers the date of her injury as occurring within the general period (May 27 through June 9) as she reported it elsewhere (June 9). All other medical records, before and after this one, give the date of injury as during the first full week of June. It is undisputed that Allam was working for Waffle House in May as well as June 2003. This discrepancy is equivocal at best and does not provide substantial credible evidence to reject Allam’s claim. Hedge, 641 So.2d at 11-12.

¶ 47. We find the Commission’s denial of Allam’s claim was not supported by substantial, credible evidence. It is undisputed that she contemporaneously and consistently reported her work injury to three supervisors, as well as doctors. She had no history of back trouble before this time. Her claim is not contradicted by the fact that she used her personal insurance to pay for her visits. Her medical records corroborate the time, nature and origin of her injury. The only discrepancy is that she one time reported the date of injury as “5-03.” As discussed above, this evidence is equivocal at best. It is not substantial credible evidence on which the Commission’s decision may be affirmed. Absent affirmative evidence to the contrary, Al-lam’s evidence remained uncontradicted.

CONCLUSION

¶ 48. We affirm the circuit court’s reversal of the Commission’s denial of benefits.

¶ 49. Allam requests that this Court determine the extent of her benefits. As with compensability, the only evidence on the extent of disability and benefits came from Allam. We remand this case to the Commission for a determination of benefits consistent with this opinion. Id. at 15.

¶ 50. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED AND THIS CAUSE IS REMANDED TO THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION FOR A DETERMINATION OF BENEFITS. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Christopher Cornielus MOORE a/k/a Christopher Moore a/k/a Christopher C. Moore, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-01544-COA.
    Court of Appeals of Mississippi.
    July 31, 2007.
    Rehearing Denied Dec. 4, 2007.
    Christopher Cornielus Moore, appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. Christopher Moore was convicted by entering a plea of guilty in the Lee County Circuit Court for the crimes of possession of cocaine with intent and possession of cocaine. He argues that his motion for post-conviction relief is not time-barred and should not have been dismissed by the circuit court. Finding no error, we affirm the dismissal of Moore’s motion for post-conviction relief.

FACTS

¶ 2. On July 23, 1998, Moore was indicted by a Lee County grand jury for the crimes of selling cocaine and possession of cocaine. Miss.Code Ann. § 41-29-139 (Rev.2005). On October 16, 1998, Moore entered a guilty plea for possession of cocaine with intent and possession of cocaine. On November 4, 1998, Moore was sentenced to a total of twenty-three years imprisonment. Moore was not incarcerated, but placed into the Intensive Supervision/House Arrest Program. Miss.Code Ann. §§ 47-5-1001 to 1015 (repealed effective June 30, 2004).

¶ 3. On August 18, 2006, Moore filed a pro se motion for post-conviction relief challenging his conviction and sentence, including placement in the Intensive Supervision Program. The circuit court dismissed the motion as time-barred. The circuit court further found that it had no jurisdiction to grant the requested relief due to the Mississippi Department of Correction’s administrative authority over persons removed from the Intensive Supervision Program. The court also found that it was without jurisdiction to reduce or modify a lawfully imposed sentence after a petitioner has already begun to serve that sentence. Aggrieved by the dismissal of his motion, Moore appeals. His appeal has been assigned to this Court.

DISCUSSION

¶4. A motion for post-conviction relief must be filed within three years of entering a guilty plea. Miss.Code Ann. § 99-39-5 (Supp.2006). However, an allegation of an illegal sentence is excepted from a procedural bar. Twillie v. State, 892 So.2d 187, 191(12) (Miss.2004).

¶ 5. Moore argues that he was subjected to an illegal sentence because he was convicted of a drug related offense. Moore was convicted of a crime under Section 41-29-139(a)(l). As such, he argues that he was ineligible for the Intensive Supervision Program. Miss.Code Ann. § 47-5-1003. However, at that time, Mississippi Code Annotated § 47-5-1003 stated: “Any offender convicted of a sex crime or a felony for the sale or manufacture of a controlled substance under the uniform controlled substances law shall not be placed in the program.” Moore pled guilty to possession of cocaine with intent and possession of cocaine. These offenses were not included in the list of offenses not eligible for the Intensive Supervision/House Arrest Program; therefore, Moore’s sentence was not illegal.

¶ 6. In addition, even in situations where there may be a jurisdictional defect, this Court has jurisdiction to review an allegation of an illegal sentence. Johnson v. State, 925 So.2d 86, 88 n. 1 (Miss.2006); Bennett v. State, 865 So.2d 1158, 1159(¶ 2) (Miss.2004).

¶ 7. In the present case, Moore does not complain that he has suffered from a sentence that is greater than that authorized by statute. The supreme court has held that “there is no prejudice suffered when a defendant receives an illegally lenient sentence.” Sweat v. State, 912 So.2d 458, 461(¶ 9) (Miss.2005). In Sweat, the supreme court held that the “law which relieves defendants from the burden of an illegal sentence applies to situations where the defendant is forced to suffer a greater sentence rather than the luxury of a lesser sentence.” Id. Moore argues that the language of Section 47-5-1003 prohibited him from receiving the benefit of being placed in the Intensive Supervision Program. As such, any illegality of the sentence Moore received was to his benefit. The circuit court properly dismissed Moore’s motion for post-conviction relief.

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

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


author: IRVING, J.,

text:
    Christopher D. FAIR, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-02216-COA.
    Court of Appeals of Mississippi.
    Aug. 7, 2007.
    Rehearing Denied Nov. 27, 2007.
    Raymond M. Baum, Winona, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Christopher Fair was convicted of capital murder by a jury and was sentenced by the Choctaw County Circuit Court to a term of life in the custody of the Mississippi Department of Corrections without the possibility of parole. Aggrieved, Fair appeals his conviction, and presents three issues for appeal: whether his confession should have been suppressed, whether the jury should have been given a manslaughter instruction, and whether cumulative errors demand the reversal of his case.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On February 4, 2005, Fair, who was sixteen at the time, was driving a car in Ackerman, Mississippi, with three passengers, when he was pulled over by police for various minor infractions. As the officer attempted to approach Fair’s vehicle, the vehicle sped away. That officer, as well as another officer who had observed the failed stop, began to pursue Fair.

¶ 4. The officers pursued Fair at speeds that got up to around eighty miles per hour, and multiple law enforcement officers joined the pursuit. The police set up roadblocks, but were unable to stop Fair. At one of these roadblocks, an officer fired a shotgun at the car in an attempt to stop it, but missed the car entirely. Fair eventually arrived at his home, with the officers in close pursuit. Fair and another passenger, Sylveeta Miller, exited the vehicle and ran inside Fair’s house, while the other two occupants of the vehicle ran around the house. Two officers, James Turner and Anthony Lucas, followed Fair and Miller into the house. Turner was a deputy with the Choctaw County Sheriffs Department, and Lucas was a Mississippi Department of Corrections probation officer and part-time French Camp, Mississippi, chief of police. Turner and Lucas pursued Miller, who ran into the back of the house where she attempted to open a door and flee the house. As Turner was attempting to secure Miller, he heard a gunshot and heard something drop to the floor.

¶ 5. When Turner turned around, he found Lucas on the floor. When Turner attempted to check on Lucas’s condition, he realized that Lucas had been severely injured. As he testified: “And I am pulling on him, hollering and screaming trying to get some response from him. When I pull on him trying to get him to get up, the blood just poured out from under him on the floor.” Lucas’s autopsy revealed that he had died from a shotgun wound to the head. At the time of the shooting, Turner noticed that there was a shotgun on the floor near Lucas, and he picked it up because he was “outnumbered in the house.... ” Turner then took the gun outside and secured it in his vehicle. Turner testified that he did not see Fair when the shot went off but that he later observed Fair “jumping around, hollering, screaming, out of control.” Thereafter, Turner and other officers worked to contain the crime scene, and Fair fled into the woods surrounding his house. Fair turned himself in at a roadblock around three in the morning and was taken into custody.

¶ 6. Fair was taken to the Choctaw County Justice Court Complex for questioning. At that time and several times prior, Fair was informed of his Miranda rights. Fair was questioned around five in the morning, at which time he admitted that he had shot Lucas. Fair told the officers that he made the decision to shoot a police officer while he and his companions were fleeing in the car from the traffic stop. Fair said that he decided to shoot a police officer because he “got tired of them foolin’ with me.” Fair stated that he knew Lucas was a police officer because of his uniform but admitted that he did not know when he shot Lucas whether Lucas had ever bothered him. Clay Bane, one of the officers who questioned Fair, testified that Fair was given the opportunity to explain why he had shot Lucas, and the only explanation he gave was that he was tired of the officers bothering him. Bane testified that Fair told him during the interview that Charlie Pittman was the officer that stopped Fair all the time, but Pittman was never involved in the events of February 4, 2005.

¶ 7. Additional facts will be related, as necessary, during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Suppression of Confession

¶ 8. Fair contends that his confession should have been suppressed because of his age, mental retardation, mental problems, and lack of understanding as to the rights he was waiving before he confessed. Specifically, Fair contends that given that he was “a 16 year old with a history of mental retardation and psychiatric problems, and the early morning hours when the statement was obtained, and the testimony of a child psychiatrist who had treated this individual the trial court should not have found ... that this was a free and voluntary act.” Fair argues that, under the totality of the circumstances, his confession was not voluntarily given. We have a narrow scope of review when reviewing a court’s admission of a confession, and “we will not overturn a finding of fact made by a trial judge unless it be clearly erroneous or contrary to the overwhelming weight of the evidence. Where, on conflicting evidence, the lower court admits a statement into evidence [we] generally must affirm.” Miller v. State, 740 So.2d 858, 867(¶ 34) (Miss.1999) (quoting Dancer v. State, 721 So.2d 583, 587(¶18) (Miss.1998)).

¶ 9. There are several factors at work in this case. First, Fair was only sixteen years old when he gave his confession, and he did so without the presence of his parents or an attorney. Second, there was significant evidence that Fair is mildly retarded, although that evidence was strongly debated below. Finally, Fair gave his confession in the early hours of the morning, after having fled from police and having been through what possibly were traumatic experiences. All of these circumstances must be viewed together to determine whether the court erred in ruling that Fair’s confession was knowingly and voluntarily given. See McGowan v. State, 706 So.2d 231, 235(¶ 13) (Miss.1997).

¶ 10. The State and Fair both presented expert psychological testimony at the suppression hearing below. Dr. Caroline Tingle, a child psychiatrist who had treated Fair before the incidents leading to his arrest, testified that Fair would be able to understand his rights if they were read to him slowly and if he were given the chance to ask questions about them. Tingle testified that Fair’s overall I.Q. had been tested as 55 in February of 2003, although the test had been run by someone else. During voir dire examination regarding Dr. Tingle’s qualification as an expert, she admitted that she had never been asked to make an evaluation as to Fair’s “competency to waive and understand his rights by a court.” As to Fair’s mental capability, Dr. Tingle testified that Fair was “somewhere in the ballpark of mildly mentally retarded to borderline intellectual functioning.” Dr. Tingle testified that the I.Q. test that had found Fair’s I.Q. to be 55 was “more consistent with mild retardation than with borderline. I have seen other reports with a higher verbal I.Q. on [Fair].”

¶ 11. Dr.. Tingle testified that Fair’s ability to waive his rights would be affected by his young age, possibly by his mild retardation, by Fair’s diagnosis of attention deficit disorder, and by the fact that Fair had been up all night before he gave his statement. Dr. Tingle clarified that she was not sure that the last would be true for Fair, as his sleep cycles may already have been “off’: “I had read something in Dr. McMichael’s report about he sleeps during the day and is up at night. That is the only part of it — I don’t know when he started doing that.” Dr. Tingle was asked whether the shot that was fired at Fair’s vehicle could have caused him to suffer from posttraumatic stress disorder, and Dr. Tingle stated that it hypothetically could: “Just a hypothetical, the answer is yes. I would be hesitant to go way out on that limb though, you know, because I didn’t see [Fair] that night. I don’t know that he was suffering from any posttraumatic stress.”

¶ 12. When asked directly by Fair’s attorney, “Dr. Tingle, based on your past experience with treating and diagnosing Christopher Fair ... in taking the totality of the circumstance [sic] into consideration ... would you be concerned that he really understood what he was doing when he gave his statement in terms of knowing what he was doing,” Dr. Tingle responded, “You know, I just don’t know. Certainly you would have concerns. You would want to make sure it was done properly.” Dr. Tingle explained: “I don’t think he could grasp it quickly. Maybe if it were done slowly, repeatedly and he was given an opportunity to ask questions. And he has also had some legal contact before so he may know some things.” During cross-examination, when asked whether she had any reason to doubt the conclusions reached by the doctors who examined Fair’s competency after the shooting, Dr. Tingle stated: “I certainly have great respect for both of them. All I can say is I don’t know. I don’t know if he did or not.” (emphasis added). Dr. Tingle testified further during cross-examination that she had most recently treated Fair in February of 2004, and that the majority of her time spent treating Fair was in 1998, seven years prior to trial.

¶ 13. Dr. Reb McMichael, the psychiatrist who was ordered by the court to evaluate Fair’s competency to give his statement, testified that Fair was competent to waive his rights. Dr. McMichael stated that nothing he had heard in the suppression hearing had changed his opinion of Fair’s competency. When asked about Dr. Tingle’s opinion and conclusions, Dr. McMichael gave the following answer:

When Dr. Tingle was treating [Fair] seven or eight years ago nobody asked her whether he was competent to waive or assert his right not to incriminate himself. She didn’t evaluate him for that. As far as I know, she has never evaluated anybody for that.
So if the question is, is Dr. Tingle more familiar with Mr. Fair clinically, the answer to that is correct. Yes, she is. If the question is, is she in a better position because of that to assist the Court in determining whether or not he can waive his constitutional rights, the answer to that is no, she is not.
She did not have access to all of the information that we had and I think this is an important distinction. Carol Tingle saw Mr. Fair as his therapist and physician for over a year. If she’s not sympathetic with him, she is in the wrong job. She was his doctor. I was not his doctor. I was his forensic evaluator. So I think I’m in a better position to assist the Court in answering the question that is my understanding is before us.

Dr. McMichael further testified that Fair tested at a 61 on his full scale I.Q. test at the state hospital, but that “we did not think [that] accurately represented his intellectual ability.” Dr. McMichael explained: “According to the individual who was doing the testing, Mr. Fair did not put forth much effort on the testing and there were times when he was malingering, i.e., faking.” When asked about Fair’s level of mental retardation, Dr. McMichael stated:

Well, again my memory is that in the testing I reviewed, at least on one occasion he scored as high as a 75. It is my understanding that while it is easy to fake dumb on intelligence testing, it is not possible to fake smart. So if the testing is accurate, I would assume that his I.Q. is at least 75.
Clinically, with all the clinical information that I reviewed and interviewing Mr. Fair and paying attention to his language usage and paying attention to his language usage in the transcript of his statement from the 5th of February, I would estimate that he is in the borderline range of intellectual functioning. I could not say definitively that he is not mildly, mentally retarded. If he is mentally retarded at all, he is in the very upper range of mild mental retardation. And I think he is not retarded and in the borderline range of intellectual functioning.

Dr. McMichael agreed with Dr. Tingle’s assessment to the degree that he admitted that it would have been preferable to question Fair when he was well-rested and after each of his rights had been carefully gone over, with some opportunity for Fair to ask questions. Dr. McMichael also agreed that a youth of Fair’s age would have more difficulty understanding his rights than an adult would. Dr. McMicha-el stated that his opinion of Fair’s competency to waive his rights was the same as that of the second doctor who helped evaluate Fair after the shooting.

¶ 14. In Woodham v. State, 800 So.2d 1148, 1154(¶ 17) (Miss.2001), the Mississippi Supreme Court noted that the totality of the circumstances test must be used when examining a juvenile’s confession because “[t]he age of the minor is seldom per se conclusive in deciding whether a confession was freely and voluntarily given.” (quoting Woodham v. State, 779 So.2d 158, 161(¶ 14) (Miss.2001)). The Woodham court noted that “[although Woodham was sixteen with no prior experience with the authorities, the record reflects he was Mirandized at least three times on the morning....” Id. The court also noted that, although Woodham was sixteen and had no prior law experience, he appeared to be of above average intelligence: “Woodham was not a person of low intellectual abilities. In his descriptions to the jury, he explained how he enjoyed reading philosophical works, such as Nietzsche, Aristotle, and Plato as well as classic literature by Dostoyevsky. He also conveyed his thoughts in several writings, including poetry and songs.... ” Id. at 1154-55(¶ 18).

¶ 15. Like Woodham, Fair was sixteen at the time of the shooting and his subsequent questioning. Unlike Woodham, Fair had had previous experiences with law enforcement. His own expert, Dr. Tingle, opined that these experiences may have impacted his ability to understand his rights. Furthermore, the record reflects that Fair was advised of his rights multiple times by various law enforcement officers. All the officers who testified at the suppression hearing testified that Fair appeared to understand his rights as they were read to him. The doctors who examined him in regard to his competency also found that he understood his rights as they were read to him prior to his confession. The evidence was conflicted as to how mentally handicapped, if at all, Fair was. Some tests apparently indicated that Fair was mildly mentally retarded, while other tests showed him as only borderline retarded.

¶ 16. In McGowan v. State, 706 So.2d 231, 237-38 (¶¶ 28-30) (Miss.1997), the Mississippi Supreme Court addressed the admissibility of statements made by a seventeen-year-old capital murder defendant whose most recent I.Q. test, taken several years before the incident, revealed that he had an I.Q. of 55. Despite a lack of expert testimony as to McGowan’s mental capability, the court found that there was no error in the admission of McGowan’s statements. Id. at 238 (¶¶ 31-32). Citing McGowan, the Mississippi Supreme Court in Dancer, 721 So.2d at 586-89 (¶¶ 11-27) upheld the admission of statements made by a thirteen-year-old who claimed that he was mentally handicapped. Unlike McGowan and Fair, Dancer’s I.Q. had never been tested, and all his evidence regarding any mental defect came solely from his scores on standardized tests and from school grades. Id. at 588-89 (¶¶ 24-27).

¶ 17. Under the totality of the circumstances, we cannot find that the court erred in admitting Fair’s confession. Dr. McMichael testified that the state hospital’s forensic examination of Fair’s competency led him and his peers to believe that Fair was competent to waive his rights prior to confessing, and that he understood the import of that waiver. Dr. Tingle did not testify that Fair could never understand his rights, and she emphasized that she did not examine Fair after his confession, as did Dr. McMichael. Dr. Tingle knew Fair only as a patient she treated, rather than in a forensic capacity. Furthermore, multiple officers testified that they either read Fair his rights or were present when another officer read those rights. All the officers indicated that Fair appeared to understand his rights, and nothing was presented to indicate that Fair had questions about his rights that went unanswered.

¶ 18. The decision of the court to admit Fair’s confession was neither “clearly erroneous or contrary to the overwhelming weight of the evidence.” This contention of error is without merit.

2. Manslaughter Instruction

¶ 19. Fair contends that the court erred when it refused to grant him a lesser-included offense instruction on manslaughter. “Lesser included offense instructions should be given if there is an evidentiary basis in the record that would permit a jury rationally to find the defendant guilty of the lesser offense and to acquit him of the greater offense.” Sanders v. State, 781 So.2d 114, 119(¶ 16) (Miss.2001) (quoting Welch v. State, 566 So.2d 680, 684 (Miss.1990)). The Sanders court also indicated that:

A lesser-included offense instruction should be granted unless the trial judge and ultimately this Court can say, taking the evidence in the light most favorable to the accused and considering all the reasonable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of the lesser-included offense ([and] conversely, not guilty of at least one element of the principal charge).

Id. (quoting McGowan v. State, 541 So.2d 1027, 1028 (Miss.1989)). The Sanders court cautioned that “a lesser-included offense instruction should not be indiscriminately granted, but rather should be submitted to the jury only where there is an evidentiary basis in the record.” Id. (citing Lee v. State, 469 So.2d 1225, 1230 (Miss.1985)).

¶ 20. Fair proposed several instructions related to manslaughter. Proposed instruction D-2 reads: “The Court instructs the jury that the killing of a human being, without deliberation, in the heat of passion, by the use of a dangerous weapon without authority of law and not in necessary self-defense, either real or apparent, is manslaughter.” Proposed instruction D-4 reads in relevant part: “The crime of manslaughter is distinguished from murder by the absence or failure to prove that the defendant acted with the necessary deliberation.” Proposed instruction D-ll reads:

The Court instructs the jury that one of the elements of the offense of capital murder which the prosecution must prove beyond a reasonable doubt is that the defendant acted with deliberation. “Deliberation” involves consideration and reflections upon the preconceived design to kill; turning it over in the mind; giving it a second thought. The mental process of deliberating requires that an appreciable time elapse between formation of the plan to kill and the fatal act.
Any killing of a human being, even though intentional but not excusable or justifiable on other grounds as the Court has instructed you, committed on impulse or in sudden passion and without deliberation becomes manslaughter.

Proposed instruction D-12 further attempted to define manslaughter for the jury:

The Court instructs the jury that heat of passion is defined as a state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.

¶21. Mississippi Code Annotated section 97-3-35 (Rev.2000) states: “The killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter.” The Mississippi Supreme Court has defined “heat of passion” as

a state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.

Simmons v. State, 805 So.2d 452, 473(¶ 31) (Miss.2001) (quoting Tait v. State, 669 So.2d 85, 89 (Miss.1996)).

¶ 22. Here, there is no evidentiary basis in the record for a manslaughter instruction. Fair stated in his confession to police that he formed the intent to shoot Lucas while he was fleeing police. Fair contends that his theory of the case was that he acted in the heat of passion “because of the fact that just minutes before [he] shot Anthony Lucas he had himself been shot at, and then minutes later armed intruders representing Choctaw County law enforcement stormed into his house.” However, nothing in the record indicates that Fair was frightened or startled when he shot and killed Lucas. When given the chance to explain why he shot Lucas, Fair mentioned nothing about being frightened or traumatized by the police chase. Instead, Fair maintained in his confession that he decided to shoot an officer because he was tired of the officers bothering him. Fair admitted that he formed this intent while he was fleeing from the site of the attempted traffic stop.

¶ 23. There is no evidentiary basis for a manslaughter instruction in the record. The arguments of counsel as to what Fair may or may not have felt at the time are irrelevant. There is nothing to indicate that Fair was frightened or that he acted in the heat of passion when he shot and killed Lucas, and Fair’s own statements to police indicated that he did not act in the heat of passion but rather acted deliberately in shooting Lucas. This contention is without merit.

3. Cumulative Error

¶ 24. As we have found no error in any part, we find no cumulative error that demands reversal. Wilson v. State, 936 So.2d 357, 365(¶ 24) (Miss.2006). Fair is entitled to a fair trial, but not a perfect one. Id. Nothing in the record indicates that Fair did not receive a fair trial, and this contention is also without merit.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF CHOCTAW COUNTY OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF A TERM OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT THE POSSIBILITY OF PAROLE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CHOCTAW COUNTY.

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

      . Whether Fair was driving the vehicle or was a passenger in the vehicle was contested below. The State's witnesses contended that Fair was driving the vehicle. The defense contended that Fair’s brother was driving the vehicle and that Fair was a passenger.

      . The car allegedly had only one functioning headlight and had at least one non-functioning tail light.

      . For example, Fair's appeal brief states that "a jury could have found ... that the deef-nant [sic], after being shot at and having his home invaded by armed intruders, albeit with badges, became enraged to the point where he lost the reason he possessed and for this reason took a life.” However, this interpretation of the events is belied by Fair's confession, where, as we have already discussed, he mentions nothing about killing Lucas because he was angry or upset because of the chase or the intrusion into his home.


author: ISHEE, J.,

text:
    Charles BESTER, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-01345-COA.
    Court of Appeals of Mississippi.
    Sept. 11, 2007.
    Rehearing Denied Dec. 4, 2007.

      Jones County Circuit Court, Hon. Billy Joe Landrum, J.
    Charles Bester, Appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before MYERS, P.J., ISHEE AND CARLTON, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Charles Bester pleaded guilty to the charges of rape and robbery on August 31, 1992, in Jones County Circuit Court. He was sentenced to a term of life imprisonment on the charge of rape and a term of seven years on the charge of robbery, to run concurrently with the life sentence, in the custody of the Mississippi Department of Corrections. On June 27, 2006, the trial court dismissed Bester’s motion to vacate, set aside, or correct sentence, finding his post-conviction relief motion was time-barred. Bester, pro se and in forma pau-peris, appeals the trial court’s dismissal, asserting the following issues: (1) the trial court committed reversible error when it denied Bester’s post-conviction relief motion finding Bester raised no argument, theory, alleged error, or other rational showing that he was entitled to relief, and (2) the trial court committed reversible error by refusing to hear the merits of Bester’s PCR motion. Finding no error, we affirm.

FACTS

¶ 2. On August 31, 1992, Charles Bester pleaded guilty to the charges of rape and robbery in the Circuit Court of Jones County. A guilty plea hearing was held, during which Bester was represented by public defenders, Gene Clark and David Ratcliff. The court adjudicated Bester guilty, “after examination,” and found that he entered the plea of guilty “freely, voluntarily, and intelligently.” Bester was sentenced to a term of life imprisonment for the charge of rape, and a term of seven years for the charge of robbery to be served in the custody of MDOC, with the seven-year term to run concurrently with the life sentence. On May 2, 2006, Bester filed a motion to vacate, set aside, or correct sentence. He asserted that the court did not advise him at his plea hearing that he had the “right to testify or not to testify, that he had the right to exercise the act of self-incrimination if need be, and the right to be informed of the maximum and minimum penalties of the alleged crimes against him.” Bester contended that had the court informed him of these rights, he would not have entered a plea of guilty. On June 27, 2006, the court summarily dismissed his motion finding that the three-year limitation period to file a PCR motion had lapsed and that Bester had not provided any showing that he was entitled to relief. On December 18, 2006, Bester timely filed his appeal.

STANDARD OF REVIEW

¶ 3. In reviewing the trial court’s decision to dismiss a motion for post-conviction relief, we will reverse if the movant can substantially show that the claim is proeedurally viable due to a denial of a state or federal right. Gaston v. State, 922 So.2d 841, 843(¶ 5) (Miss.Ct.App.2006) (citing Young v. State, 731 So.2d 1120, 1122(¶ 9) (Miss.1999)). Furthermore, we will not reverse absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(3) (Miss.Ct.App.2002) (citing Kirksey v. State, 728 So.2d 565, 567(8) (Miss.1999)). However, where questions of law are raised, the applicable standard of review is de novo. Pace v. State, 770 So.2d 1052, 1053(4) (Miss.Ct.App.2000).

ISSUES AND ANALYSIS

(1) The trial court committed reversible error when it denied Bester’s post-conviction relief motion finding Bester raised no argument, theory, alleged error, or other rational showing that he was entitled relief.
(2) The trial court committed reversible error by refusing to hear the merits of Bester’s PCR motion.

¶4. Mississippi Code Annotated section 99-39-5(2) (Rev.2006) provides in pertinent part that in the case of a guilty plea, a prisoner must make a motion for relief within three years of the entry of judgment. Excepted from the three-year statute of limitations are cases which the prisoner can show any of the following: (1) that there has been an intervening decision of either the Mississippi or United States Supreme Court that would have adversely affected the outcome of the conviction or sentence, (2) that the prisoner has newly discovered evidence that, had such evidence been introduced at trial, the outcome would have been different, or (3) that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Id.; Clark v. State, 875 So.2d 1130, 1132(¶ 10) (Miss.Ct.App.2004).

¶ 5. This Court has held where there has been no intervening decision by either the Mississippi Supreme Court or the United States Supreme Court that would have a bearing on the outcome of the case, there is no newly discovered evidence, nor is there a claim that the sentence has expired or that probation, parole, or conditional release has been unlawfully revoked, then the three-year limitation bars a PCR motion. Gaston, 922 So.2d at 843(¶ 7). In Durant v. State, 914 So.2d 295, 296(¶ 5) (Miss.Ct.App.2005), this Court agreed with the trial court’s dismissal of Durant’s PCR motion as time-barred, pursuant to section 99-39-5(2), where Durant waited sixteen years before filing his PCR motion and offered no statutory exception for the tardy filing. Id.

¶ 6. On August 31, 1992, the court adjudicated Bester guilty and sentenced him to life imprisonment for the charge of rape and seven years for the charge of robbery. Bester had three years from the date of his sentencing order to file a motion for PCR, pursuant to section 99-39-5(2). However, Bester did not file his PCR motion until May 2, 2006, almost fourteen years after the date of his sentencing order and he has not pleaded that any of the statutory exceptions apply. Therefore, we agree with the trial court’s dismissal of Bester’s motion as time-barred.

¶ 7. Finding that Bester’s appeal is time-barred from our review and that the court did not err in dismissing his PCR motion, we affirm.

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

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

      . The record before us does not contain a motion to enter a guilty plea; however, the sentencing order states that Bester withdrew a not guilty plea and petitioned the court to enter a plea of guilty to both rape and robbery. Additionally, the record does not contain a transcript of the plea hearing.


author: LEE, P.J.,

text:
    Michael James McDONALD, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-01231-COA.
    Court of Appeals of Mississippi.
    Sept. 18, 2007.
    Rehearing Denied Dec. 11, 2007.

      David Lee Brewer, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ISHEE, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On May 22, 2004, Michael James McDonald was at the beach in Gulfport, Mississippi, with his thirteen-year-old daughter and his two sons. McDonald was divorced from the children’s mother and was exercising his weekend visitation. Witnesses observed McDonald rubbing his daughter with suntan lotion in a manner described as inappropriate. The Gulfport Police Department was notified about alleged indecent exposure on the beach and dispatched officers to the scene. Officer Alfred Parker responded and witnessed an older male applying suntan lotion on a young female. Officer Parker witnessed the man place his hands under the female’s bathing suit over her breasts and between her buttocks after moving the swimsuit aside from her genital area. Two other witnesses made statements to the police corroborating the incident.

¶ 2. McDonald was approached by the police and taken to the station. His daughter told the police that her father wanted to give her a massage. She stated that he rubbed his hand under her swimsuit top and bottom. She further stated that he rubbed her vagina with his hand and also inserted his finger into her vagina. When the police arrived, she said her father told her not to say anything, that he would do all of the talking.

¶ 3. On May 24, 2006, a jury in the Harrison County Circuit Court convicted McDonald of two counts of gratification of lust under Mississippi Code Annotated Section 97-5-23(2). McDonald was sentenced to fifteen years on each count, with the sentences to be served concurrently in the custody of the Mississippi Department of Corrections.

¶ 4. McDonald filed a motion for a new trial, which the trial court denied. McDonald now appeals asserting two issues: (1) the trial court erred in refusing to allow him to introduce evidence concerning his divorce and custody battle with his daughter’s mother and (2) the trial court erred in failing to grant his motion for a new trial.

DISCUSSION

I. DID THE TRIAL COURT ERR BY NOT ALLOWING MCDONALD TO INTRODUCE EVIDENCE CONCERNING HIS DIVORCE AND CUSTODY BATTLE WITH HIS VICTIM’S MOTHER?

¶ 5. In his first issue on appeal, McDonald argues that the trial court erred by not allowing him to introduce evidence concerning the circumstances of his divorce and custody battle with his daughter’s mother. McDonald claims that these circumstances were relevant and would help explain why his daughter made inconsistent statements about the incident at the beach. McDonald is under the impression that his ex-wife encouraged his daughter to fabricate these allegations against him.

¶ 6. The relevancy and admissibility of evidence rests within the trial judge’s discretion and, absent an abuse of his discretion resulting in prejudice to the defendant, this Court will not reverse his rulings. Shaw v. State, 915 So.2d 442, 445(118) (Miss.2005). The State filed a motion in limine to exclude any testimony regarding the divorce proceedings and subsequent custody battle between McDonald and his ex-wife. In his ruling the trial judge found as follows:

All right. It’s my understanding that the evidence in this case is going to come from police and alleged eyewitnesses to the fact, and because there is going to be some eyewitness testimony, and the mother is not going to testify herself, I feel that obviously her credibility is not in question in this case, so the Court finds that the documents that have been offered for identification are irrelevant to the issues that will be raised in the course of this trial, so I’m going to sustain the motion in limine.

The trial judge also stated that he would allow McDonald to reargue his opposition to the motion in limine if McDonald was able to show the relevance of the evidence as the trial progressed.

¶7. McDonald produced no evidence, other than his assertions, that his ex-wife was involved in the actions leading up to McDonald’s conviction. The ex-wife was not a witness to the incident nor was she involved in bringing charges against McDonald. His daughter testified that she had a close relationship with her mother. However, a close mother-daughter relationship is in no way sufficient evidence to show that either the ex-wife instructed her daughter to inform the authorities of the molestation or the daughter fabricated the charge on her own. We cannot find that the trial judge abused his discretion in refusing to allow this evidence into the record. This issue is without merit.

II. DID THE TRIAL COURT ERR IN FAILING TO GRANT MCDONALD’S MOTION FOR A NEW TRIAL?

¶ 8. In his remaining issue on appeal, McDonald argues that the trial judge should have granted his motion for a new trial because the verdict was against the overwhelming weight of the evidence. Our standard of review concerning the overwhelming weight of the evidence is well settled: “[W]e will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005). The appellate court sits as a hypothetical “thirteenth juror.” Id. As such, the Court weighs the evidence “in the light most favorable to the verdict.” Id. If, in this position, the Court disagrees with the verdict of the jury, “the proper remedy is to grant a new trial.” Id.

¶ 9. McDonald argues that, although he was touching and rubbing his daughter while applying suntan lotion, he was not doing so for the purpose of gratifying his lust as required by the statute. McDonald was found guilty of violating Mississippi Code Annotated Section 97-5-28(2) (Rev. 2006), which states, in pertinent part, as follows:

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

¶ 10. In Friley v. State, 879 So.2d 1031, 1035(¶ 16) (Miss.2004), the supreme court found that by the defendant’s actions “of grabbing [the victim], touching her genital area, and touching himself, he was gratifying his lust. There is absolutely no other reason why Friley would have performed these acts. It is well settled that intent can be inferred from a defendant’s actions.” The victim testified that McDonald inserted his finger into her vagina and rubbed his hands under both her swimsuit top and bottom. Witnesses at the scene saw McDonald place his hands under the victim’s swimsuit and rub her in inappropriate places. The intent to gratify his lust could easily be inferred from McDonald’s actions. We cannot find that the verdict was contrary to the overwhelming weight of the evidence. This issue is without merit.

¶11. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF TWO COUNTS OF GRATIFICATION OF LUST AND SENTENCE OF FIFTEEN YEARS ON EACH COUNT, WITH SENTENCES TO BE SERVED CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The Court of Appeals declines to identify minor victims of sexual crimes.

      . We note that both sets of briefs refer to the victim’s mother by the wrong name. Both parties mistakenly refer to the ex-wife using the name of McDonald’s current wife, who testified on his behalf. Rather than name the victim's mother, we will refer to her as McDonald's ex-wife.


text:
    MISSISSIPPI DEPARTMENT OF CORRECTIONS, Appellant v. James R. TUTTLE, Appellee.
    No. 2006-CC-01485-COA.
    Court of Appeals of Mississippi.
    Oct. 16, 2007.
    Rehearing Denied March 11, 2008.

      Office of the Attorney General by Jane L. Mapp, attorney for appellant.
    James W. Burgoon, Jr., Greenwood, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ISHEE, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On April 20, 2004, James Tuttle was terminated from his position as a correctional vocational education instructor with the Mississippi Department of Corrections (MDOC). Upon being terminated from his position as daytime vocational instructor, he was barred from entering the penitentiary grounds except to go to his residence. As a consequence of being terminated from his day job, Tuttle also lost his night job teaching diesel mechanics because he was barred from the area where the class was taught. Tuttle appealed his termination from the day job to the Mississippi Employee Appeals Board (Board). Following a hearing on December 7, 2004, Tuttle was reinstated to his previous position, “with all back pay and benefits,” subject to set off of any sums received from other sources. MDOC reinstated Tuttle and paid him back the wages lost from his day job as vocational instructor. MDOC refused, however, to pay his back wages from the night job.

¶ 2. On May 24, 2005, Tuttle filed a motion with the Board to enforce the order requiring payment of a portion of back pay plus interest. MDOC responded by arguing that it was not required to pay Tuttle back pay for wages at the night school because he was not technically employed by MDOC but rather by Mississippi Delta Community College (College) because Tuttle was paid by and received a W-2 from the College. However, Tuttle asserts that MDOC reimbursed the College for his salary. A hearing on the motion was held before the Board. The Board found that Tuttle was not entitled to back pay for the night job because a third party paid his wages.

¶ 3. Tuttle appealed the decision of the Board to the Circuit Court of Sunflower County. The circuit court reversed the Board finding that, since MDOC reimbursed the College for the night school job, Tuttle was an MDOC employee and MDOC was required to reimburse him for wages lost from the night job.

¶ 4. MDOC now appeals the decision of the circuit court asserting the following argument: the circuit court erred in reversing the decision of the Board and ordering MDOC to pay Tuttle back pay for third-party employment.

¶ 5. Finding no error, we affirm the decision of the circuit court.

STANDARD OF REVIEW

¶ 6. An agency’s conclusions must remain undisturbed on appeal 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. Miss.Code Ann. § 25-9-132 (Rev.2006); Miss. Empl. Sec. Comm’n v. Danner, 867 So.2d 1050, 1051(¶ 6) (Miss.Ct.App.2004). A rebutta-ble presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise. Danner, 867 So.2d at 1051(¶ 6). Lastly, this Court must not reweigh the facts of the case or insert its judgment for that of the agency. Id.

DISCUSSION

¶ 7. MDOC argues that sufficient evidence existed to support the hearing officer’s finding that Tuttle was not entitled to receive back pay for his part-time night job since his night school wages were paid by a third party.

¶ 8. Although Tuttle’s check was issued by the College, it is undisputed that MDOC provided the funding for the night job. The College and MDOC had an agreement whereby MDOC would send time sheets for the night school instructors to the College and the College would issue their paychecks. The payroll clerk at the College testified that MDOC reimbursed them for all night school instructors’ salaries, insurance, retirement, unemployment compensation, plus a five percent administrative fee. The clerk also testified that Tuttle was not an employee of the College. MDOC argues that, although it reimbursed the College for the salaries, it was not the ultimate source of the funds — that the funds for the reimbursement came from the department of education and the inmate welfare fund. However, a letter sent to the College in March 1999 from MDOC referred to “our staff that teaches in the evening programs.” Another letter sent by MDOC later the same month stated that “our twelve evening program instructors” will be placed on the College’s payroll and the expenses will be reimbursed by MDOC. Based on these facts, we find that Tuttle was an employee of MDOC. We cannot find that substantial evidence existed for the Board to find that Tuttle was not subject to reimbursement from MDOC.

¶ 9. MDOC next argues that awarding Tuttle back pay from the College would amount to damages which the Board has no statutory authority to grant. Having found that Tuttle was employed by MDOC, we find that the Board did have power to order back pay since the source of funds came from MDOC.

¶ 10. MDOC’s final argument is, in the alternative, that it was in the hearing officer’s discretion to deny Tuttle back pay from the night job. Although discretionary, the Board clearly stated that “all” of Tuttle’s back pay would be restored. Since Tuttle lost his night job as a consequence of losing his day job and MDOC was his employer for both, we find that Tuttle was entitled to back pay from the night job as well.

¶ 11. We find that Tuttle is entitled to have all his employee rights and benefits restored, including back pay with interest, medical leave, and personal leave from the loss of his night job.

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

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


author: KING, C.J.,

text:
    Bobby HEIDELBERG, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-01125-COA.
    Court of Appeals of Mississippi.
    Oct. 30, 2007.
    Rehearing Denied March 11, 2008.
    Brenda Jackson Patterson, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, C.J., BARNES and ISHEE, JJ.
   KING, C.J.,

for the Court.

¶ 1. Bobby Heidelberg appeals his conviction of felony driving under the influence (DUI). He alleges that the trial court failed to instruct the jury on the elements of felony DUI. Finding no error, we affirm.

FACTS

¶ 2. Shortly after midnight Heidelberg was traveling down Highway 84 East in the city limits of Laurel, Mississippi. Officer Larry Hayes of the Laurel Police Department was patrolling the area and noticed that Heidelberg had a broken taillight. Officer Hayes decided to conduct a traffic stop to advise him of a traffic violation.

¶3. After Heidelberg was stopped on the side of the road, Officer Hayes approached Heidelberg’s vehicle and asked for his license. Heidelberg informed him that it was suspended. Officer Hayes then requested Heidelberg to exit the vehicle. During this time, Officer Hayes could smell an alcohol odor coming from the vehicle. He also noticed that Heidelberg’s eyes were bloodshot and his speech was slurred. In addition, Heidelberg seemed unsteady on his feet as he exited the vehicle.

¶ 4. After Heidelberg had exited the vehicle, he was offered a portable breath test which he took. Upon seeing the results, Officer Hayes determined that Heidelberg should be taken into custody and then take the Intoxilyzer 5000 test at the police station for a more accurate reading of Heidelberg’s blood-alcohol content. Once at the police station, Heidelberg refused to take the Intoxilyzer 5000 test.

¶ 5. Heidelberg was indicted for felony DUI on July 8, 2003. He had previously been convicted of DUI first offense and DUI second offense, the offenses occurring within five years of this incident.

¶ 6. Following a one-day jury trial, Heidelberg was convicted of felony DUI and was sentenced to three years in the custody of the Mississippi Department of Corrections. Aggrieved, Heidelberg appealed to the supreme court and it was deflected here for our review.

ANALYSIS

Whether the jury was informed of all of the elements of felony DUI

¶ 7. Heidelberg alleges that the trial court committed reversible error by failing to instruct the jury on the elements of felony DUI. Prior to addressing the merits of Heidelberg’s argument, we must determine whether the argument is procedurally barred as the State suggests.

¶ 8. Heidelberg’s counsel did not object to any of the instructions offered by the State. Normally, failure to object to a jury instruction serves as a procedural bar to appellate review. Berry v. State, 728 So.2d 568, 571(¶ 6) (Miss.1999). However, the procedural bar is lifted in the event that the instruction constitutes plain error. Id. To rise to the level of plain error, a fundamental right of the defendant must have been violated. Id.

¶ 9. The supreme court has held that “[f]ailure to submit to the jury the essential elements of the crime is ‘fundamental’ error.” Hunter v. State, 684 So.2d 625, 636 (Miss.1996). In addition, the prosecution, not the defendant, bears the burden of instructing the jury on all the essential elements of the crime charged. Pollard v. State, 932 So.2d 82, 87(¶ 11) (Miss.Ct.App.2006). Therefore, we find the procedural bar inapplicable and turn to the merits of the argument to determine if the jury was instructed as to the essential elements of felony DUI.

¶ 10. Specifically, Heidelberg alleges that the jury was not instructed that the alcohol intoxication “impaired his ability to operate said vehicle.” Heidelberg cites to Mississippi Code Annotated Section 63-11-30(1) (Rev.2004) for support. While the phrase “impaired his ability to operate a motor vehicle” is an element of a crime listed under Section 63-11-30(1), it is not an element of the specific subpart of the code section under which Heidelberg was tried and convicted. The relevant portion of Section 63-11-30(1) states:

(1) It is unlawful for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor; (b) is under the influence of any other substance which has impaired such person’s ability to operate a motor vehicle; (c) has an alcohol concentration of eight one-hundreths percent (.08%) or more ...; is under the influence of any drug or controlled substance, the possession of which is unlawful under the Mississippi Controlled Substances Law; or (e) has an alcohol concentration of four one-hundredths percent (.04%) or more in the person’s blood, based upon grams of alcohol per one hundred (100) milliliters of blood or grams of alcohol per two hundred ten (210) liters of breath as shown by a chemical analysis or such person’s blood, breath or urine, administered as authorized by this chapter for persons operating a commercial motor vehicle,

(emphasis added). Therefore, a person can be convicted of a violation of Section 63-11-30(1) if he (a) drives under the influence of intoxicating liquor; (b) drives under the influence of another substance that impaired his ability to drive; or (c) drives with an alcohol concentration of .08% or higher. These are not different elements of DOT, they are merely different ways one may be found in violation of Section 63-11-30(1).

¶ 11. Here, the jury was instructed that in order to find Heidelberg guilty of felony DOT, it had to find that: (1) Heidelberg was driving or operating a motor vehicle, (2) at the time he was driving or operating the vehicle, he was under the influence of intoxicating liquor, and (3) he had been previously convicted of driving under the influence on at least two other occasions within the previous five years. Therefore, the jury was instructed as to a violation of Section 63-11-30(1).

¶ 12. This Court addressed an analogous situation in Christian v. State, 859 So.2d 1068 (Miss.Ct.App.2003). The case involved the prosecution of a first offense DUI offender under Section 63-11-30(1). On appeal, Christian challenged whether the evidence presented at trial was sufficient to sustain his conviction. Christian, 859 So.2d at 1072(¶ 15). Specifically, he alleged that the State failed to present any evidence as to impairment of his driving ability. Id. This Court held that while the State did present evidence of impaired driving ability, it only needed to offer “proof of his driving under the influence of intoxicating liquor.” Id. at 1073(¶ 19). The statute distinguishes driving while under the influence of intoxicating liquor from “driving while under the influence of another substance that impairs driving ability.” Id.

¶ 13. The supreme court has held that the elements required to prove one is in violation of Section 63-11-30(1) are: (1) that a defendant was operating a motor vehicle, and (2) that the defendant was under the influence of intoxicating liquor. McLendon v. State, 945 So.2d 372, 385(¶ 37) (Miss.2006). These are the exact elements on which the jury in our case was instructed.

¶ 14. Therefore, there was no fundamental error since the jury was instructed as to all of the essential elements of the crime of felony DUI. Hunter, 684 So.2d at 636. Finding that Heidelberg’s sole allegation of error contains no merit, we affirm the conviction of felony DUI.

¶ 15. THE JUDGMENT OF THE JONES COUNTY CIRCUIT COURT OF CONVICTION OF FELONY DRIVING UNDER THE INFLUENCE AND SENTENCE OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.

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


text:
    Samuel Heath IVY, Appellant v. CITY OF LOUISVILLE, Appellee.
    No. 2007-KM-00077-COA.
    Court of Appeals of Mississippi.
    March 11, 2008.
    Stephanie L. Mallette, attorney for appellant.
    Taylor Tucker, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Samuel Ivy was convicted in the City of Louisville Municipal Court of driving under the influence of intoxicating liquor. Ivy appealed his conviction to the Circuit Court of Winston County. After a bench trial, the circuit court found Ivy guilty of driving under the influence of intoxicating liquor. On appeal, Ivy argues that the circuit court should have granted a new trial in his case because the verdict was against the overwhelming weight of the evidence. We And no error and affirm.

PACTS

¶2. On April 29, 2006, Officer Jimmy Lovern of the City of Louisville Police Department was answering a call from a stranded motorist. After Officer Lovern had picked up the stranded motorist, a car, traveling in the opposite direction, passed Officer Lovern moving well in excess of the posted speed limit. Officer Lovern turned his patrol car around and followed the speeding car. Officer Lovern testified that the driver weaved the car between the lanes of traffic.

¶ 3. Officer Lovern testified that after he pulled the car over, he smelled alcohol when he approached the driver’s side window. Officer Lovern stated that the driver of the car, Ivy, had trouble finding his driver’s license, and he also exhibited slurred speech. Ivy admitted to Officer Lovern that he had been drinking that evening.

¶ 4. Shortly after Officer Lovern pulled Ivy over, Officer Keith Alexander arrived to assist. Officer Alexander testified that he too smelled alcohol when he approached the vehicle. Officer Alexander also testified that Ivy exhibited slurred speech, diminished motor skills, and dilated pupils. Neither Officer Lovern nor Officer Alexander gave Ivy a field sobriety test because they were not certified to administer such tests. Officer Alexander asked Ivy to blow into a portable breath analysis machine (“Breathalyzer”). Ivy complied. Officer Alexander testified that the Breathalyzer showed that Ivy was well above the legal limit. Officer Alexander told Ivy that he was under arrest and ordered him to get out of the car. Both Officer Lovern and Officer Alexander testified that Ivy stumbled getting out of the car, and Officer Alexander had to carry Ivy to the patrol car.

¶ 5. Officer Lovern took Ivy to the Winston County Correctional Facility where he informed Ivy that he had the right to refuse to breathe into the intoxilyzer. However, Officer Lovern also told Ivy that the intoxilyzer was broken. Therefore, Officer Lovern did not charge Ivy with refusal to take an intoxilyzer test. Ivy complains that Officer Lovern also did not then tell him that he had the right to have a blood test.

¶ 6. Ivy was the only witness to testify for the defense. He testified that before Officer Lovern pulled him over, he and a friend had been to the Pearl River Resort in Choctaw, Mississippi. He testified that he had four beers, from 8:00 p.m. to 12:00 a.m., and that he ate breakfast and drank water before he drove home around 1:00 a.m. Ivy testified that he was not intoxicated while he was driving to Starkville. Ivy also testified that he did not slur his speech when he answered the officers’ questions, and he did not stumble when Officer Alexander pulled him from the car to handcuff him. Ivy maintained that he was sober when the officers arrested him.

STANDARD OF REVIEW

¶ 7. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005). The evidence is weighed in the light most favorable to the verdict. Id. The power to grant a new trial should be invoked only in exceptional cases where the evidence preponderates heavily against the verdict. Id. If the verdict is against the overwhelming weight of the evidence, the proper remedy is to grant a new trial. Id.

ANALYSIS

¶ 8. Ivy was charged with driving under the influence of intoxicating liquor. Mississippi Code Annotated section 63 — 11— 30(1) (Rev.2004) states in pertinent part:

It is unlawful for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor; (b) is under the influence of any other substance which has impaired such person’s ability to operate a motor vehicle; (c) has an alcohol concentration of eight one-hundredths percent (.08 %) or more for persons who are above the legal age to purchase alcoholic beverages under state law....

¶ 9. Both officers testified that Ivy appeared to have been driving while intoxicated on the night in question. In fact, Ivy testified that he had been drinking that night. However, Ivy testified that he was sober when he drove from Choctaw through Louisville that night.

¶ 10. Ivy argues that the “direct conflict between his testimony and the officers’ testimony [means] the evidence was not sufficient to prove that [he] was impaired within the meaning of state law especially given the acute absence of any objective measure of his blood alcohol concentration.” Ivy’s argument is flawed. Section 63-11-30(1) distinguishes between driving under the influence and driving with “an alcohol concentration of eight one-hundredths percent (.08%) or more for persons who are above the legal age.... ” Miss.Code Ann. § 63-ll-30(l)(c) (Rev. 2004). Thus, a defendant can be charged and convicted for driving under the influence by the testimony of a witness, who observed the defendant exhibiting signs of intoxication, or by the results of an intoxi-lyzer test.

¶ 11. The circuit judge, sitting as the finder of fact, had the testimony of two police officers that Ivy appeared intoxicated because he had diminished motor skills, slurred speech, dilated eyes, and his car smelled of alcohol. Officer Lovern also testified that Ivy was speeding and driving erratically before he pulled Ivy over. The circuit judge also had Ivy’s testimony that he was sober. The circuit judge was, therefore, presented with conflicting testimony.

¶ 12. Bearing in mind our standard of review, we must weigh the evidence in the light most favorable to the verdict. Thus, we find that the circuit court’s determination was not against the overwhelming weight of the evidence, and we find no error.

¶ 13. Although not listed as a separate issue, Ivy also argues that the officers should have informed him that he had the right to obtain his own blood test in support of his defense under Mississippi Code Annotated section 63-11-13 (Rev. 2004). This, however, is not the law in Mississippi. See Green v. State, 710 So.2d 862, 868-69(¶ 21) (Miss.1998) (law enforcement officers do not have to inform defendants of their right to have an independent blood test under section 63-11-13). Therefore, we also find no merit with this issue.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF WINSTON COUNTY OF CONVICTION OF DUI-FIRST OFFENSE AND FINES OF $471.30 AND ASSESSMENT OF $230 ARE AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLANT.

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