author: BARNES, J.,

text:
    David Antonio GRAYER, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01728-COA.
    Court of Appeals of Mississippi.
    Jan. 31, 2006.
    Rehearing Denied May 16, 2006.

      Robert Charles Stewart, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   BARNES, J.,

for the Court.

¶ 1. David Antonio Grayer was convicted of burglary of a dwelling by a Harrison County jury. He was sentenced as a habitual offender to twenty-five years in the custody of the Mississippi Department of Corrections. Grayer perfected this appeal following the denial of his post-trial motions for new trial and reconsideration of sentence. Grayer alleges that the trial court erred in the following particulars: (1) the denial of his pre-trial motion to suppress the identification evidence as unduly prejudicial; (2) the refusal to grant his identity jury instruction; and (3) in granting the State’s motion to amend the indictment. Finding no reversible error, this Court affirms his conviction and sentence.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Alfred Mack Demás returned home in the early morning hours of April 4, 2003, to find a broken window in the front portion of his Gulfport home. Demás testified that he noticed the broken window even before he entered his driveway. When he entered the driveway he saw an individual in the process of leaving the back yard of the home. Demás testified that he opened the door to his vehicle and yelled to the individual to stop; however, the individual ran into a nearby alleyway. Demás testified that he then pursued the individual in his car.

¶ 3. When Demás next caught sight of the individual, the individual was riding a bicycle. Demás testified that his automobile’s high-beam headlights were illuminated while he followed the suspect, and that he was able to get a good look at the side of the man’s face as he looked back several times to see how closely he was being followed. Demás also testified that upon arriving at his home, he was able to get a good look at the individual’s face with the aid of illumination from his home’s floodlights and his automobile’s headlights. The fleeing individual was able to elude Demás by going between two houses. While in pursuit of the suspect, Demás placed a 911 call for assistance on his cellular telephone and offered this testimony regarding the contents of the call: “When I called on the cell phone, I told them my house had been broken into and it was a n. on a bike with a black jogging suit. The exact words that I said.”

¶ 4. After losing sight of the suspect, Demás returned home where he was met by Fred Gaston of the Gulfport Police Department, who had responded to the 911 call. Gaston testified that one of the first things he noticed was that the glass was broken out of the front window of the home. Inside the house, items such as televisions and VCRs were stacked in a room at the very back of the house next to the open back door. Numerous other items had been removed from the house and placed in the back yard. The interior of the house had been ransacked and a number of old coins and several watches were missing. Gaston testified that while he was still conducting his investigation of the crime scene he received a dispatch notification over his radio that another officer had made contact with a suspect matching the description that Demás had given.

¶ 5. Wayne H. Payne II of the Gulfport Police Department testified that on the morning in question he was on K9 patrol when he received the call about a burglary in process with the victim chasing the suspect, who was described as a black male wearing dark gray or black clothing. The call also reported that some' coins and watches were missing from the crime scene. Payne testified that he drove to the area and rode around looking for anyone who fit the description. Two blocks from the crime scene he saw a black male on foot who fit the description. Payne testified that the call about the burglary had come in at 1:56 a.m. and that it was approximately 2:10 a.m. when he saw this individual. Payne testified that he exited his patrol car and spoke with the individual, who appeared highly intoxicated and identified himself as David Grayer. Grayer had several watches in his hands and coins in his pocket. Payne testified that he asked Gaston to have Demas come to the location for a positive identification. Payne’s testimony regarding what transpired upon Demas’s arrival at the location was as follows:

We were standing next to my patrol vehicle. The victim drives up, exited his vehicle. He walked up. He says, “[Y]eah, that’s the guy broke into my house.” The victim was pretty angry. He begins yelling. We get them separated again. As the victim is walking away, Mr. Grayer says, “I’m sorry,” and some more yelling goes on, and then, “I was wrong for what I did.”

¶ 6. Demás testified that he was allowed to examine a brown bag containing the items that were taken from Grayer at the scene, and that one of the items was a retirement pin that Demás had received upon his retirement from a local bank. Additionally, Demás identified all of the other items from the bag as his personal belongings. Grayer rested without putting on a defense.

ANALYSIS

1. Motion to suppress the eyewitness . identification

¶ 7. Grayer contends that the show-up identification was suggestive and that the lower court erred in refusing to grant his motion to suppress the identification testimony at trial. In support of his contention, Grayer directs this Court’s attention to the landmark United States Supreme Court case of Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Biggers holds that the following factors are to be considered in determining whether, under the totality of circumstances, a show-up identification was reliable even though the confrontation procedure was suggestive: (1) the opportunity of the witness to view the accused at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Biggers, 409 U.S. at 199— 200, 93 S.Ct. 375; Nicholson v. State, 523 So.2d 68, 72 (Miss.1988).

¶ 8. In his analysis of the Biggers factors, Grayer argues that the show-up identification was unreliable under the totality of the circumstances in that: (1) Demás only saw the face of the perpetrator for between two and five seconds; (2) Demás was a sixty-seven-year-old man who had not had his eyesight checked in twenty years, who viewed the perpetrator from inside his vehicle from ten to fifteen yards away, after having a few cocktails; (3) the prior description provided by Demás only made a pejorative reference to the perpetrator’s race and gave a vague description of his clothing; and (4) no doubt was expressed as to the certainty of the identification; and (5) the length of time between the crime and confrontation was approximately fourteen minutes. Grayer sums up his argument by contending that since De-mas was unable to describe anything other than the race and attire of the perpetrator, the show-up identification was unduly suggestive and the lower court erred in not suppressing it.

¶ 9. The trial court found that the show-up identification was suggestive only in that Grayer was the only individual present for viewing at the time. Otherwise, the court found that the totality of the circumstances surrounding the identification rendered the identification rehable.

¶ 10. The Mississippi Supreme Court held in Magee v. State, 542 So.2d 228, 231 (Miss.1989), that the standard of review for suppression hearing findings in pretrial identification cases is whether, considering the totality of the circumstances, substantial credible evidence supports the trial court’s findings. Only in the absence of substantial credible evidence supporting the findings can those findings be disturbed. Id. This Court finds that there is substantial credible evidence supporting the trial court’s findings. Grayer’s contentions notwithstanding, all of the Biggers factors favor the reliability of the identification. It is clear from the record that the trial court considered those factors in making its determination not to suppress the identification testimony, and that the court’s findings are backed by substantial credible evidence. This Court finds no reversible error on this issue.

2. Refused jury instruction

¶ 11. Grayer contends that the trial court’s refusal to grant his identification instruction constitutes reversible error because his identification rests on the basis of a single witness. His arguments in support of this contention, based upon Warren v. State, 709 So.2d 415 (Miss.1998), and Davis v. State, 568 So.2d 277 (Miss. 1990), are identical to those made in Francis v. State, 791 So.2d 904 (Miss.Ct.App.2001), a case previously decided by this Court. In that case this Court held as follows:

Francis argues that, because there was only one witness to the robbery, the trial court erred in refusing to grant an identification jury instruction. The standard applicable for reviewing jury instructions is as follows:
In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. Coleman v. State, 697 So.2d 777, 782 (Miss.1997) (citing Collins v. State, 691 So.2d 918 (Miss.1997)). Applying this standard of review to this case, we find the circuit court acted properly in its decision.
Francis, citing Davis v. State, 568 So.2d 277 (Miss.1990), and Warren [v. State, 709 So.2d 415 (Miss.1998) ], reasons that it was error not to grant him an identification instruction. In Davis, the trial judge struck a portion of the identification instruction requested by Davis. Davis, 568 So.2d at 280. On appeal, the Mississippi Supreme Court held that, although the stricken portion of the instruction accurately stated the law and could have been granted, the failure to grant the entire instruction was harmless error because the deleted portion simply clarified that portion that was granted, and Davis’s guilt was proven “beyond a reasonable doubt by the overwhelming weight of [the] evidence.” Id. at 280-281.
In Warren, the trial court refused to allow identification instructions. On appeal, the Mississippi Supreme Court held that the trial court’s failure to instruct the jury on the law of identification was reversible error because the case turned on the identification of Warren by a single witness. Warren, 709 So.2d at 421(¶ 28). Here, the distinction is that the identification did not rest solely on the testimony of Wilkes. Francis also disclosed to Lt. Walker where he had hidden the gun used to commit the robbery and led the police to that location. The trial court committed no error in failing to give an identification instruction.

Francis, 791 So.2d at 908 (¶¶ 10-12). This Court finds the same distinction applicable to the case at bar as the Francis court found applicable to that case, i.e., Grayer’s identification did not rest solely on the testimony of a single witness. Grayer was in possession of property stolen from the crime scene and apologized to the victim for his actions. As in Francis, the trial court committed no error in refusing to give the identification instruction.

3. Motion to amend the indictment

¶ 12. Grayer argues that it was error for the trial court to grant the State’s motion to amend the original indictment, which stated that the burglary took place on or about March 4, 2003. He contends that his defense counsel was prepared to defend based on that charging instrument. He claims that his counsel was “clearly” surprised by the motion to amend the indictment on the day of trial to charge that the burglary occurred on April 4, 2003. He argues that at the very least the trial court should have granted a continuance to give him an opportunity to prepare a different defense.

¶ 13. The argument on the motion to amend the indictment proceeded as follows:

STATE: Your Honor, the State does have its motion to amend the indictment.
COURT: It will be sustained, to change the date of the occurrence. There being no indication that there’s an alibi issue for the change of date or for the date of March 4th. So therefore it will be sustained. You’ll be allowed to amend.
DEFENSE: Judge, can I put something on the record.
COURT: Sure you can.
DEFENSE: Judge, we object to them amending the indictment at this time, the day of trial. Judge, not only is the indictment wrong, but the narrative is wrong also, Your Honor. We’ve ... prepared for trial based on the narrative and the indictment.
COURT: The narrative in the indictment?
DEFENSE: No, no, sir. I’m sorry. The discovery that I have, the detective investigative report has that this crime occurred on March 4, '03.
COURT: That’s what the indictment says.
DEFENSE: That is correct, Your Hon- or.
COURT: And the officer testified April 4, didn’t he?
DEFENSE: Yes, sir.
STATE: Your Honor, that was the detective’s narrative, and I think the detective had made a mistake, but if you look on all the officer’s reports, the date is listed April 4th. And in the underlying circumstances and facts it’s listed as April 4th, and the defendant was arrested April 4th.
COURT: Well, certainly the detective’s inappropriate notation or inaccurate notation of March 4th would be subject to cross-examination and whatever you can do as far as attacking the credibility of his testimony, that can be used if he had the wrong date on there, but the others — the amendment will be allowed as to amending the indictment to show that the true date was April 4th.
DEFENSE: Well, Judge, my client pled not guilty to this charge, and he was given his charging instrument which was the indictment.
COURT: Yes, sir.
DEFENSE: We looked at the indictment and said we’re not guilty of that. We didn’t break into anybody’s house on March the 4th. We looked at the narrative. That has March 4th on it, and on the day of trial, the [Sjtate’s going to come in here and say, oh, oh, it happened on April 4th. We’re sorry about that. Judge, I think we should be given an opportunity to at least prepare to defend on a different date now.
COURT: All right. You have your record. Anything else?
DEFENSE: Nothing else, Your Honor.

¶ 14. In Conley v. State, 790 So.2d 773, 781(¶ 16) (Miss.2001), the Mississippi Supreme Court held that the question of whether an indictment is fatally defective is an issue of law and enjoys a relatively broad standard of review. Trial courts have no authority to grant substantive amendments to indictments. Baine v. State, 604 So.2d 258, 260 (Miss.1992). An amendment to change the date on which the offense occurred is one of form only, unless time is an essential element or factor in the crime. Id. at 261. Grayer makes no claim that time is an essential element or factor in the crime with which he is charged. Knowing full well that the crime occurred on April 4, 2003, Grayer gambled that he could come into court on the day of his trial and offer up a defense that he did not commit the crime on March 4, 2003, and that at the very least, he would be granted a continuance. This Court finds that the amendment to the indictment changing the date of the crime was one of form only.

¶ 15. • THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF TWENTY-FIVE YEARS, AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


source: Caselaw Access Project

author: LEE, P.J.,

license: Public Domain

text:
    James Emory GARNER, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-CP-00468-COA.
    Court of Appeals of Mississippi.
    Feb. 14, 2006.
    Certiorari Denied May 11, 2006.

      James Emory Garner, Appellant, pro se.

      Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

LEE, P.J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. The appellant’s motion for rehearing is denied. The original opinion is withdrawn and this opinion is substituted therefor.

¶2. In November 2001, James Garner pled guilty in the Monroe County Circuit Court to two counts of armed robbery. Count one originated in Monroe County, while count two originated in Lee County. Garner was sentenced to serve a term of twenty years on each count in the custody of the Mississippi Department of Corrections, to run concurrently with two previous, unrelated convictions. Garner filed a motion for post-conviction relief on June 24, 2003, which was dismissed by the trial court. Garner now appeals pro se to this Court, arguing: (1) that his guilty plea was involuntarily given; (2) he received ineffective assistance of counsel; and (3) the indictment charging him with armed robbery was fatally defective.

¶ 3. Finding that a hearing is necessary regarding Garner’s reliance on incorrect information provided at his guilty plea, we reverse the judgment of the trial court and remand this case for a hearing on this issue.

STANDARD OF REVIEW

¶ 4. “When reviewing a lower court’s decision to deny a petition for post-conviction relief this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where applicable questions of law are raised, the applicable standard is de novo.” Sykes v. State, 895 So.2d 191, 197 (¶24) (Miss.Ct.App.2005). Regarding ineffective assistance of counsel claims, we look to Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.” Id.

DISCUSSION

I. WAS GARNER’S GUILTY PLEA VOLUNTARILY MADE?

¶ 5. As a preliminary matter we note that Mississippi Code Annotated Section 99-39-9(2) (Supp.2005) provides that a motion for post-conviction relief shall be limited to a request for relief against one judgment. Additionally, “[i]f a prisoner desires to attack the validity of other judgments under which he is in custody, he shall do so by separate motions.” Id. Accordingly, should Garner desire to collaterally attack his guilty plea in count two, he must file a motion for post-conviction relief regarding that judgment. As noted by an order of this Court on November 2, 2004, no motion for post-conviction relief was filed in the Lee County Circuit Court. Accordingly, this opinion is restricted to the denial of post-conviction relief for count one in Monroe County.

¶ 6. In his first assertion of error, Garner argues that his guilty plea should be vacated because he was not advised of the minimum sentence for his crime and he was improperly advised about his eligibility for parole. Garner argues that had he been aware that the minimum sentence for armed robbery was three years, he would not have pled guilty.

¶ 7. A plea is considered voluntary if the defendant knows what the elements are of the charge against him including an understanding of the charge and its relation to him, what effect the plea will have, and what the possible sentence might be because of his plea. Wilson v. State, 577 So.2d 394, 397 (Miss.1991). Automatic invalidation of a guilty plea where the defendant was not informed of the minimum penalty is no longer the rule in Mississippi. Ashby v. State, 695 So.2d 589, 591 (Miss.1997). For us to reverse on this issue, Garner must show that he was misled, that the case was misrepresented to him, or that he expected to receive a lesser sentence. Id. at 593.

¶ 8. Nothing in the record indicates that any of these scenarios applies. While we are not privy to Garner’s conversations with counsel prior to his guilty plea, the record indicates that Garner clearly understood the State would recommend a sentence of twenty years and the trial judge could sentence him to a term “reasonably less than life.” We agree with the trial court that any error committed in failing to advise Garner of the minimum sentence was harmless.

¶ 9. Garner’s contention that the trial court erroneously informed him regarding parole is more problematic. After informing Garner that the State recommended a sentence of twenty years on each count, the trial judge asked Garner, “Do you also understand that you won’t be eligible for any release, due to the fact that this involved the use of a deadly weapon, for at least the first ten years of this sentence?” To this Garner responded in the affirmative.

¶ 10. A person convicted of armed robbery through the display of a firearm on or after January 1, 1977, who is sentenced to more than ten years must serve at least ten years prior to being eligible for parole. Mississippi Code Annotated Section 47-7-3(d)(i)(Rev.2004). This provision does not apply to persons convicted on or after September 30, 1994. Id. Because Garner pled guilty in 2001, the ten year requirement for parole is inapplicable, and we look to Mississippi Code Annotated Section 47 — 7—3—(d)(ii), which prohibits parole for persons convicted of armed robbery through the display of a deadly weapon on or after October 1, 1994. While it is unclear what advice counsel gave to Garner, it is clear from the record that the information provided by the trial judge regarding parole was incorrect.

¶ 11. In Fairley v. State, 834 So.2d 704 (Miss.2003), the defendant pled guilty to armed robbery but sought post-conviction relief because he was misinformed about his eligibility for parole. Our supreme court found that the defendant was entitled to an evidentiary hearing to determine whether he relied on erroneous information in making his plea. The court found that “failure to mention something concerning parole eligibility may be no problem, but erroneous information concerning parole and sentencing at least entitles the petitioner to an evidentiary hearing on whether he relied on the erroneous information.” Id. at 707 (¶ 8).

¶ 12. In the case sub judice, the trial court accepted briefs on this issue, but there is no indication in the record that the court held a hearing. While the failure to inform the defendant of the minimum sentence was harmless error, we find that the defendant is entitled to a hearing to determine whether he relied on improper information regarding his eligibility for parole.

II. WAS GARNER’S TRIAL COUNSEL INEFFECTIVE?

¶ 13. “A claim of ineffective assistance of counsel, in order to entitle the defendant to relief, requires both a showing of deficient performance and a showing that, but for the deficient performance, a different result would likely have resulted.” Donnelly v. State, 841 So.2d 207, 211 (¶ 8) (Miss.Ct.App.2003).

¶ 14. Garner does not contest his guilt, but he does argue that his attorney erroneously advised him regarding his eligibility for parole. Any advice by counsel that Garner would be eligible for parole was incorrect and constitutes deficient performance. Thomas v. State, 881 So.2d 912, 916 (¶ 16) (Miss.Ct.App.2004). Having shown deficient performance, Garner must prove that he would not have pled guilty but for the incorrect advice. Harris v. State, 806 So.2d 1127, 1131 (¶ 11) (Miss.2002). In his motion Garner states that he would not have pled guilty but for the erroneous advice. If his attorney improperly advised him of his eligibility for parole, Garner is entitled to a hearing to investigate his claim that he would not have pled guilty but for the incorrect advice. Thomas, 881 So.2d at 916 (¶ 16). We find that this issue has merit, and Garner is entitled to an evidentiary hearing to review this issue.

III. WAS THE INDICTMENT FOR ARMED ROBBERY FATALLY DEFECTIVE?

¶ 15. Garner also contends that the facts of the case do not support the indictment, since the State failed to allege essential elements regarding the weapon used during the crime. Garner argues that the indictment improperly characterizes his weapon as a deadly weapon, because in one robbery he represented to his victim that his finger was a gun.

¶ 16. If an indictment reasonably provides the accused with actual notice and it complies with Rule 7.06 of the Uniform Circuit and County Court Rules, it is sufficient to charge the defendant with the crime. Turner v. State, 864 So.2d 288, 293 (¶ 22) (Miss.Ct.App.2003). There is no question that Garner received actual notice of the crime with which he was being charged. This issue is without merit.

¶ 17. We reverse the decision of the trial court for an evidentiary hearing on (1) whether Garner’s plea was involuntary due to erroneous information regarding eligibility for parole and (2) whether he received ineffective assistance of counsel due to erroneous advice about his parole eligibility.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF MONROE COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS REVERSED AND REMANDED FOR A HEARING. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MONROE COUNTY.

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


author: CHANDLER, J.,

text:
    Dianna E. ZINN, Appellant v. CITY OF OCEAN SPRINGS, Mississippi, Kerry Belk, Roy Eugene Yates, John T. LaCroix and XYZ, Appellee.
    No. 2005-CA-00347-COA.
    Court of Appeals of Mississippi.
    April 25, 2006.

      Kelly McKoin, attorney for appellant.
    Matthew Stephen Lott, Robert W. Wilkinson, Pascagoula, attorneys for appel-lees.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. The City of Ocean Springs seized approximately seventy three cats from the premises of Dianna Zinn after a complaint was lodged with the City regarding mistreated animals and an inspection was conducted. Zinn brought suit against the City of Ocean Springs, Kerry Belk, Roy Yates, Dr. John LaCroix, and others in the circuit court of Jackson County claiming excessive force, a violation of her Sixth Amendment right to confront accusing witnesses and a violation of her civil rights under 42 U.S.C. section 1983. The trial court dismissed the state law claims under Rule 41(b) of the Mississippi Rules of Civil Procedure and gave a directed verdict for the defendants on the section 1983 claims. Zinn appeals claiming the following:

I. WHETHER THE ORDER OF THE COURT WAS DRAWN BY COUNSEL OPPOSITE AND IS INAPPROPRIATE UNDER CANON 3(B)(5) OF THE CODE OF JUDICIAL CONDUCT

II. WHETHER THE SEARCH WARRANT IS VALID

III. WHETHER THE LOWER COURT ERRED IN ALLOWING THE ZINN’S SIXTH AMENDMENT RIGHTS TO BE VIOLATED

IV. WHETHER THE TRIAL COURT ERRED IN DISMISSING THE CLAIMS OF ZINN UNDER 42 U.S.C. SECTION 1983

V. WHETHER THE DIRECTED VERDICT IS SUPPORTED BY THE LACK OF EVIDENCE

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Elizabeth Pinkerton purchased two cats from Zinn. These cats were later found by Pinkerton’s veterinarian to be afflicted with fleas, ringworms, respiratory infection, and Giardia, a parasite harmful to humans and animals. Pinkerton’s daughter eventually became ill as a result of the diseased eats. The veterinarian told Pinkerton to contact the health department or the police department to prevent the spread of disease. Thereafter, Pinkerton filed a complaint of mistreated and diseased animals with the City of Ocean Springs.

¶ 4. On April 6,1999, after the complaint was filed, Animal Control Officer Roy Yates inspected the home of Zinn, with her permission. Officer Yates found Zinn’s home to be unsuitable for cats or humans. He found the cats to be malnourished, with tails missing, open wounds and diarrhea. However, Officer Yates’ primary concern was the possibility of a serious public health issue.

¶ 5. On April 15, 1999, a search warrant was issued pursuant to Officer Yates’ inspection. That same day, Officer Yates ánd Chief Kerry Belk, the captain of the city police department, lead the search of Zinn’s home. They were accompanied by John LaCroix, a veterinarian hired by the City, arid other officials. The search revealed feces on the floor and furniture, old and uncleaned litter boxes with flies, and diseased cats and kittens living in every corner of the home. The search also revealed litter being dumped in a public ditch near the home. The city officials seized approximately seventy three cats and kittens. After the seizure, Dr. La-Croix inspected.the kittens and found that the cats had several problems, which included chronic upper respiratory tract infection, diarrhea, flea bite dermatitis, ringworm, ear hematomas, scratches, corneal scars and abrasions. Approximately twenty percent of the cats had the parasite Giardia and only fifty percent of the cats were found to be adoptable.

¶ 6. On June 23, 2000, Zinn filed a complaint against the City of Ocean Springs, Chief Belk, Yates and Dr. LaCroix. Zinn brought a claim under state law alleging excessive force. Zinn -also brought a claim alleging a violation of her Sixth Amendment right to confront accusing witnesses and a violation of her civil rights under 42 U.S.C. section 1983. Zinn, never propounded discovery upon the City and Zinn never took any depositions.

¶ 7. On January 18, 2005, the case went to trial and Zinn called five witnesses, including herself. Zinn also called Dr. Andy Oberneufemann and his sister, Nancy Oberneufemann, who testified that Zinn took good care of her cats and home. Zinn called Micheál Faggart to testify as a witness to the search and she called Officer Yates, the City’s animal warden, to testify as an adverse witness. At the close of Zinn’s case, the trial court granted a Rule 41(b) dismissal on the state law claims and a directed verdict on the section 1983 claims both in favor of the City, Belk, Officer Yates and Dr. LaCroix.

STANDARD OF REVIEW

¶ 8. When a judge considers a motion to dismiss under Rule 41(b) of the Mississippi Rules of Civil Procedure, the judge must consider the evidence fairly and not in the light most favorable to the plaintiff and dismiss the case if the judge would find for the defendant. Century 21 Deep S. Properties, Ltd. v. Corson, 612 So.2d 359, 369 (Miss.1992). If the court would find for Zinn if Zinn’s evidence were all the evidence offered in the case, the court must.deny the motion to dismiss. Id. “This Court applies the substantial evidence/manifest error standards to an appeal of a.grant or denial of a motion to dismiss pursuant to M.R.C.P. 41(b).” Id. Therefore, this Court “may only reverse if it finds the trial court abused its discretion.” Wallace v. Jones, 572 So.2d 371, 375 (Miss.1990).

¶9. The standard of review regarding the directed verdict for the section 1983 claim is different than that applicable to a motion to dismiss granted under Rule 41(b). Corson, 612 So.2d at 369. “The essence of a motion for directed verdict is that there is no genuine issue of material fact and that the moving party is entitled to a judgment on the law applicable to the established facts.” Love v. King, 784 F.2d 708, 710 (5th Cir.1986). A court must consider all of the evidence on a motion for directed verdict, not just the evidence supporting the non-movant’s case, with all the reasonable inferences most favorable to the non-moving party. Id. The motion should be granted if the facts point so strongly in favor of one party that reasonable minds could not arrive at a contrary conclusion. Id. “A mere scintilla of evidence is insufficient to present a question for the jury.” Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969).

ANALYSIS

I. WHETHER THE ORDER OF THE COURT WAS DRAWN BY COUNSEL OPPOSITE AND IS INAPPROPRIATE UNDER CANON 3(B)(5) OF THE CODE OF JUDICIAL CONDUCT

¶ 10. Canon 3(B)(5) of the Code of Judicial Conduct states in part:

[a] judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, gender, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not permit staff, court officials and others subject to the judge’s discretion and control to do so.

Zinn claims that the trial court allowed counsel opposite to write the opinion of the trial in violation of Canon 3(B)(5) and, therefore, the judgment before this Court is not an accurate account of the trial court’s ruling. Although Zinn states the trial court violated the Code of Judicial Conduct as an issue, Zinn does not further discuss, or even mention, Canon 3 of the Code of Judicial Conduct in her brief nor does Zinn cite to any relevant case law to demonstrate an instance in which the court performed its duty with bias or prejudice. Rule 28 of the Mississippi Rules of Appellate Procedure states that an appellant’s argument “shall contain the contentions of appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied upon.” M.R.A.P. 28(a)(l)(6). “This Court is not required to address any issue that is not supported by reasons and authority.” Jacobs v. Jacobs, 918 So.2d 795, 797(7) (Miss.Ct.App.2005) (citing Varvaris v. Perreault, 813 So.2d 750, 753(6) (Miss.Ct.App.2001)). Therefore, this issue is procedurally barred.

II. WHETHER THE SEARCH WARRANT IS VALID

¶ 11. Probable cause must exist for a valid search warrant to be issued. Lee v. State, 435 So.2d 674, 676 (Miss.1983). The United States Supreme Court has held “that probable cause exists when the facts and circumstances in a given situation are sufficient to warrant a man of reasonable caution to believe that seizable objects are located at the place to be searched.” Id. (citing Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)). In considering whether probable cause exists, the court must look to the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). “[T]he duty of the reviewing court is to ensure that the magistrate had a ‘substantial basis for ... concluding]’ that probable cause existed....” Id.

¶ 12. Zinn claims that the search warrant was invalid for lack of probable cause because the affidavit was hearsay. Zinn does not cite any authority to support her contention and Zinn incorrectly states that Pinkerton’s phone call was the basis for the affidavit. Rather, on April 6, 1999, the animal control officer inspected the home of Zinn after Pinkerton informed the health • department of the conditions at Zinn’s home. Officer Yates detailed the condition of the cats and the living condition in the affidavit, not Pinkerton, as Zinn claims.' Therefore, the observations of the animal control officer provided the basis for the probable cause and is not hearsay because he was merely reciting what he perceived.

¶ 13. Zinn claims she saw the search warrant but she did not see the accompanying affidavit and, therefore, the search warrant was invalid. The Supreme Court of Mississippi had held “[t]here is no statute or case law that requires that the affidavit must be attached to-the search warrant, so as to make the search warrant invalid if the affidavit is absent.” Barrett v. Miller, 599 So.2d 559, 566 (Miss.1992). Therefore, Zinn’s contention that the search warrant is invalid is without merit.

III. WHETHER THE TRIAL COURT ALLOWED ZINN’S SIXTH AMENDMENT RIGHTS TO BE VIOLATED

¶ 14. Zinn argues that she was deprived of her Sixth Amendment right to confront -witnesses which caused her to be harmed and slandered. Although the Sixth and Fourteenth Amendments allow the right to confront accusing witnesses, a speedy trial, the assistance of counsel, a trial by jury, and adequate notice of charges, these rights are not enforced until the time of information, formal indictment or actual restraints are imposed by arrest and holding to a criminal charge. Perry v. State, 637 So.2d 871, 874 (Miss.1994). Although Zinn received a “Junk Ordinance” violation warning letter, Zinn was not charged for criminal conduct. Therefore, the claim that Zinn’s Sixth Amendment right was violated is without merit.

IV. WHETHER THE TRIAL COURT ERRED IN DISMISSING THE CLAIMS OF ZINN UNDER 42 U.S.C. SECTION 1983

¶ 15. Zinn claims that she was deprived of her civil rights, privileges and immunities in violation of 42 U.S.C. section 1983 because the agents of the City of Ocean Springs misused their power under the authority of state law. Zinn contends that the agents damaged her personal property in the amount of $45,000, misdiagnosed her cats, and caused her stress and humiliation. Zinn argues that the raid on her home was “intentional and deliberate action taken by appellees to deprive appellant of her constitutional rights.” To prove the agents of the City of Ocean Springs violated her rights, Zinn claims that her personal testimony and testimony from an employee of the animal control department of Ocean Springs, Officer • Yates, was sufficient.

¶ 16. Section 1983 makes every person liable “who, under color of any statute, ordinance, regulation, custom, or usage, ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws....” 42 U.S.C. § 1983 (1994). Local government units are considered “persons” under the statute. Worsham v. City of Pasadena, 881 F.2d 1336, 1339 (5th Cir.1989). “The constitutional deprivation, however, must have its origin in what can fairly be said to be a policy of the municipality.” Id. The respondeat superior theory does not apply in actions against municipalities brought under section 1983. Id. “Municipal liability based on the actions of city officials, exists only where it can be shown that the officials acted in accordance with an official government policy or firmly entrenched in custom.” Id. (citing Monell v. City of New York Dep’t of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). In Monell, the court was aware that governmental agencies act only through natural persons and held that “these governments should be held responsible when, and only when, their official policies cause their employees to violate another person’s constitutional rights.” Id.

¶ 17. The trial court held that Zinn failed to prove that she was deprived of a right secured by the Constitution and that the City of Ocean Springs inflicted injury upon her in the execution of governmental policy or custom. Regarding the agents of the City of Ocean Springs, the court held that Zinn failed to show that their “actions violated clearly established constitutional rights that a reasonable officer would have known.”

¶ 18. Zinn claims that her rights were violated under section 1983 because the government agents used excessive force and they should have known that the search warrant was invalid. As discussed above, the search warrant was valid. Regarding excessive force, Zinn did not propound discovery or depose any witnesses to gain knowledge of the customs and policies of the state. At trial, Zinn did not call any witnesses to testify about violations of state policies or to testify that the state policies were unconstitutional. Zinn does not state any specific policies the officials were following nor does Zinn attempt to explain why these policies were unconstitutional. The trial court did not abuse its discretion in holding that Zinn failed to prove that the government agents violated her constitutional rights. This issue is without merit.

V. WHETHER THE DIRECTED VERDICT IS SUPPORTED BY THE LACK OF EVIDENCE

¶ 19. Zinn argues that the directed verdict was not supported by the evidence and her testimony. Zinn contends that jurors would have ruled that there was a Fourth Amendment violation had the jury heard the evidence. Zinn also contends that she should have been allowed to testify as an expert witness.

¶ 20. The only issue for the jury was the section 1983 claims. All of the other claims were to be decided by the trial court under the Mississippi Tort Claims Act. Therefore, Zinn’s argument that the jury would have found a Fourth Amendment violation is misplaced. Additionally, Zinn’s contention that the trial judge erred when he did not allow her to testify as an expert regarding cats, is irrelevant to the 1983 claim. As discussed above, the judge did not err by granting a motion to dismiss under Rule 41(b) on the section 1983 issue because Zinn failed to prove her claim. Therefore, this issue is without merit.

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

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. . SOUTHWICK, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. IRVING, J., NOT PARTICIPATING.


author: MYERS, P.J.,

text:
    Ronnie WALLS, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01494-COA.
    Court of Appeals of Mississippi.
    April 25, 2006.

      William E. Goodwin, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK and BARNES, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Ronnie Walls was convicted of sexual battery in the Circuit Court of Pike County. He was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections and ordered to pay restitution to the victim and court-appointed attorney’s fees in the amount of $1,000. Aggrieved by the trial court’s ruling, Walls appeals, raising the following eight issues:

I. WHETHER OR NOT IT WAS PLAIN ERROR FOR THE TRIAL COURT TO AMEND THE INDICTMENT WITHOUT NOTICE TO THE DEFENDANT AND WHETHER OR NOT THE DEFENDANT WAS DEPRIVED OF A DEFENSE BY DOING SO.
II. WHETHER OR NOT THE COURT ERRED WHEN IT ALLOWED A LAY PERSON TO GIVE LAY TESTIMONY AS TO AN ISSUE REQUIRING SPECIAL KNOWLEDGE AND TRAINING TO REBUT THE MEDICAL FINDING OF A PHYSICIAN WHO WAS A RULE 702 EXPERT.
III. WHETHER OR NOT THE COURT ERRED BY ALLOWING WITNESSES TO REPEAT STATEMENTS MADE BY A TWELVE YEAR OLD GIRL WITHOUT MAKING AN ON THE RECORD FINDING OF FACT AS REQUIRED BY M.R.E. 803(25) AND IDAHO V. WRIGHT.
IV. WHETHER OR NOT THE COURT ERRED WHEN IT DENIED A MISTRIAL WHEN THE STATE OF MISSISSIPPI WITHHELD UNTIL THE LAST HOUR EVIDENCE WHICH THE COURT FOUND TO BE EXCULPATORY.
V. WHETHER OR NOT THE COURT MISTAKENLY ALLOWED AN OFFICER TO TESTIFY AS TO EVIDENCE OF A STATEMENT MADE BY THE VICTIM TO HER MOTHER AS AN “EXCITED UTTERANCE” PURSUANT TO M.R.E. 803(2).
VI. WHETHER OR NOT THE COURT ERRED IN ACCEPTING KEITH STOVALL AS AN EXPERT WITNESS IN THE FIELD OF “FORENSIC INTERVIEWS” AS THIS FIELD DOES NOT MEET THE M.R.E. 702 STANDARD FOR “EXPERT TESTIMONY”
VII. WHETHER OR NOT THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
VIII. WHETHER OR NOT THIS CASE SHOULD BE REVERSED ON THE GROUND OF CUMULATIVE ERROR AS THIS DEFENDANT WAS DENIED A FUNDAMENTALLY FAIR TRIAL.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On September 22, 2003, an eleven-year-old girl (hereinafter referred to ás “A.H.”) told her mother that her stepfather, Ronnie Walls, had sexually molested her. A.H. told Officer Randy Perry-man of the details of the incident, which eventually led Perryman to discover DNA evidence which indicated Walls , was the offender. On November 6, 2003, Walls was indicted for sexual battery and the case went to trial on July 1, 2004.

¶ 4. Keith Stovall testified at trial as a qualified expert in the field of forensic interviews of sexually abused children. Stovall had previously testified as an expert in Pike and Walthall Circuit Courts as well as in the youth courts of Adams and Walthall Counties. Stovall gave the jury his opinion of A.H.’s responses to interview questions, but was not allowed to give his opinion as to whether her story was credible or not. A.H. testified in detail to the incident along with the emergency room physician, who indicated that A.H. had no observable injury but such was not uncommon. Walls testified in his defense along with Dr. Milton Concannon. Dr. Concan-non had not examined A.H., but testified that Walls’s genitalia was too large for this incident to have occurred without causing “significant internal damage” to A.H. Dr. Concannon also told the jury that A.H. had an advanced stage of chlamydia, and that had this incident occurred Walls would have been infected. Walls did not test positive two months later; therefore, Dr. Conconnan stated that it was impossible that he had sexual relations with his stepdaughter.

¶ 5. Deputy Robert McNabb testified on rebuttal that he had observed Walls being medically examined for his complaint of “genital pain” and observed that Walls’s genitals were not as large as Dr. Concan-non had indicated. Dr. Brett Tisdale, the emergency room physician who examined A.H., also testified on rebuttal that A.H. did not have advanced chlamydia. A.H. was treated for cervititis, and Dr. Tisdale went further to explain that it was possible to have sexual relations without transmitting the disease. Dr. Tisdale also stated that it would not be possible to medically determine whether or not sexual relations had occurred between Walls and A.H. ■based solely on the size of Walls’s genitalia. After hearing all evidence, the jury found Walls guilty of sexual battery.

I. WHETHER OR NOT IT WAS PLAIN ERROR FOR THE TRIAL COURT TO AMEND THE INDICTMENT WITHOUT NOTICE TO THE' DEFENDANT AND WHETHER OR NOT THE DEFENDANT WAS DEPRIVED OF A DEFENSE BY DOING SO.

¶ 6. Walls was indicted on November 6, 2003. In this indictment Walls was charged with having committed sexual battery on or about September 22, 2003. On April 7, 2004, an order was entered amending the indictment from September 22, 2003, to September 13, 2003. Walls argues that it was plain error for him not be given notice of this amendment; however, Walls was given notice. On May 3, 2004, an omnibus hearing was held where both parties agreed to the September 13, 2003, date on the amended indictment. Therefore, this issue is without merit.

II. WHETHER OR NOT THE COURT ERRED WHEN IT ALLOWED A LAY PERSON TO GIVE LAY TESTIMONY AS TO AN ISSUE REQUIRING SPECIAL KNOWLEDGE AND TRAINING TO REBUT THE MEDICAL FINDING OF A PHYSICIAN WHO WAS A RULE 702 EXPERT.

¶7. Walls argues that the trial court erred in allowing Officer Robert McNabb to testify as a lay witness regarding his observation of the size of Walls’ genitalia as a rebuttal to Dr. Concannon’s testimony. Walls’ expert, Dr. Concannon, testified that Walls’ genitalia was too large to have committed the alleged sexual battery upon A.H. The State first called Dr. Tisdale, the emergency room physician who examined A.H., to rebut Dr. Concan-non’s testimony. On rebuttal, Dr. Tisdale testified that A.H. had a mild sexually transmitted disease called cervicitis, not advanced chlamydia as Dr. Concannon stated, and that in his opinion A.H. contracted this disease nine days prior to his examination on September 22. Dr. Tisdale went further to say that it would not be uncommon for Walls to have had this disease in September and not have it in November when he was examined. Dr. Tis-dale also stated that genitalia size would not determine whether or not penetration occurred.

¶ 8. The State then called Officer McNabb. McNabb had transported Walls from the jail to the hospital on November 5, 2003, after Walls complained of genitalia pain. The trial court allowed McNabb to testify to his personal observation during this exam, in accordance with M.R.E. 701, regarding lay testimony. This issue is without merit.

¶ 9. The standard of review for both the admission or exclusion of evidence in abuse of discretion. Harrison v. McMillan, 828 So.2d 756, 765(¶27) (Miss.2002). Even if this Court finds an erroneous admission or exclusion of evidence, we will not reverse unless the error adversely affects a substantial right of a party. Gibson v. Wright, 870 So.2d 1250, 1258(¶28) (Miss.Ct.App.2004).

¶ 10. There is a two-part test to determine the admissibility of lay witness opinion testimony. The information must assist the trier of fact and the opinion must be based upon first hand knowledge. Jones v. State, 678 So.2d 707, 710 (Miss.1996). A layperson is qualified to give an opinion based upon his first hand knowledge that other lay people do not possess. Wells v. State, 604 So.2d 271, 279 (Miss.1992). In order to determine if the opinion witness constitutes expert opinion testimony rather than lay testimony is whether that witness possesses some experience or expertise beyond that of an average person. Sample v. State, 643 So.2d 524, 529 (Miss.1994). The State was not asking McNabb to give an opinion that would require any sort of experience, or expertise; McNabb was simply asked to testify to his observation of Walls at the hospital. Therefore, this issue is meritless.

III. WHETHER OR NOT THE COURT ERRED BY ALLOWING WITNESSES TO REPEAT STATEMENTS MADE BY A TWELVE YEAR OLD GIRL WITHOUT MAKING AN ON THE RECORD FINDING OF FACT AS REQUIRED BY M.R.E. 803(25) AND IDAHO V. WRIGHT.

¶ 11. Walls argues that, it was error by the court to allow Officer Mullins, Officer Perryman and Keith Stovall to testify to what A.H. told them. The State asserts that this iss'ue is without merit, because the trial judge conducted a hearing outside the jury’s presence to determine reliability in accordance with M.R.E. 803(25).

¶ 12. The standard of review for both the admission or exclusion- of evidence is abuse of discretion. Harrison v. McMillan, 828 So.2d 756, 765(¶ 27) (Miss.2002). Walls argues that it was error for the court to allow Mullins to testify as to what A.H. told him; however, Walls did not object to this testimony based upon hearsay but objected to based upon precedent. The State withdrew this question but the court still sustained, and Walls did not request the jury be instructed io disregard. “It is a rule in this state that where an objection is sustained, and no request is made that the jury be told to disregard the objectionable matter, there is no error.” McGowan v. State, 706 So.2d 231, 243(¶ 46) (Miss.1997); Marks v. State, 532 So.2d 976, 981 (Miss.1988) (citing Simpson v. State, 497 So.2d 424, 431 (Miss.1986)). Therefore, there was no error in Mullins’s testimony,

¶ 13. Walls contends that Perry-man and Stovall should have been prohibited from testifying regarding AH.’s statements made to them. Walls relies on Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), in this allegation. However, his reliance is somewhat misplaced. In Wright, the Supreme Court focuses on the confrontation clause which is irrelevant in this case because A.H. did testify. Id. The Supreme Court did set out factors in determining reliability of child’s statements which include de-clarant’s mental state and the terminology used to describe the incident. Id. at 806, 110 S.Ct. 3139.

¶ 14. In order for hearsay testimony to be allowed into evidence, the child must be of tender years. M.R.E. 803(25). There is a rebuttable presumption that children under twelve are of tender years. Veasley v. State, 735 So.2d 432, 436(¶ 16) (Miss.1999). The time the statement was made is the relevant time to determine if tender years applies and not the age of the child at the, time of the trial. Marshall v. State, 812 So.2d 1068, 1075(¶ 20) (Miss.Ct.App.2001). Since A.H. was eleven years old at the time the statements were made, tender years applies. Once tender years is found applicable, the court must establish reliability. Id. at 436(¶ 21). Factors are set forth in M.R.E. 803(25), but the judge should make an overall determination of the likelihood that these statements are true and make an on the record finding that there is substantial indicia of reliability. Hennington v. State, 702 So.2d 403, 415(¶ 54) (Miss.1997). In this case the judge conducted a hearing outside the jury’s presence and followed the -proper procedure required by M.R.E. 803(25); therefore, the trial judge did not abuse his discretion in allowing in this testimony.

IV. WHETHER OR NOT THE COURT ERRED WHEN IT DENIED A MISTRIAL WHEN THE STATE OF MISSISSIPPI WITHHELD UNTIL THE LAST HOUR EVIDENCE WHICH THE COURT FOUND TO BE EXCULPATORY.

¶ 15. Walls argues that the State committed a prejudicial discovery violation, and the trial court erred in not granting a mistrial. A.H., in her previous statements, told investigators that she had never had sexual intercourse prior to the incident with Walls. However, the State learned the night before trial that A.H. had sexual relations the summer prior to the incident with Walls. The next day the State disclosed this newly discovered information to Walls and filed a motion in limine to keep this information out of evidence. However, the trial court denied this motion and the evidence was allowed.

¶ 16. This Court is limited in reversing a trial court regarding discovery issues; therefore, we may only reverse if the trial court abused its discretion. Byrom v. State, 863 So.2d 836, 849(¶20) (Miss.2003). Justice is better served when each side has reasonable access to all evidence well in advance of trial. Box v. State, 437 So.2d 19, 21 (Miss.1983). Walls relies on Box which states that non-discovered evidence may be admitted if the party against whom the evidence is offered has an opportunity to make adequate accommodation. Id. The court must follow the Box analysis which states that the trial court should give the defendant time to familiarize himself with the evidence and if the defendant still feels he may be prejudiced by the admission, he must request a continuance. Snelson v. State, 704 So.2d 452, 458(¶ 35) (Miss.1997). If the defendant does not request a continuance that issue is waived, but if a continuance is requested the State may choose to proceed without the evidence or the court must grant a continuance. Id. Failure to do this results in prejudicial error requiring reversal and remand. Id.

¶ 17. However, the Box analysis only applies when the evidence withheld is in-culpatory. Johnson v. State, 760 So.2d 33, 36(¶ 9) (Miss.Ct.App.2000). The Rape Shield Law protects victims from the defendant putting on evidence regarding their previous sexual conduct in order to attack their credibility. Miss.Code Ann. § 97-3-68 (Rev.2000). In order for this testimony to come into evidence, the defendant must file a motion with the court fifteen days prior to trial or make this motion later even during trial if evidence is newly discovered. M.R.E. 412(c)(1). A hearing is then conducted and the judge decides if the relevant value outweighs the prejudicial effect. M.R.E. 412(c)(3). Since this evidence dealt with A.H.’s truthfulness, the trial court allowed it to come into evidence on cross-examination. This evidence was newly discovered by the State and is exculpatory, not prejudicial to Walls. We, therefore, cannot find any prejudice suffered by Walls.

V. WHETHER OR NOT THE COURT MISTAKENLY ALLOWED AN OFFICER TO TESTIFY AS TO EVIDENCE OF A STATEMENT MADE BY THE VICTIM TO HER MOTHER AS AN “EXCITED UTTERANCE” PURSUANT TO M.R.E. 803(2).

¶ 18. Walls argues that the trial court erred in allowing Mullins to testify to what AH.’s mother told him. We find this argument interesting since the trial court did not allow this testimony. Walls objected to this testimony, the State withdrew its question and the trial judge sustained that objection. Walls did not ask for a jury-instruction or a mistrial. “It is a rule in this state that where an objection is sustained, and no request is made that the jury be told to disregard the objectionable matter, there is no error.” McGowan v. State, 706 So.2d 231, 243(¶46) (Miss.1997); Marks v. State, 532 So.2d 976, 981 (Miss.1988) (citing Simpson v. State, 497 So.2d 424, 431 (Miss.1986)). We find this issue meritless.

VI.WHETHER OR NOT THE COURT ERRED IN ACCEPTING KEITH STOVALL AS AN EXPERT WITNESS IN THE FIELD OF “FORENSIC INTERVIEWS” AS THIS FIELD DOES NOT MEET THE M.R.E. 702 STANDARD FOR “EXPERT TESTIMONY”

¶ 19. Walls argues that over his objection at trial, Keith Stovall, a counsel- or at the Children’s Advocacy Center, was allowed to testify as an expert. However, Walls never objected to Stovall as an expert. He objected to Stovall testifying as to the truthfulness of A.H. because this should be determined by the jury. The court ruled that Stovall could not testify as to whether or not A.H. was telling the truth; therefore, Walls’s objection was sustained. The court did not allow Stovall to testify to an ultimate conclusion only to what he observed.

¶ 20. To preserve an issue for appeal an objection with specificity must be made at trial or the issue is waived. Oates v. State, 421 So.2d 1025, 1030 (Miss.1982). Had this issue been preserved to review on appeal, the trial court still would not have erred in admitting Stovall as an expert witness. The standard of review in a trial judge’s decision regarding whether an expert is qualified is abuse of discretion. Triplett v. State, 814 So.2d 158, 162(¶ 22) (Miss.Ct.App.2002). Although Walls never questioned Stovall’s credentials at trial, the trial judge held a hearing and appropriately ruled Stovall as an expert forensic interviewer in accordance with M.R.E. 702. We, therefore, find this issue to have no merit.

VII. WHETHER OR NOT THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

¶ 21. The jury is to resolve all matters dealing with the weight of the evidence. Sheffield v. State, 749 So.2d 123, 125(¶ 9) (Miss.1999). This Court may only reverse if after hearing all the evidence a reasonable minded juror would not have found the accused guilty. Id. The Mississippi Supreme Court has ruled that the word of the victim of a sex crime, even if unsupported, is sufficient to support a guilty verdict. Goodnite v. State, 799 So.2d 64, 66(¶ 13) (Miss.2001). In this case, not only did the jury have the word of the victim but physical evidence and other testimony was presented to corroborate her story. It is enough that conflicting evidence is presented for the jury to resolve the factual dispute. Sheffield, 749 at 128(¶ 19). We, therefore, find this issue meritless.

VIII. WHETHER OR NOT THIS CASE SHOULD BE REVERSED ON THE GROUND OF CUMULATIVE ERROR AS THIS DEFENDANT WAS DENIED A FUNDAMENTALLY FAIR TRIAL.

¶ 22. Walls argues that the cumulative effect of the trial court’s errors denied him a fair trial. We have found no errors in this case. Where there is no reversible error on appeal, the case cannot be reversed as a whole. Byrom v. State, 863 So.2d 836, 847(¶ 12) (Miss.2003). Walls has not shown any actual error by the trial court; therefore, there was no cumulative effect and no adverse impact upon Walls constitutional right to a fair trial. This argument is without merit.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY RESTITUTION TO THE VICTIM AND COURT APPOINTED ATTORNEY FEES IN THE AMOUNT OF $1,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ÁRE ASSESSED TO PIKE COUNTY.

KING, C.J., LEE, P.J., SOUTHWICK, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ„ CONCUR. IRVING, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.


text:
    Cathy DAVIS, Appellant v. ENDEVCO, INC., Appellee.
    No. 2005-CA-00719-COA.
    Court of Appeals of Mississippi.
    May 2, 2006.

      Rabun Jones, attorney for appellant.
    Marc A. Biggers, Greenwood, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK and BARNES, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Cathy Davis appeals the decision of the Bolivar County Circuit Court to grant summary judgment to Endevco, Inc. and dismissing the complaint. In this appeal Davis raises the following issue:

WHETHER THE TRIAL COURT ERRED, AS A MATTER OF LAW, IN GRANTING SUMMARY JUDGMENT AND DISMISSING THE CASE BASED ON ENDEVCO, INC. NOT OWING A DUTY OF CARE TO CATHY DAVIS.

¶ 2. Finding that Endevco did not owe a duty of care to Davis, we affirm.

FACTS

¶ 3. This case stems from an automobile accident in which Davis drove her vehicle into a collapsed bridge. The bridge was located on Bitter Creek Road, a rural, gravel road in Bolivar County, which crosses the Bogue Phalia. Prior to October 2000, the east end of the bridge began to sag and Bolivar County road foreman Aubrey Thomas placed an orange barrel to warn motorists of the danger. Within the next several months the bridge collapsed, leaving a hole in the road that was approximately four to five feet deep. Thomas, at this time, placed barricades and signs to inform drivers of the collapse. These signs did not meet the standards set forth in the 1989 Mississippi Standard Specifications for State Aid Roads and Bridge Construction (Green Book).

¶ 4. On September 21, 2000, a notice to contractors was issued by the county for bids to be submitted for the repair of four bridges in the county. The bridges were referred to as sites A, B, C, and D. Site A is the subject of the case sub judice. On November 6, 2000, a contract was executed with Endevco for the repairs to the four sites. The contract incorporated the contract documents and revisions, the 1989 Green Book, and the Manual of Uniform Traffic Control Devices (MUTCD).

¶ 5. Following the execution of the contract, on January 15, 2001, a notice to proceed was issued by the county to En-devco. The notice authorized Endevco to begin work at any of the four project sites. Site A had already been closed by the county, while sites B, C, and D were open to the public. The county engineer, Robert E. Eley, did request that Endevco repair site A first. However, due to the necessary weather requirements for pouring concrete and the amount needed at site A, Endevco began work on the other three sites. Site C began in mid-January 2001, site B in March 2001, site C in late March 2001 and site A began in May 2001.

¶ 6. On March 28, 2001, the vehicle accident that is the subject of this litigation occurred. Davis was a passenger in the vehicle being driven by John Pearson, IV, and was injured when the vehicle was driven into the collapsed section of the bridge.

¶ 7. Davis filed suit against Endevco on February 27, 2004, asserting that Endevco had negligently failed to erect proper barricades, signs and other warning devices to warn of the collapsed bridge. Endevco filed an answer, on March 25, 2004, denying negligence and pleading the following affirmative defenses:

At the time of the accident in question Endevco, Inc. had not begun construction at site “A” and accordingly Endev-co, Inc. was not contractually obligated to provide a traffic control device at the time of the accident.
At the time of the accident in question, Endevco, Inc. was not exercising control over site “A” and for such reason it owed no duty to plaintiff or anyone else with respect to such site.

¶ 8. Discovery was limited to the issue of duty of care owed by Endevco to motorists. Endevco filed for summary judgment and a hearing was held on February 24, 2005, on the motion. At the conclusion of the hearing, the trial court granted summary judgment in favor of Endevco, holding that Davis failed to allege that Endev-co breached any duty.

STANDARD OF REVIEW

¶ 9. This Court has repeatedly stated the standard of review for denials of motions for summary judgment:

Our appellate standard for reviewing the grant or denial of summary judgment is the same standard as that of the trial court under Rule 56© of the Mississippi Rules of Civil Procedure. This Court employs a de novo standard of review of a lower court’s grant or denial of a summary judgment and examines all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied. Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant should be given the benefit of the doubt.

Heigle v. Heigle, 771 So.2d 341, 345 (Miss.2000).

DISCUSSION

¶ 10. Davis argues that Endevco owed the traveling public a duty to erect signs and barricades to warn of the collapsed bridge upon the issuance of the notice to proceed and not upon the beginning of construction on the bridge. Davis argues that this duty arises from (1) the terms of the contract, (2) the relationship created by the contract between Endevco and the traveling public and (3) public policy. We do not agree.

¶ 11. Davis’ complaint is based on a theory of negligence. In order for Davis to succeed on this theory she must demonstrate by a preponderance of the evidence (1) duty, (2) breach, (3) causation and (4) injury. Miss. Dep’t of Transp. v. Cargile, 847 So.2d 258, 262(¶ 11) (Miss.2003). To determine what if any duty Endevco owed to Davis we look to the language of the contract between Bolivar County and En-devco. In her appeal Davis has put forth three theories which she claims a duty arises requiring Endevco to erect warning signs and barricades and to close the bridge prior to the construction of the new bridge.

(1) Terms of the Contract

¶ 12. This Court has recognized that the cardinal rule of construction of a contract is to ascertain the mutual intentions of the parties. Hoerner v. First Nat’l Bank of Jackson, 254 So.2d 754, 759 (Miss.1971) (citing Rubel v. Rubel, 221 Miss. 848, 75 So.2d 59 (1954)). Intent should first be sought in an objective reading of the words employed in the contract. Cooper v. Crabb, 587 So.2d 236, 239, 241 (Miss.1991).

¶ 13. The relevant portion of the contract that pertains to the bridge in question is the Supplemental to Traffic Control Plan — Site “A.” In this supplemental it is stated: “The entire project shall be closed during construction.” (emphasis added). This sentence places the duty of closing the bridge to traffic by Endevco only during construction.

¶ 14. The supplemental also places the responsibility of inspecting the traffic control devices with the county engineer in the next to last paragraph which states:

Robert B. Eley, P.E., Bolivar LSBP Engineer, is hereby designated as the responsible person with regard to inspection of traffic control devices. Routine inspections of the traffic control devices shall be performed a minimum of once per week during the life of the project, regardless of construction activity. The contractor shall be required to correct any deficiencies noted.

The responsibility of evaluating the traffic control devices is that of the county. If the traffic control plan was deficient, Eley was to notify Endevco of the necessary changes. During the time between the notice to proceed, the accident and the construction beginning on the bridge no evidence was presented that Endevco was instructed to erect signs, barriers, or barricades.

¶ 15. When these two sections are read together, they instruct that at the time construction begins Endevco is to erect signs and barricades in accordance with the traffic control plan and that the county engineer is required to inspect and notify. Prior to construction beginning, the county was still responsible for warning the traveling public about the dangers of the bridge.

(2) Relationship between Endevco and Traveling Public

¶ 16. Davis argues that if the contract does not impose a duty, a duty arose out of the relationship the contract created between Endevco and the traveling public. We do not find that a relationship was created by the contract.

¶ 17. This Court has stated that the duty to warn the traveling public only arises when the road is under construction. Spoo v. T.L. Wallace Constr. Co., 858 So.2d 199, 204(¶ 23) (Miss.Ct.App.2003). Construction did not begin on the site until May 14, 2001, which is approximately six weeks after the accident. Endeveo’s duty was to warn only when the bridge was under construction.

(3) Public Policy

¶ 18. Davis finally argues that, as a matter of public policy, states are required to develop and implement procedures that will assure the safety of motorists when road construction is underway by erecting traffic control signs and warning devices. As authority for this argument, Davis cites 23 CFR 685.108(b) which states:

Contracts for projects shall include provisions designed:
(b) To require that the contractor shall provide all safeguards, safety devices, and protective equipment and shall take any other actions reasonably necessary to protect the life and health of persons working at the site of the project and the safety of the public and to protect property in connection with the performance of the work covered by the contract.

This regulation does impose on the contractor the duty to provide safety devices and to protect the public, but only in connection with the performance of the work.

¶ 19. The contract between Endevco and Bolivar County does meet the requirements set out in 23 CFR 635.108(b). However, at the time of the accident no work had begun at the site and Endevco was under no duty to warn the public of the danger.

¶ 20. Furthermore, Endevco does not owe a duty as a matter of public policy because according to section 1 A.07 of the MUTCD, the “responsibility for the design, placement, operation, maintenance, and uniformity of traffic control devices shall rest with the public agency or the official having jurisdiction.” At the time of the accident Bolivar County was in control of the bridge site, not Endevco. Endevco did not owe a duty as a matter of public policy.

CONCLUSION

¶ 21. At the time of the accident, En-devco owed no duty to Davis to warn of the collapsed bridge. Such a duty does not arise until Endevco began actual construction of the new bridge and was in control of the site. The contract between Endevco and Bolivar County clearly provides that during construction Endevco is to erect signs and barricades to warn. There is no provision that would impose such a duty prior to the beginning of construction. Finding that Endevco owed no duty to Davis, we affirm the grant of summary judgment.

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

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


author: ISHEE, J.,

text:
    MISSISSIPPI EMPLOYMENT SECURITY COMMISSION, Appellant v. Sandra D. WESLEY, Appellee.
    No. 2005-CC-00728-COA.
    Court of Appeals of Mississippi.
    May 2, 2006.

      Albert B. White, Madison, Attorney for Appellant.
    Sandra D. Wesley, Appellee, pro se.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. The Mississippi Employment Security Commission, now known as the Mississippi Department of Employment Security (MDES), appeals from a judgment of the Circuit Court of Newton County reversing the decision of the Board of Review of the MDES, which denied unemployment benefits to Sandra Wesley. The MDES contends that the circuit court erred by finding that Wesley’s employer, the Mississippi Band of Choctaw Indians (Employer), failed to prove by substantial evidence that Wesley committed disqualifying misconduct, pursuant to Mississippi Code Annotated section 71-5-513(A)(l)(b) (Supp.2005), by repeatedly violating the Employer’s attendance policy. The MDES further contends that the circuit court abused its discretion by improperly substituting its opinion for that of the Board of Review when it found that Wesley did not willfully and wantonly disregard the Employer’s attendance policy as a matter of law.

FACTS

¶ 2. From May 8, 1996 until October 7, 2004, Wesley worked for the Employer as a rewards representative at the Pearl River Resort. She was terminated on October 7 for excessive absenteeism, or tardiness, in violation of the Employer’s attendance policy. Wesley filed a claim for unemployment benefits on October 10, 2004. The claims examiner conducted an investigation by interviewing Wesley, and Mary Withers, from the Employer’s employee resources department. Withers explained the Employer’s policy regarding tardiness, and stated that Wesley was aware of the policy. The claims examiner determined that Wesley’s excessive tardiness amounted to misconduct, and disqualified Wesley from receiving benefits.

¶ 3. Wesley appealed the decision, and a telephonic hearing was held by the appeals referee on November 24, 2004. During the hearing, Donald Dickinson, the Employer’s employee relations coordinator, testified that Wesley was discharged under Rule 2.1.1 of the employee handbook for persistent tardiness and/or failure to give sufficient notice. Dickinson testified that, pursuant to the handbook, an employee must give at least four hours notice if he or she knows that they are going to be late. Dickinson further testified that the first three tardies are excused, followed by an oral reprimand after the fourth tardy. The employee is given a written warning after the fifth tardy, and after the sixth tardy, the employee is suspended. Upon the seventh tardy, the employee may be terminated.

¶ 4. Dickinson also explained the unfortunate sequence of events leading to Wesley’s termination; he provided documentation to support his testimony. On March 22, 2004, after three excused tardies, Wesley was tardy for a fourth time. She received an oral reprimand, and an oral reprimand form was filled out by her supervisor. Wesley was again tardy on March 29. Consequently, she received a written warning advising her that her persistent tardiness contravened the Employer’s employment policies. Wesley was tardy for a sixth occasion on April 26. Pursuant to the company policy, she was suspended for three days. The notification of suspension form stated that another incident of tardiness within one year would result in dismissal from employment. The seventh and final incident of tardiness took place on October 2, when Wesley clocked in two minutes late, at 8:02 p.m. As a result, Wesley was terminated on October 7 for excessive tardiness, in violation of the Employer’s attendance policy.

¶ 5. During the telephonic hearing, Wesley admitted that she was aware of the attendance policy, and agreed that she was tardy on the days in question. Wesley insisted that she had tried to correct her behavior, but that she continued to run late, due to traffic, if she did not leave home by a certain time. Wesley conceded, however, that all employees must take traffic into account when commuting to work.

¶ 6. After the hearing, the referee concluded that Wesley was aware that her job was in jeopardy due to her excessive tardiness. The referee noted that “misconduct,” pursuant to the unemployment compensation statute, constituted willful and wanton disregard of the employer’s interests, in deliberate violation or disregard of the standards of behavior, which the employer rightfully expects from his employees. As such, the referee determined that Wesley’s actions in violating the Employer’s attendance policy constituted disqualifying misconduct.

¶ 7. Wesley appealed the referee’s decision to the Board of Review. After considering the record, the Board of Review affirmed the decision of the referee and adopted the referee’s findings of fact and opinion on January 19, 2005.

¶ 8. Wesley appealed to the Newton County Circuit Court. On March 23, 2005, the circuit court entered its opinion reversing the decision of the Board of Review. The circuit court found that there was not substantial evidence to uphold a finding of misconduct on the part of Wesley. The court determined that, although the Employer may have had grounds for discharging Wesley for tardiness, the Employer failed to demonstrate that Wesley’s conduct was willful, deliberate or that she showed substantial disregard of the Employer’s interests. Thus, the circuit court held that the Board of Review erred in disqualifying Wesley from receipt of unemployment benefits.

¶ 9. Aggrieved by the circuit court’s decision, the MDES appeals.

STANDARD OF REVIEW

¶ 10. This appeal is governed by Mississippi Code Annotated section 7Í-5-531 (Supp.2005), which provides in part: “[i]n any judicial proceedings under this section, the findings of the Board of Review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.” If the Board of Review’s findings of fact are supported by substantial evidence and are without fraud, then the findings are conclusive. Richardson v. Miss. Employment Sec. Comm’n, 593 So.2d 31, 34 (Miss.1992) (citing Ray v. Bivens, 562 So.2d 119, 121 (Miss.1990); Melody Manor, Inc. v. McLeod, 511 So.2d 1383, 1385 (Miss.1987)). In reviewing an administrative agency’s findings and decisions, a re-buttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise. Miss. Employment Sec. Comm’n v. Parker, 911 So.2d 611, 613(¶ 5) (Miss.Ct.App.2005) (citing Lewis v. Miss. Employment Sec. Comm’n, 767 So.2d 1029(¶ 9) (Miss.Ct.App.2000)). This Court “must not reweigh the facts of the case or insert its judgment for that of the agency.” Id.

ISSUES AND ANALYSIS

I. Whether the circuit court, acting as an appellate court in this matter, abused its discretion and erred by finding that the Employer failed to prove by substantial evidence that Wesley committed disqualifying misconduct, pursuant to Mississippi Code Annotated § 71-5-513(A)(1)(b), by repeatedly violating the Employer’s attendance policy after warnings had been given.

II. Whether the Circuit Court improperly substituted its opinion for that of the Board of Review, and abused its discretion, by finding that Wesley did not willfully and wantonly disregard the Employer’s attendance policy, as a matter of law.

¶ 11. We must first note that Wesley failed to file a brief with this court. We are not obligated “to look to the record to form an opinion against the appellant where the appellee has filed no such brief outlining his opposing position.” Parker, 911 So.2d at 613(¶ 6) (citing Joseph v. Miss. Employment Sec. Comm’n, 771 So.2d 410, 412(¶ 7) (Miss.Ct.App.2000)). This Court has long held that an appellee’s failure “to file a brief is tantamount to confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and the brief of the appealing party, that there was no error.” Varvaris v. Perreault, 813 So.2d 750, 752(¶ 5) (Miss.Ct.App.2001) (citing Dethlefs v. Beau Maison Dev. Corp., 458 So.2d 714, 717 (Miss.1984)).

¶ 12. The MDES argues that the circuit court abused its discretion in finding that the Board of Review’s decision was not supported by substantial evidence. The circuit court determined that, although the Employer may have had grounds for discharging Wesley for tardiness, the Employer failed to demonstrate that Wesley’s conduct was willful, deliberate or that she showed substantial intent or disregard of the Employer’s interest, as defined in Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982). Consequently, MDES argues that the circuit court substituted its opinion for that of the Board of Review.

¶ 13. In his opinion finding that Wesley’s actions constituted misconduct, the referee cites to Wheeler for a definition of “misconduct”:

[t]he meaning of the term “misconduct,” as used in the unemployment compensation statute, was conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of the standards of behavior which the employer has the right to expect from his employees. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer, came within the term. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertences [sic] and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion were not considered “misconduct” within the meaning of the statute.

Id. at 1383 (citing Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636, 640 (1941)).

¶ 14. The referee determined that Wesley had been warned and was aware that her job was in jeopardy due to her tardiness. The referee found that, pursuant to the Employer’s policy, Wesley received an oral reprimand, a written reprimand, and a suspension before her termination for excessive tardiness on October 7, 2004. Therefore, the referee concluded that Wesley’s actions constituted “misconduct connected with the work as that term is defined.” The Board of Review affirmed the decision of the referee and adopted the referee’s findings of fact and opinion.

¶ 15. In Barnett v. Mississippi Employment Sec. Commission, 583 So.2d 193, 196 (Miss.1991), despite warnings from the employer about excessive absenteeism, the employee failed to notify the employer that he would be absent when a tree fell on his house. The court determined that the employee’s actions were unreasonable in light of the employer’s warnings. Id. Thus, the court found that substantial evidence supported the finding that the employee’s excessive absenteeism constituted misconduct and precluded employment benefits. Id.

¶ 16. Similar to Barnett, the record in this case reflects that Wesley was aware of her Employer’s attendance policy; that she knew her job was in jeopardy due to her failure to adhere to that policy; and that, despite this knowledge, she continued to violate the policy. Consequently, we find that the decision of the Board of Review is supported by substantial evidence. We also note that the purpose of the “employment fund is to take care of deserving employees who have lost their jobs through no misconduct and involuntary unemployment.” Miss. Employment Sec. Comm’n v. Borden, 451 So.2d 222, 224 (Miss.1984). Accordingly, we reverse the circuit court’s decision and reinstate the decision of the Board of Review.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF NEWTON COUNTY IS REVERSED AND RENDERED.

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


text:
    John David MILLSAP, Appellant v. MISSISSIPPI PAROLE BOARD and Mississippi Department of Corrections, Appellees.
    No. 2005-CP-00956-COA.
    Court of Appeals of Mississippi.
    May 2, 2006.

      John David Millsap, Appellant, pro se.
    Office of the Attorney General by Jane L. Mapp, attorney for appellees.
   BARNES, J.,

for the Court.

¶ 1. John David Millsap appeals the dismissal of his motion, styled “Petition for A Motion to Show Cause,” by the Circuit Court of Leflore County, Mississippi. Finding that Millsap’s petition was properly dismissed by the circuit court, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Millsap pled guilty to two counts of armed robbery in 1988. For each count he was sentenced to twenty years in prison, with sentences to run consecutively. On or about September 16, 2004, having served approximately sixteen years of his term, Millsap filed a motion in the Circuit Court of Leflore County arguing that he should be placed on parole immediately, and that he was eligible for parole pursuant to Mississippi Code Annotated section 47-7-3(l)(d) (Rev.2004) because he had served over ten years of his sentence. Millsap further argued that he was never advised by his attorney during his plea hearing that he would have to serve more than ten years of his sentence before becoming eligible for parole. The circuit court denied his motion, finding that it did not have jurisdiction to place Millsap on parole. The court further found that, even assuming it did have jurisdiction, Millsap’s motion was meritless because he was required to serve ten years for each count of his sentence before becoming eligible for a parole hearing. Aggrieved by the court’s decision, Millsap argues the same issues on appeal.

STANDARD OF REVIEW

¶3. “[W]here questions of law are raised the applicable standard of review is de novo.” Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999). The circuit court’s findings of fact will not be reversed unless we find the decision to be clearly erroneous. Id.

ISSUES AND ANALYSIS

¶ 4. Millsap’s argues on appeal that the circuit court should have immediately placed him on parole, and that he is properly eligible for parole pursuant to Mississippi Code Annotated section 47-7-3(l)(d). We find that the trial court properly determined that it did not have the authority to place Millsap on parole because “the Parole Board is given ‘absolute discretion’ to determine who is entitled to parole.... ” Cotton v. Parole Bd., 863 So.2d 917, 921(¶ 11) (Miss.2003) (quoting Scales v. Miss. State Parole Bd., 831 F.2d 565, 566 (5th Cir.1987); Shanks v. State, 672 So.2d 1207, 1208 (Miss.1996)). In fact, “the Parole Board is the only determiner of parole.” Id. The exclusive power of the Parole Board to grant parole “is independent of the circuit court’s sentencing authority.” Id. (citing Mitchell v. State, 561 So.2d 1037, 1039 (Miss.1990); Haynes v. State, 811 So.2d 283, 285 (Miss.Ct.App.2001)). Thus, the Circuit Court of Leflore County was without power to place Millsap on parole as he requested.

¶ 5. The circuit court also found that Millsap was not eligible for parole. Millsap argues that the circuit court’s ruling was in error because, pursuant to Mississippi Code Annotated section 47-7-3(l)(d)(i), he is eligible for parole after serving only ten years of his two consecutive twenty-year sentences. We disagree. Section 47 — 7—3(l)(d)(i) provides:

No person shall be eligible for parole who shall, on or after January 1, 1977, be convicted of robbery or attempted robbery through the display of a firearm until he shall have served ten (10) years if sentenced to a term or terms of more than (10) years or if sentenced for the term of the natural life of such person.

This statute has been interpreted to require that prisoners such as Millsap who have been sentenced to consecutive terms “must serve a minimum of ten years on each ... consecutive sentence[ ]....” McFadden v. State, 523 So.2d 77, 77 (Miss.1988). In Williams v. Puckett, 624 So.2d 496 (Miss.1993), the petitioner argued, as does Millsap, that he should be entitled to parole eligibility after serving ten years of only one of his consecutive sentences. Id. at 499. The supreme court rejected that contention, stating:

We do not consider this an open issue ... given the fact that the interpretation given the statute by the agency chosen to administer it should be accorded deference. Here, the parole board interpretation has operated with our implicit approval for fifteen years. If that interpretation is in error it should be corrected by the legislature. Given the law as presently interpreted the Department of Corrections has correctly calculated [the petitioner’s] date of eligibility for parole.

Id. (internal quotes omitted). In light of this holding, we defer to the Department of Corrections’ interpretation of section 47-7-3(l)(d) and hold that Millsap will only be eligible for parole after serving twenty years of his forty-year combined sentence.

¶ 6. As to Millsap’s arguments that he was not made aware of the law regarding his eligibility for parole during his plea proceedings, these arguments are barred as a successive writ pursuant to Mississippi Code Annotated section 99-39-27(9) (Rev.2000), which provides “[t]he dismissal or denial of an application under this section is a final judgment and shall be a bar to a second or successive application under this article.” Millsap has already contested the voluntariness of his plea in a motion for post-conviction relief which was found by this court to be time-barred as well as meritless. See Millsap v. State, 816 So.2d 414 (Miss.Ct.App.2002). .

¶ 7. Accordingly, we find that the circuit court properly dismissed Millsap’s motion.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF LEFLORE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LE-FLORE COUNTY.

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


author: KING, C.J.,

text:
    George A. WEATHERSBY, Appellant v. CITIBANK, (SOUTH DAKOTA), N.A., Appellee. George A. Weathersby and Ginnie Weathersby, Appellants v. Citibank, (South Dakota), N.A., Appellee.
    Nos. 2004-CP-001906-COA, 2004-CP-002098-COA.
    Court of Appeals of Mississippi.
    May 2, 2006.

      George Weathersby and Ginnie Weath-ersby, Appellants, pro se.
    J. Mark Franklin, III, Ridgeland, Lara E. Gill, attorneys for appellee.
   KING, C.J.,

for the Court.

¶ 1. Citibank (South Dakota), N.A. (Citibank), brought two actions seeking recovery on delinquent credit card accounts against George A. Weathersby and his wife, Ginnie M. Weathersby. The first action (2004-CP-1906) is against George Weathersby (Weathersby) only. The second action (2004-CP-2098) is against both George and Ginnie Weathersby (Weathers-bys). The Oktibbeha County Circuit Court granted summary judgment to Citibank against Weathersby on August 24, 2004, and against the Weathersbys on September 13, 2004. It is from this grant of summary judgment that Weathersby and the Weathersbys appeal. Both actions have been consolidated on appeal, but will be discussed separately.

FACTS

1. Citibank v. George A. Weathersby

¶ 2. Citibank notified Weathersby of delinquent credit card debt by correspondence on August 14, 2003. Weathersby disputed the debt on August 22, 2003. After verifying the debt to Weathersby with credit card statements, Citibank filed its complaint with the Oktibbeha County Circuit Court for $15, 607.96, for failure to make payments, interest at 27.99% per annum, and attorney’s fees and collection costs. Weathersby, acting pro se, filed several pleadings, including a Response Pleading of Special Matter and Defendant’s Motion for Extension to Respond Pending Discovery So That Affirmative Defenses Can Be Effectively and Properly Asserted, the latter of which was deemed a general denial of Citibank’s complaint. On April 1, 2004, Citibank filed its Motion for Summary Judgment, while Weathersby filed an Objection to Hearing on Plaintiffs Motion for Summary Judgment Pending Defendant’s Motion to Dismiss. On April 15, 2004, the court granted Weathersby’s request for an extensions of time to respond to Citibank’s motion, including a Motion to Dismiss for Lack of Subject Matter Jurisdiction and Standing to Sue on claims that the debt should be deemed void because Citibank failed to verify it, since Citibank cannot produce Weathers-by’s signed credit agreement.

2. Citibank v. George and Ginnie Weathersby

¶3. Citibank demanded payment from George and Ginnie Weathersby on their delinquent credit card accounts on February 24, 2004. Upon failure to satisfy the demand, Citibank filed its complaint against the Weathersbys on March 29, 2004, for $29,094.66, interest at 27.99% per annum, attorney’s fees and collection costs. Again, Citibank verified the debt to the Weathersbys by sending credit card statements. The Weathersbys, acting pro se, filed a Motion to Dismiss Complaint for Lack of Subject Matter Jurisdiction and Standing to Sue on May 4, 2004, claiming again that the debt should be deemed void because Citibank could not verify it. The motion was denied by the court on August 6, 2004. Citibank filed a motion for summary judgment on August 27, 2004, and it was granted on September 13, 2004.

DISCUSSION

¶ 4. A motion for summary judgment should only be granted by the trial court when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Vaughn ex rel. Vaughn v. Estate of Worrell, 828 So.2d 780, 782(¶ 9) (Miss.2002) (citing M.R.C.P. 56(c)). The burden of proving the absence of disputed material issues of fact rests upon the moving party. Miller v. Meeks, 762 So.2d 302, 304(¶3) (Miss.2000). In considering whether material disputed facts exist, the court is obligated to view the facts in the light most favorable to the nonmoving party. Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 206(¶ 7) (Miss.1999). On appeal, we employ a de novo standard of review from a grant of summary judgment by the trial court. Vaughn, 828 So.2d at 782(¶ 9).

¶ 5. Weathersby and the Weathers-bys suggest that genuine issues of material fact exist because Citibank did not comply with federal law in pursuing its collection action and is barred from bringing action on the accounts.

¶ 6. “[Credit] [e]ard-use is both a request to the issuer for a loan against a line of credit and a promise to pay.” In re Mercer, 246 F.3d 391, 405-06 (5th Cir.2001). Therefore, card-use forms a unilateral contract: the holder promises to repay the debt and the issuer performs by reimbursing the merchant who accepted the card in payment. Id. (citing Anastas v. American Sav. Bank (In Re Anastas), 94 F.3d 1280, 1285 (9th Cir.1996)). When a consumer fails to pay any alleged debt, the creditor has a right to recoup moneys, as long as it is in compliance with the Fair Debt Collection Practices Act. The Fair Debt Collection Practices Act gives the following instructions when notifying a consumer of an alleged debt:

Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing:
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector; (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

15 U.S.C. § 1692g (a) (2000)

¶ 7. On August 14, 2003, Citibank issued Weathersby a letter notifying him of his debt. On August 22, 2003, Weathersby sent correspondence disputing the debt with Citibank. In compliance with the Fair Debt Collection Practices Act, Citibank sent Weathersby credit card statements verifying his $15, 607.96 debt on September 29, 2003. When no payment was remitted, Citibank filed its complaint against Weathersby.

¶ 8. On February 24, 2004, in compliance with the requirements of the Fair Debt Collection Practices Act, Citibank issued George and Ginnie Weathersby separate letters notifying them of their indebtedness to Citibank. After no payment was remitted, Citibank filed its complaint against the Weathersbys. Because Citibank did in fact comply with the Fair Debt Collection Practices Act in requesting the debt, there is no genuine issue of material fact as to this issue.

¶ 9. Weathersby and the Weathers-bys further claim that Citibank did not establish that it was the holder of the subject accounts because Citibank failed to verify their debts by not producing their original signed credit agreements. Contrary to the Weathersbys’ claims, verification involves nothing more than a debt collector confirming in writing that the amount being demanded is what the creditor claims is owed. Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir.1999). Verification is only intended to eliminate the problem of debt collectors charging the wrong person, or attempting to collect debts which have already been paid. Id. The creditor has no further obligation to forward copies of bills or other evidence of debt. Id.

¶ 10. In verifying Weathersby’s and the Weathersbys’ debts, Citibank sent affidavits from employees on both accounts stating that Citibank owned the accounts, and that Weathersby and the Weathersbys owed on those accounts. Citibank also sent Weathersby and the Weathersbys copies of several months worth of credit card statements originally mailed to them. We find that this was sufficient in verifying Weathersby’s and the Weathersbys’ debts. Accordingly, this issue is also without merit. Therefore, the judgment granting summary judgment is affirmed.

¶ 11. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . One account was opened by George Weath-ersby with a present balance of $8,597.60. George and Ginnie Weathersby jointly opened another account with a present balance of $13, 487.93.

      . Computer printouts are sufficient to verify debts. See Graziano v. Harrison, 950 F.2d 107, 113 (3rd Cir. 1991).