author: GREMILLION, Judge.

text:
    Joe W. KING, et al. v. I.E. MILLER OF EUNICE, INC., et al.
    No. 07-167.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 21, 2007.

      D. Keith Wall, Marcantel & Marcantel, Jennings, LA, Richard J. Guidry, New Orleans, LA, for Plaintiffs/Appellees, Joe W. King Janice King.
    Terry Thibodeaux, L.L.C., Frohn & Thi-bodeaux, Lake Charles, for Defendants/Appellants, American Home Assurance Company, I.E. Miller of Eunice, Inc.
    James D. Hollier, Jennie P. Pellegrin, Laborde & Neuner, Lafayette, LA, for Intervenors/Appellees, Grey Wolf Drilling Company, L.P., Insurance of Wausau.
    Court composed of U. GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, MARC T. AMY, GLENN B. GREMILLION, and JAMES T. GENOVESE, Judges.
   GREMILLION, Judge.

LThe third-party plaintiff, I.E. Miller of Eunice, Inc., appeals the judgment of the trial court denying its motion for summary judgment and granting summary judgment in favor of the third-party defendant, Grey Wolf Drilling Company, L.P. An employee of Grey Wolf was injured as a result of the negligence of I.E. Miller’s employees. I.E. Miller sought indemnification from Grey Wolf pursuant to an indemnification clause contained in the master service agreement between the two parties. In granting judgment in favor of Grey Wolf, the trial court held that the Louisiana Oilfield Anti-Indemnity Act voided the indemnity agreement and dismissed I.E. Miller’s claims against it with prejudice. We vacate and remand.

FACTS

Joe King, a tool pusher for Grey Wolf, suffered serious injuries when he became pinned between two generators which were being moved by I.E. Miller’s employees. Thereafter, King and his wife, Janice, filed suit against I.E. Miller and its insurer. Grey Wolf intervened in the suit to recover workers’ compensation benefits paid to King as a result of his work-related accident. Thereafter, I.E. Miller filed a third-party demand against Grey Wolf seeking indemnity and defense from it pursuant to a reciprocal indemnity agreement contained in the master service agreement existing between them. In response, Grey Wolf affirmatively argued that the indemnity agreement at issue was unenforceable pursuant to the Louisiana Oilfield Anti-Indemnity Act, as set out in La.R.S. 9:2780. I.E. Miller then filed a motion for summary judgment to have Grey Wolfs affirmative defense stricken as the master service agreement contained a choice of law provision which applied | ¿Texas law to any issue arising under the contract. Although not in the record, the trial court denied the motion. I.E. Miller sought supervisory writs from this court, but was denied. See unpublished writ King v. I.E. Miller of Eunice, Inc., 05-1258 (La.App. 3 Cir. 1/30/06).

Grey Wolf filed a motion for summary judgment seeking to have the indemnity clause voided pursuant to La.R.S. 9:2780. I.E. Miller again filed a motion for summary judgment arguing that it was entitled to a defense and indemnity as provided by the agreement. Following a hearing on the motions, the trial court took the matter under advisement. Thereafter, it rendered judgment granting summary judgment in favor of Grey Wolf and denying the same in favor of I.E. Miller. The trial court then dismissed I.E. Miller’s claims against Grey Wolf with prejudice. This appeal by I.E. Miller followed.

ISSUES

On appeal, I.E. Miller argues that the trial court erred in failing to find that Texas law applied in this matter and, as a result, that it was entitled to a defense and indemnity from Grey Wolf pursuant to the indemnity provision found in the master service agreement.

SUMMARY JUDGMENT

It is well settled that an appellate court performs a de novo review of the record on the appeal of a trial court’s grant of summary judgment. Pursuant to La.Code Civ.P. art. 966(B), summary judgment shall be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that |smover is entitled to judgment as a matter of law.”

CONFLICT OF LAWS

The conflict of law provisions pertinent to the resolution of this issue are found in La.Civ.Code arts. 3540, 3537, and 3515. Initially, Article 3540 provides: “All other issues of conventional obligations are governed by the law expressly chosen or clearly relied upon by the parties, except to the extent that law contravenes the public policy of the state whose law would otherwise be applicable under Article 3537.” Article 3537 provides:

Except as otherwise provided in this Title, an issue of conventional obligations is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of: (1) the pertinent contacts of each state to the parties and the transaction, including the place of negotiation, formation, and performance of the contract, the location of the object of the contract, and the place of domicile, habitual residence, or business of the parties; (2) the nature, type, and purpose of the contract; and (3) the policies referred to in Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multi-state commercial intercourse, and of protecting one party from undue imposition by the other.

As indicated in the comments to Article 3537, this article is intended to be read in conjunction with La.Civ.Code art. 3515, which provides:

Except as otherwise provided in this Book, an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in the light of: (1) the relationship of each state to the parties and the dispute; and (2) the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of | minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state.

Comment (b) to Article 3515 explains that:

The objective is to identify “the state whose policies would be most seriously impaired if its law were not applied to that [particular] issue”, that is, the state which, in light of its relationship to the parties and the dispute and its policies rendered pertinent by that relationship, would bear the most serious legal, social, economic, and other consequences if its law were not applied to that issue.

(Alteration in original). See Harrison v. R.R. Morrison & Son, Inc., 37,992 (La.App. 2 Cir. 12/10/03), 862 So.2d 1065, writ denied, 04-0101 (La.3/19/04), 869 So.2d 857, and Roberts v. Energy Dev. Corp., 235 F.3d 935 (5th Cir.2000).

In this instance, two policies are in conflict: (1) the policy of upholding contracts freely and voluntarily entered into by the parties, and (2) Louisiana’s stated public policy against indemnity and defense provisions in oilfield contracts. We will evaluate these two policies in light of Articles 3537 and 3515.

The following facts are evident after a review of the evidence. I.E. Miller is a domiciliary of Louisiana; Grey Wolf, for the purposes of this issue, is a domiciliary of Texas, although it also has offices in Louisiana and Wyoming. |fiLa.Civ.Code art. 3517. The basic form of the master service agreement was drafted by Grey Wolf in Texas, and then sent to I.E. Miller in Louisiana. I.E. Miller amended in part and signed the agreement in Louisiana and then sent it back to Grey Wolf in Texas. Grey Wolf then approved the agreement and signed it. The parties anticipated that work under the agreement would take place in Texas, Louisiana, Mississippi, and Alabama. A verbal work order was issued by Grey Wolfs Eunice office which contemplated work to be performed only in Louisiana. The work order required I.E. Miller to move a drilling rig located at the Holland # 1 Lease, Well 50093, to Richard #2 Lease, Well 50133, all of which took place in Calcasieu Parish. The accident at issue occurred in Louisiana, which caused the resultant injury to a Louisiana resident. During the interim between the contract date and the accident, 30.17% of the work between the parties occurred in Louisiana, 51.78% occurred in Texas, 17.03% occurred in Texas and Louisiana, and the remaining 1% occurred outside Texas and Louisiana. In light of this evidence, we find that the relationship of Louisiana is stronger to each party than the relationship of Texas to each party.

However, in examining the policy considerations laid out by Article 3537, we find that the facts weigh in favor of applying Texas law. The master service agreement was drawn up by Grey Wolf and, although I.E. Miller amended other language found in the agreement, the Texas choice of law provision was accepted by it. Thus, we find that I.E. Miller would justifiably expect to be subjected to the law of Texas and would suffer minimal adverse consequences if subjected to that state’s | f,law.

Moreover, the weighing of the policy considerations set out in Article 3515 tips the scale in favor of applying Texas law to the instant matter. The Louisiana Oilfield Anti-Indemnity Act was enacted to protect Louisiana subcontractors from the imposition of an inequity foisted on them in oilfield contracts by larger entities. Grey Wolf does not fit within that category of entities the Act sought to protect. Rather, Grey Wolf is the “wolf’ from which subcontractors were intended to be protected. Thus, Texas’ policy of upholding contracts which are freely and voluntarily entered into far outweighs Louisiana’s policy of protecting oilfield subcontractors. Additionally, we find that a greater imposition would be placed on I.E. Miller if we apply Louisiana law as it has already provided indemnity and defense to Grey Wolf upon its request in an unrelated suit in Louisiana, i.e., the Villier case. .

Thus, in applying Articles 3537 and 3515, we find that the law of Texas would apply in the absence of the choice of law provision found in the master service agreement. Since Texas law would apply in either case, we find that the trial court wrongly voided the mutual indemnity and defense provision contained therein. The judgment of the trial court granting summary judgment in favor of Grey Wolf is vacated, and we remand the matter for further proceedings pursuant to this opinion.

CONCLUSION

For the foregoing reasons, the trial court’s grant of summary judgment in favor of Grey Wolf Drilling Company, L. P., is vacated and we remand the matter for further proceedings. The costs of this appeal are assessed to the third-party 17def'endant, Grey Wolf Drilling Company, L.P.

JUDGMENT VACATED; REMANDED.

      . La.R.S. 9:2780(A) provides:
      The legislature finds that an inequity is foisted on certain contractors and their employees by the defense or indemnity provisions, either or both, contained in some agreements pertaining to wells for oil, gas, or water, or drilling for minerals which occur in a solid, liquid, gaseous, or other state, to the extent those provisions apply to death or bodily injury to persons. It is the intent of the legislature by this Section to declare null and void and against public policy of the state of Louisiana any provision in any agreement which requires defense and/or indemnification, for death or bodily injury to persons, where there is negligence or fault (strict liability) on the part of the indemnitee, or an agent or employee of the indemnitee, or an independent contractor who is directly responsible to the indemnitee.

      . The trial court did not give much weight to this evidence, which was presented in an affidavit by C. Malcolm Gordon, vice-president of operations for I.E. Miller. We, also, do not give much weight to this information.


source: Caselaw Access Project

author: CLARENCE E. McMANUS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Frederick HINES.
    No. 07-KA-313.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 27, 2007.
    Rehearing Denied Dec. 18, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Ken J. Dohre, Anne Wallis, Assistant District Attorneys, Gretna, LA, for Plain-tifi/Appellee.
    Overton T. Harrington, Jr., Attorney at Law, Gretna, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

| ^Defendant, Frederick Hines, pled guilty to looting in violation of LSA-R.S. 14:62.5. In accordance with the plea agreement, defendant was sentenced to 12 years in the Department of Corrections. On appeal, defendant challenges his sentence as excessive.

Because defendant pled guilty, the facts and circumstances surrounding his offense are very limited. The arrest report shows that on September 5, 2005, Captain Wood, with the Jefferson Parish Sheriff’s Office, was on patrol when he observed subjects “looting” furniture from the BFL store on LaPalco Blvd. in Harvey. According to the report, Captain Wood saw subjects inside the store passing furniture to others who were loading it into a pick-up truck. Four perpetrators were arrested. The report notes the city was on “disaster status” following Hurricane Katrina at the time of the offense.

In this appeal, defendant argues his 12-year sentence for looting is constitutionally excessive. He contends that even though he agreed to the sentence in a plea agreement, the sentence should be reviewed for constitutional excessiveness because a constitutionally excessive sentence cannot be justified by a Lvoluntary plea. The State responds defendant is precluded from appealing his sentence because it was imposed in conformity with a plea agreement. Because we find patent error which requires us to vacate this sentence, we need not reach defendant’s assignment of error.

We review the record for errors patent , and find that the trial judge imposed an illegal sentence when he ordered defendant’s 12-year sentence to be served concurrently with any probation violation. Only the judge who revokes the probation can order the sentence on a probation revocation to run either concurrently or consecutively with the sentence on the later conviction. LSA-C.Cr.P. art. 901(C)(2); State v. Welch, 03-905 (La.App. 5 Cir. 11/25/03), 864 So.2d 204, 208, writ denied, 04-0171 (La.2/4/05), 893 So.2d 88. Thus, the trial court lacked authority to order defendant’s sentence to be served concurrently with any probation revocation.

Admittedly, the trial judge imposed the illegal sentence in conformity with a plea agreement. However, a defendant does not have a constitutional or statutory right to an illegal sentence. State v. Quinones, 03-907 (La.App. 5 Cir. 12/30/03), 864 So.2d 824, 831.

In State v. Fairman, 06-366 (La.App. 5 Cir. 10/31/06), 945 So.2d 783, 785, this Court said that

Criminal plea agreements are analogous to contracts in that they are formed by the consent of the parties established through offer and acceptance. Louisiana courts generally use civil contract law as guidance in determining the validity of plea bargains. State v. Givens, 99-3518 (La.1/17/01), 776 So.2d 443, 445; State v. Robinson, 01-946 (La.App. 5 Cir. 1/29/02), 807 So.2d 1085, 1089 writ denied, 02-0638 (La.11/1/02), 828 So.2d 563. Under our civil code an obligation cannot exist without a lawful cause. La. C.C. art.1966. La. C.C. art.1968 provides that “[t]he cause of an obligation is unlawful when the enforcement of the obligation would produce a result prohibited by law or against public policy.”

As in Fairman, the plea bargain in this case afforded the defendant an illegally lenient sentence. Such an agreement is an absolute nullity which cannot be confirmed on appeal. State v. Chisley, 03-426 (La.App. 5 Cir. 10/15/03), 860 So.2d 45, 51, writ denied, 03-3358 (La.4/2/04), 869 So.2d 874; State v. Guilbeaux, 99-591 (La.App. 5 Cir. 11/10/99), 749 So.2d 16.

For the above discussed reasons, we find that the defendant’s sentence is illegal and was imposed pursuant to an illegal plea agreement. Accordingly we vacate the sentence and remand the matter to the trial court for further proceedings, reserving to the defendant the right to withdraw his guilty plea.

SENTENCE VACATED; CASE REMANDED.

      . LSA-C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

      . The record does not reflect that a revocation sentence had been imposed at the time of sentencing on the charged offense.


author: DIAZ, Presiding Justice,

text:
    Carlos BROWN v. STATE of Mississippi.
    No. 2006-KA-01393-SCT.
    Supreme Court of Mississippi.
    Oct. 18, 2007.
    Rehearing Denied Jan. 3, 2008.

      Donald W. Boykin, Jackson, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before DIAZ, P.J., CARLSON and RANDOLPH, JJ.
   DIAZ, Presiding Justice,

for the Court.

¶ 1. Carlos Brown was convicted of one count each of kidnaping (Miss.Code Ann. § 97-3-53 (Rev.2006)), burglary (Miss.Code Ann. § 97-17-23 (Rev.2006)), aggravated assault (Miss.Code Ann. § 97-3-7(2)(a) (Rev.2006)), attempted armed robbery (Miss.Code Ann. § 97-3-79 (Rev.2006)), and shooting into a dwelling (Miss.Code Ann. § 97-37-29 (Rev.2006)), and sentenced to eighty years in custody. On appeal Brown argues that the state failed to present sufficient evidence to support his convictions, or, in the alternative, that the jury verdict is against the overwhelming weight of the evidence.

Facts

¶ 2. On May 5, 2005, Chiquita Scott was at her Jackson home with her four children, Chimaurie, Amber, Cortland, and Ladarius, and her sister, Erika Scott. Around 10:30 p.m., the lock on the front door was shot and two masked men forced their way into the house. The bullet from the gunfire hit Amber, age eleven, in the arm. Amber ran to the back of the house where she, her mother, her aunt, and her siblings attempted to escape the intruders. The two men demanded money and also asked for a man named Fat, which was the nickname of Chiquita and Erika’s brother. The sisters told their assailants that there was no money and that Fat did not live with them. One man held Erika on the floor with his foot in her back and a gun to her head while the other man beat Chiquita several times with his gun.

¶ 3. The two men fled the house, and the man who had assaulted Chiquita grabbed Amber and forced her outside. Amber testified that the man had her in a headlock and was forcing her towards a white car with tinted windows. Before reaching the car, Amber kicked her kidnaper in the shins, allowing her to escape. She later described the man as having braids and a diamond earring in his left ear.

¶ 4. Joseph White, Brown’s co-defendant, testified for the State as part of a plea arrangement. According to White, Brown picked him up earlier that night and drove to Gilbert Ewing’s house. White stayed in the car, and Brown returned about fifteen minutes later with Ewing. The three men got into Ewing’s white Mercury Grand Marquis, with Ewing in the driver’s seat. They drove to the home of Valerie Brown, the defendant’s first cousin, which was about four blocks from the Scotts’ house. White and Brown then walked down the street to the Scotts’ house where Brown shot open and kicked in the front door. White said that he simply followed Brown into the house and denied ever having a gun, asking for money, or holding Erika on the floor. According to White, Brown beat Chiquita with his gun and also forced Amber out of the house. Upon fleeing the house, White got into the car with Ewing, who was waiting down the street, and the two men drove off when they saw Brown approach with Amber. After making the block, they saw Brown without Amber. Brown got into the car and handed the gun to Ewing.

¶ 5. Two weeks after the incident, Krystal Earle called the Jackson Police and told them that Ewing and Brown were involved in the robbery. Earle was Ewing’s girlfriend at the time and had been at his house that night. She testified that Brown came over that night and asked Ewing to take him to Valerie’s house because he had to make a “lick.” Brown said that he needed a mask and a gun, and that Ewing could sit in the car. Ewing retrieved his gun and left the house with Brown. Ewing returned about an hour later with new clothes and appeared “shaky” and “sweaty.” Earle received a $1,000 reward for this information.

¶ 6. Valerie Brown also testified for the State. On the night of the incident, Brown, Ewing, and White came to her house in Ewing’s car. Brown and White left on foot, but Ewing stayed. Valerie sat in the car with Ewing for a few minutes listening to some music. She then returned inside to work on a school paper. At one point, she looked outside and noticed that Ewing was not in his car. The next time she looked, the car was missing. Valerie then heard gunshots and attempted to call Ewing. When she could not reach him, she called the defendant. Brown told her that he did not know anything about the gunshots and that he was at home. He also told Valerie not to talk to him anymore.

Standard of Review

¶ 7. A motion for a directed verdict and a motion for a judgment notwithstanding the verdict challenge the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843 (Miss.2005). When reviewing a case for sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The evidence must show “beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Id. (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). If, keeping in mind the reasonable-doubt standard, “reasonable and fair-minded men in the exercise of impartial judgement might reach different conclusions on every element of the offense,” the evidence will be deemed to have been sufficient. Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶ 8. A motion for a new trial, on the other hand, challenges the weight of the evidence. Id. at 844. We will disturb a jury verdict only when “it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). This Court acts as a “thirteenth juror” and views the evidence in the light most favorable to the verdict. Id. (citing Herring, 691 So.2d at 957). A decision to reverse and order a new trial, “unlike a reversal based on insufficient evidence, does not mean that the acquittal was the only proper verdict.” Id. (quoting McQueen v. State, 423 So.2d 800, 803 (Miss.1982)).

Discussion

¶ 9. Brown argues on appeal that there was insufficient evidence to support a verdict, or that the verdict was against the overwhelming weight of the evidence, because: (1) only Gilbert Ewing meets the description of the kidnaper; (2) only one intruder had a gun and Ewing was the only one seen with a gun; (3) the only direct testimony implicating Brown was substantially impeached; and (4) the only person the assailants attempted to rob was Fat, not Chiquita Scott.

(1) Physical Description.

¶ 10. Amber Scott testified that the man who kidnaped her had braids in his hair and also wore a diamond earring. Joseph White and Krystal Earle testified that at the time of the incident the defendant was bald and had never had braids in his hair. White also testified that Brown did not wear earrings. On the other hand, three witnesses testified that Ewing wore braids in his hair.

¶ 11. Chiquita told the police that the man who attacked her and took her daughter was around five feet six inches tall. There is no evidence in the record of Ewing’s and Brown’s height, but Valerie testified that Brown was shorter than Ewing.

¶ 12. The defendant argues that this evidence shows that only Ewing could have been the attacker and not Brown. However, the state presented sufficient evidence that would point to Brown as the attacker. Joseph White testified that Brown was the one who shot the lock, kicked open the door, attacked Chiquita, and kidnaped Amber. Krystal Earle also overheard Brown ask Gilbert for a gun and a ride to make a “lick.” Finally, Valerie Brown testified that Brown and White left her house while Ewing stayed behind.

¶ 13. Additionally, when Amber was shown a picture of Ewing at trial, she testified that she did not consider his hair to be braided.

Q: [W]hen you talk about braids is this the kind of braids you would be talking about?
A: No.
Q: That’s not?
A: No.
Q: Why not?
A: Because I am talking like braids like Erika Scott has in her hair over there. Like braids like that.
Q: What’s the difference between-in your mind do you know what a corn row is?
A: No.
Q: Okay. How would you describe that man’s hair?
A: Dread locks.
Q: Dread locks. Okay. Is there a difference in your mind, really, between a dread lock and a braid?
A: Yes.
Q: Okay. Did you explain that to the police that when you said braids you really meant dread locks?
A: No.

According to the above testimony, Amber did not consider Ewing’s hairstyle to be the one worn by her attacker.

(2) Possession of the Gun.

¶ 14. Brown argues that “the undisputed evidence was that only one of the two men had a weapon, and except for Joseph White’s testimony, it was undisputed that the only person seen with a gun was Gilbert Ewing.” First, this statement is untrue; there was testimony that both men had guns. Erika Scott testified that her assailant held a gun to her head while the other intruder beat her sister with a gun. Further, although White testified that only Brown had a gun, he admitted on cross-examination that he was prohibited from possessing a firearm due to his prior felony convictions and it would not be in his interest to admit to having a gun.

¶ 15. Second, while only White’s testimony placed a gun in Brown’s hand, reasonable jurors could conclude that Brown was wielding a firearm. This argument challenges the weight and credibility of White’s testimony, and it is axiomatic that matters regarding the weight and credibility of the evidence are to be resolved by the jury. Neal v. State, 451 So.2d 743, 758 (Miss.1984). As discussed below, the defense was allowed every opportunity to impeach White, and his credibility as a witness was a determination for the jury.

(3) Co-defendant’s testimony.

¶ 16. Brown also challenges the weight and sufficiency of the evidence, as White was the only witness who could put him at the scene of the crime. The crux of his argument is that White’s testimony was uncorroborated, and as an accomplice, his substantially impeached testimony cannot support a conviction. It is true that the uncorroborated testimony of an accomplice must be “reasonable, not improbable, self-contradictory or substantially impeached.” Mathew Jones v. State, 740 So.2d 904, 910 (Miss.1999) (quoting Louis Jones v. State, 368 So.2d 1265, 1267 (Miss.1979)). However, this argument fails for two reasons.

¶ 17. First, contrary to the defendant’s assertion, White’s testimony was corroborated by at least two other witnesses. Krystal Earle and Valerie Brown both saw the defendant shortly before the crime occurred. Earle heard Brown ask Ewing for a gun and a ride to make a “lick,” while Valerie testified that Brown and White left her house and Ewing stayed behind. This Court has held that “[w]here there is slight corroborative evidence, the accomplice’s testimony is likewise sufficient to sustain the verdict.” Ballenger v. State, 667 So.2d 1242, 1253 (Miss.1995) (quoting Mason v. State, 429 So.2d 569, 571 (Miss.1983)).

¶ 18. Second, the jury heard relevant evidence that would impeach White’s testimony. He admitted that his testimony was in exchange for a ten-year sentence and that he had five prior felony convictions. Because matters regarding the weight and credibility of the evidence are to be resolved by the jury and because “the prosecution must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence,” this argument is without merit. Mathew Jones, 740 So.2d at 910 (quoting Collier v. State, 711 So.2d 458, 461 (Miss.1998)).

(4) Intent to Rob.

¶ 19. Finally, Brown argues that the evidence cannot support a charge of attempted robbery because he only intended to rob Fat, not Chiquita. However, the evidence demonstrates that the intruders intended to rob the occupants of the house, including Chiquita Scott. Chiquita, Erika, and Amber all testified that the assailants were demanding money. It was reasonable to conclude that the two men would have taken the money from any one of the occupants, not just Fat.

Conclusion

¶ 20. The state presented sufficient evidence to support convictions of kidnaping, burglary, aggravated assault, attempted armed robbery, and shooting into a dwelling. Additionally, viewing the evidence in favor of the verdict, the defendant is not entitled to a new trial. Therefore, the assignments of error are without merit, and the judgment is affirmed.

¶ 21. COUNT I: CONVICTION OF SHOOTING INTO AN OCCUPIED DWELLING AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT I SHALL RUN CONCURRENTLY WITH THE SENTENCE IN COUNT III AND CONSECUTIVE TO THE SENTENCES IN COUNTS II, IV AND V. COUNT II: CONVICTION OF BURGLARY OF A HOUSE AND SENTENCE OF TEN(10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT II SHALL RUN CONSECUTIVE TO' THE SENTENCES IN COUNTS I AND III AND ALSO CONSECUTIVE TO THE SENTENCES IN COUNTS IV AND V. COUNT III: CONVICTION OF AGGRAVATED ASSAULT WITH A WEAPON AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT III SHALL RUN CONCURRENTLY WITH THE SENTENCE IN COUNT I AND CONSECUTIVE TO THE SENTENCES IN COUNTS II, IV AND V. COUNT IV: CONVICTION OF ARMED ROBBERY AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT IV SHALL RUN CONSECUTIVE TO THE SENTENCES IN COUNTS I AND III AND ALSO CONSECUTIVE TO THE SENTENCES IN COUNTS II AND V. COUNT V: CONVICTION OF KIDNAP-ING AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT V SHALL RUN CONSECUTIVE TO THE SENTENCES IN COUNTS I AND III AND ALSO CONSECUTIVE TO THE SENTENCES IN COUNTS II AND IV.

SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, GRAVES, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR.

      . “Lick” is slang for a robbery. See United States v. Burroughs, 650 F.2d 595, 597 n. 2 (5th Cir. Unit B July 1981) (explaining that to "make a lick” means to "commit a robbery”); Hall v. State, 785 So.2d 302, 304 (Miss.App.2001) (Defendant robbed a bank after telling witness that he "had a major lick he wanted to do.”). See also T.I., “What Happened?” on I'm Serious (Arista 2001) ("Pray to God is nothing but a robbery. I gave them all I had so they pulled they lick off flawlessly.”).


author: CARLSON, Justice,

text:
    William Thomas ROLLINS v. STATE of Mississippi.
    No. 2007-KA-00282-SCT.
    Supreme Court of Mississippi.
    Dec. 13, 2007.
    Lincoln County Circuit Court, Michael M. Taylor, J.
    Louis Ivan Burghard, attorney for appellant.
    Office of the Attorney General By Stephanie Breland Wood, attorney for appel-lee.
    Before SMITH, C.J., CARLSON and RANDOLPH, JJ.
   CARLSON, Justice,

for the Court.

¶ 1. William Thomas Rollins was convicted of one count of sexual battery, one count of touching a child for lustful purposes, and two counts of contributing to the delinquency of a minor in the Circuit Court of Lincoln County, Judge Michael M. Taylor, presiding. Rollins appeals to this court, arguing that he is entitled to a new trial because he was denied his constitutional right to confront the witnesses against him. Finding no error, we affirm.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On April 13, 2006, the Lincoln County Grand Jury handed down a multi-count indictment charging thirty-nine-year-old William Thomas Rollins with the following: (1) one count of sexual battery by inserting his finger into the vagina of an eleven-year-old, in violation of Miss.Code Ann. § 97-3-95 (Rev.2006); (2) one count of touching a child for lustful purposes by rubbing the child’s breasts and genital area in violation of Miss.Code Ann. § 97-5-23 (Rev.2006); and (3) two counts of contributing to the delinquency of a minor by routinely playing strip poker with the eleven-year-old and a twelve-year-old, in violation of Miss.Code Ann. § 97-5-39(1) (Rev.2006).

¶ 3. On October 27, 2006, the State submitted a Motion for Use of Closed Circuit Television pursuant to Miss. R. Evid. 617, as the means of presenting the testimony of the minor children to the jury, which motion was granted by the trial court. A jury trial was conducted on November 8-10, 2006, during which the trial judge permitted the minor children to testify via closed-circuit television. Technical difficulties with the video/audio equipment occurred during the first child’s testimony.

¶ 4. After the problem was remedied, the prosecution repeated the questions to the witness in an effort to assure that the jury heard the questions and answers. The second child then testified, and more technical difficulties occurred. Again, after curing the problem, the prosecution followed the same procedure with that child as with the other child. At the conclusion of the testimony of the two minors, the trial judge made the following findings on the record, outside the presence of the jury:

THE COURT: Before we get the jury in, I want to go on the record and clarify the record a little bit. We had just taken testimony in chambers from two child witnesses. The testimony was taken in the presence of a representative from the District Attorney’s office and Defense counsel, the Judge, and court reporter. The defendant was in an adjacent room and was able to communicate with his attorney by telephone.
And in order to satisfy the confrontation issues — Mr. Burghard was — Defense counsel, Mr. Burghard, was allowed to leave the room and confer with his client at various times upon his request during the testimony and before cross-examination.
And there was not — and the cameras were set in such a way so it was not apparent to the jury that the defendant was not in the room. A camera was trained on the witnesses, and the other participants in the room were not visible.
And during the testimony it was difficult to confer off the record for fear that what we talked about would be broadcast in the courtroom. And so counsel and the Judge exited the room to take up a couple of objections.

Counsel for Rollins then moved for a mistrial, arguing that Rollins was denied his federal constitutional right to confront the witnesses against him, which motion the trial court denied with the following discussion on the record.

THE COURT: The Court is going to deny the motion for mistrial. The Court specifically would note that during the motion hearing, counsel did not — counsel for the Defense abandoned his position that the testimony had to be taken in open court.
The Court at all times — every time the — every time, Mr. Burghard, you requested a break, the Court gave it to you.[] In fact, you had more time to confer with your client than you would have had in the ordinary courtroom testimony setting.
And the communication problems, for the record, dealt with transmitting the information to the jury. And the Court was in touch with the court administrator in the courtroom at all times. So when the problem arose, I was informed of it and could take corrective measures. I don’t believe there was any such communication problem with the sound system that the defendant was listening to. I could hear the echo from that, sitting in chambers, while we were taking the testimony. Those speakers functioned. The problem was transmitting it across the hall to the courtroom.
So I don’t find there was any Constitutional problem. Further, that particular objection is not timely. The Court, had it been made earlier, could have had a chance to have the testimony taken in open court. And that opportunity is gone now. The witnesses have testified. And so even if I think it was meritorious, I would find that it was not timely made, coming as it does after the testimony, instead of prior to the taking of that testimony. And I understand that you could not necessarily have anticipated—
MR. BURGHARD: It is based on the technical problem, not the actual events. We don’t have a problem with — we are not objecting, based on the way that everything was set up.
THE COURT: All right. I will deny the motion for mistrial.
MS. JONES[]: And just to note for the record, when I was examining [one child] and was notified of a problem, I tried to repeat the questions to make sure the jury heard all of them.
MR. BURGHARD: And I will stipulate to that fact.

¶ 5. After the State rested following its case-in-chief, Rollins moved for a directed verdict, and in the alternative, moved to dismiss the sexual-battery charge. During the course of the arguments on these motions, the State moved to amend the indictment against Rollins as to Count I. The State had alleged sexual battery in which Rollins inserted his finger into the eleven-year-old’s vagina. The amendment instead alleged that Rollins inserted his penis into her mouth. The trial court took these motions under advisement and directed Rollins to go forward with his casein-chief. After resting his case-in-chief, Rollins, through counsel, moved for a mistrial on the basis of Miss. R. Evid. 617(d), because Rollins could not observe the demeanor of the minor witnesses due to Rollins’s video screen’s failure. The trial court made the following finding on the record, outside the presence of the jury:

THE COURT: The Court will deny the motion for directed verdict that was just renewed at the close of the defense case. And the Court will also deny the motion for mistrial.
First, the Court removed the defendant from or allowed the defendant to be removed from the courtroom rather than watching it on the TV with the jurors because the Court did not want to highlight the fact that the defendant was being separated from the witness. And [I] went to great length to insure that the defendant was not prejudiced by the procedure and that the defendant had audio/visual feed of the testimony of the child witness, plus instant communication with counsel. That the defendant was seated across-on the other side of a wall, ten feet from Defense counsel. And the Court allowed Defense counsel to confer liberally with his client.
If there was a technical difficulty with the defendant actually observing the testimony, certainly, it should have been brought to the Court’s attention in a manner that would have enabled the Court to deal with that, rather than brought up at this point.

¶ 6. Willie Harrison, the bailiff, was in the separate room with Rollins during the minors’ testimony. At the trial judge’s request, Harrison testified as to what he observed during the minors’ testimony. Harrison stated that Rollins in fact observed no visual feed; however, the audio feed worked properly. The trial judge went on the record again:

THE COURT: A1 right. Thank you.
The Court will deny the motion for mistrial, and I find the objection is untimely. Again, the time to have raised that would have been while it was going on, while the Court could address it. There was a clear audio feed and there was communication and frequent consultation between defendant’s counsel and his client during that testimony.
MR. BURGHARD: And, for the record, Defense counsel will stipulate that there was clear communication, there was free flow going back and forth. Counsel and defendant did not observe any visual feed in the room that was unimpeded from communication with his client.
THE COURT: And I think [Harrison’s] testimony states clearly that there was no visual feed. But I think the capability we maybe thought existed.

¶ 7. After jury instructions and closing arguments, the jury began deliberations. After deliberating for approximately one hour and thirty-five minutes, the jury sent a note to Judge Taylor, who then had a conference with the attorneys and the defendant. The following discussion occurred:

THE COURT: For the record, I will, of course, include this document as part of the record. I will also read into the record the received communication from the jury approximately one hour and thirty minutes after the jury began deliberations. And the note says this:
Dear Judge, We know the prohibition you told us up front about not having access to the transcript. We are asking for a re-ruling on that portion of the testimony only. Due to the lousy video and audio of the two children’s in-court testimony, could we please have access to the recorded testimony only? The Jury.
And, for the record, of course, we do not have a tape, it was a live feed from chambers of the children who were testifying to the courtroom. And there is, of course, no transcript available for them to review that or any other portion of it at this point. Which raises the obvious concern about the jury’s complaints about the audio and video quality of the transmitted testimony.
Counsel, my thought is to send them a note that says the broadcasted testimony was a live feed only. There is no tape. The court reporter’s notes cannot be immediately transcribed.
MS. JONES: That is fine.
MR. BURGHARD: We believe that’s what is appropriate at this point.
MR. BURGHARD: The concern that I’m left with at this point is.... It sounds like the gist of it is what they’re saying is they were not able to hear the entire testimony of the two children.
THE COURT: And in a complex case, jurors are fairly quick to focus on the pivotal testimony. In any sort of case (sic). And I think part of what happens in a jury room — this is, of course, rank speculation because I have never been in one — but is they focus on a pivotal portion of that testimony. And, obviously, jurors’ opinions, recollections of that may differ, regardless of whether it was transmitted by video or whatever.
And then it’s like, show us something, give us something, you know, resolve our jury question, which is their job to resolve. So, I mean, it’s not uncommon that the jurors want to go back and revisit something, didn’t completely understand something. But I think part of that is the natural function of the jury.

¶ 8. Upon conferring with his client, counsel for Rollins made no objection. The trial judge’s written response was sent to the jury, which in due course unanimously found Rollins guilty on all counts of the indictment. The trial judge held a sentencing hearing on November 15, 2006, at the conclusion of which the trial judge sentenced Rollins to serve life imprisonment as to count one, fifteen years as to count two, and 364 days each as to counts three and four, with all counts running consecutively. On December 15, 2006, Rollins filed a motion for a new trial, which the trial court denied by order entered on January 22, 2007. Rollins timely perfected his appeal to this Court.

DISCUSSION

¶ 9. Even though Rollins raised four issues in his motion for a new trial, he assigns but one issue for us to consider on appeal. Rollins asserts that the trial court erred in denying his motion for a new trial inasmuch as he was denied his Sixth Amendment right of confrontation due to the video/audio equipment failure during the minors’ testimony. We restate the issue for the sake of today’s discussion.

WHETHER THE TRIAL COURT ERRED IN DENYING THE DEFENDANT’S MOTION FOR A MISTRIAL AND MOTION FOR A NEW TRIAL.

¶ 10. “This Court has held that ‘[wjhether to grant a motion for mistrial is within the sound discretion of the trial court.’” Carpenter v. State, 910 So.2d 528, 533 (Miss.2005) (quoting Pulphus v. State, 782 So.2d 1220, 1223 (Miss.2001) (collecting authorities)). “Furthermore, ‘the standard of review for denial of a motion for mistrial is abuse of discretion.’ ” Id. The standard of review for denial of a motion for a new trial also is abuse of discretion. Withers v. State, 907 So.2d 342, 352 (Miss.2005) (citing Flowers v. State, 601 So.2d 828, 833 (Miss.1992); Robinson v. State, 566 So.2d 1240, 1242 (Miss.1990)).

¶ 11. Rollins argues that the trial court abused its discretion in failing to grant his motion for a mistrial and motion for a new trial because he was denied his right to confront the witnesses against him in violation of his federal and state constitutional rights, inasmuch as he was unable to view the witnesses on the video screen and the jurors complained that they could not hear the witnesses’ testimony. Rollins further argues that his counsel’s objection was timely because his counsel did not know that Rollins could not view the screen because the equipment was turned off during the breaks when Rollins and his counsel conferred. Rollins argues in his brief to this Court:

The defendant was denied any constitutional ability to confront the witnesses against him. A totality of the problems includes no video feed for the Defendant and repeated audio problems for the Defendant and the Jury. By any reasonable standard, the Defendant was denied any ability to be confronted by his witnesses.

(Emphasis added). Further, Rollins argues that these technical problems amounted to “a clear violation of the United States Constitution without exception.” (Emphasis added). Finally, Rollins argues that the minors’ testimony was in violation of Mississippi Rules of Evidence 617(d), which states:

Closed circuit television testimony may be taken by any method not inconsistent with the Confrontation Clauses of the Constitution of the United States and of the State of Mississippi, the Mississippi Rules of Civil Procedure, the Mississippi Uniform Criminal Rules of Circuit Court Practice, and these rules. In the case of a criminal prosecution, after a determination that the defendant’s presence would cause a substantial likelihood of serious traumatic emotional or mental distress to the child, the trial court may exclude the defendant from the room where the testimony is taken. In any such case in which the defendant is so excluded, arrangements must be made for the defense attorney to be in continual contact with the defendant by any appropriate private electronic or telephonic method throughout the questioning. The defendant, the court and the jury must be able to observe the demeanor of the child witness at all times during the questioning.

¶ 12. First of all, Rollins waived his right to claim error in the jury’s inability to hear portions of the testimony, as his counsel, after conferring with Rollins, specifically declined to object. Spicer v. State, 921 So.2d 292, 309 (Miss.2006) (citing Williams v. State, 684 So.2d 1179, 1203 (Miss.1996)). However, procedural bar notwithstanding, the record reveals that the trial judge’s court administrator was in the courtroom with the jury during the closed-circuit testimony of the minor children, and that the court administrator was to immediately inform the trial judge if technical difficulties arose so that the problems could be remedied and questions and responses could be repeated.

¶ 13. On the issue of utilizing closed-circuit testimony of minor children, the United States Supreme Court held in Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), that the use of closed-circuit television with the testimony of minor witnesses is not in conflict with the Confrontation Clause.

The Confrontation Clause of the Sixth Amendment, made applicable to the States through the Fourteenth Amendment, provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.”
We have never held, however, that the Confrontation Clause guarantees criminal defendants the absolute right to a face-to-face meeting with the witnesses against them at trial.
The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.
[W]e have never insisted on an actual face-to-face encounter at trial in every instance in which testimony is admitted against a defendant.
In sum, our precedents establish that “the Confrontation Clause reflects a preference for a face-to-face confrontation at trial,” (emphasis added; footnote omitted), a preference that “must occasionally give way to considerations of public policy and the necessities of the case.”
Thus, though we reaffirm the importance of face-to-face confrontation with witnesses appearing at trial, we cannot say that such confrontation is an indispensable element of the Sixth Amendment’s guarantee of the right to confront one’s accusers.

Id. at 844-50 (citations omitted). The United States Supreme Court went on to discuss Maryland’s statute at issue:

We find it significant, however, that Maryland’s procedure preserves all of the other elements of the confrontation right: The child witness must be competent to testify and must testify under oath; the defendant retains full opportunity for contemporaneous cross-examination; and the judge, jury and defendant are able to view (albeit by video monitor) the demeanor (and body) of the witness as he or she testifies.

Id. at 851 (emphasis added). Thus, Rollins argues that he had an absolute right to view the demeanor of the minor witnesses, and since he did not have that opportunity, he was unconstitutionally denied a fair trial. However, in order to receive a new trial, Rollins must show that the denial of his right to view the demeanor of the minor witnesses prejudiced him. Rollins does not argue that he was prejudiced in any way; instead, Rollins incorrectly argues that his right is “without exception.” “Assertions of error without prejudice do not trigger reversal.” Jones v. State, 912 So.2d 973, 977 (Miss.2005) (citing Nicholson ex rel. Gollott v. State, 672 So.2d 744, 751 (Miss.1996)).

¶ 14. Accordingly, since Rollins does not argue that he was prejudiced or demonstrate how he was prejudiced, this argument is without merit.

CONCLUSION

¶ 15. For the reasons stated, the judgment of conviction and sentence entered by the Circuit Court of Lincoln County is affirmed.

¶ 16. COUNT I: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF TOUCHING A CHILD FOR LUSTFUL PURPOSES AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNTS III & IV: CONVICTION OF CONTRIBUTING TO THE DELINQUENCY OF A MINOR AND SENTENCE OF THREE HUNDRED SIXTY-FOUR (364) DAYS, EACH COUNT, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCES SHALL RUN CONSECUTIVELY.

SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.

      . A copy of this motion appears in the record, but does not contain the circuit clerk's file stamp. A hearing on this motion was scheduled to be held on November 6, 2006. However, a transcript of this hearing was not included in the record.

      . In addition to the testimony of the minor children, the other witnesses who testified in the State’s case-in-chief were Judy Wilson, a licensed social worker who worked in the Family and Children Services Division of the Mississippi Department of Human Services; Rodney Foster, a criminal investigator with the Lincoln County Sheriff's Department; Brook Thornton, a mental health therapist; Johnny Hall, an employee with the Lincoln County Sheriff's Department; and Dr. Catherine Dixon, a licensed psychologist who was the clinical director of the Mississippi Children's Advocacy Center in Jackson.

      . The trial transcript reflects a minimum of four times that the Court went off the record for a break.

      . Ms. Jones is the assistant district attorney.

      . Rollins filed his appeal expressly pursuant to the trial court’s denial of his motion for a new trial, and he states as his issue on appeal in his brief that "the trial court erred in denying appellant’s Motion for New Trial.” However, Rollins also mentions in his brief that he appeals the trial court's denial of his motion for a mistrial.


author: DICKINSON, Justice,

text:
    Daniel Joe MARTIN v. STATE of Mississippi.
    No. 2006-KA-00145-SCT.
    Supreme Court of Mississippi.
    Dec. 13, 2007.

      David Lee Brewer, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder attorney for appellee.
    Before DIAZ, P.J., DICKINSON and LAMAR, JJ.
   DICKINSON, Justice,

for the Court.

STATEMENT OF THE CASE

¶ 1. The defendant was convicted of felony child abuse based on the State’s contention that he punished a child for a potty-training accident by holding her in scalding water until her feet were burned. We affirm.

BACKGROUND FACTS AND PROCEEDINGS

¶2. On August 22, 2003, Taci Glidden, who was two years and nine months old, was left in the care of her mother’s live-in boyfriend, Daniel Joe Martin, while her mother and Martin’s mother (who also lived in the household) went to work. In the later afternoon, Taci had an accident in her training pants, and Martin took her to the bathroom to clean her up.

¶ 3. Martin claims that, as he began running water in the bath tub to clean Taci up, Daniel Jr. began crying in another room. Martin says he told Taci to get into the tub and wash off. Martin claims that a few moments later, Taci emerged from the bathroom, and her feet were extremely red. Martin says that when he realized the child had been burned, he attempted to soothe her feet in a bowl of cold water.

¶4. Later that evening, when Taci’s mother, Amy Preston, and Martin’s mother, Brenda Ray, returned from work, Martin says that he informed them about the incident. By that time, he claims that the child’s feet were much worse, and the two women took Taci to the hospital. From Greenwood-Leflore Hospital, the child was sent to the Greenville Burn Center where she remained for seven days. The incident was reported to law enforcement, and Martin was indicted for felony child abuse.

¶ 5. At trial, the State called Dr. Jeffrey Lee Hardin as an expert in the field of emergency medicine and pediatrics, with special training in the area of child abuse. Dr. Hardin testified that Taci’s burns were inconsistent with the theory of accident, because she had “immersion burns” on both feet with no additional splash injuries. He also stated that “[he couldn’t] imagine that an almost three-year-old child put one foot into water that was hot enough to cause a third-degree burn and then voluntarily swung the other foot into that water.” He further testified that the sock-like burns on Taci’s feet and legs evinced a pattern typical of intentional abuse.

¶ 6. Martin was found guilty of felony child abuse and was sentenced to the maximum twenty years in the custody of the Mississippi Department of Corrections. On appeal, Martin raises four assignments of error: (1) the circuit court erred in failing to grant his motion for a directed verdict under the Weathersby rule; (2) the circuit court erred by allowing the jury to learn of a youth court adjudication that Taci and Daniel were abused and neglected; (3) the circuit court erred in allowing evidence of Martin’s previous driving-under-the-influence conviction (DUI); and (4) the verdict was against the overwhelming weight of the evidence.

ANALYSIS

I.

¶ 7. In 1933, this Court decided Weathersby v. State, 165 Miss. 207, 209, 147 So. 481 (1933), which held that where “the defendant or the defendant’s witnesses are the only eyewitnesses to a homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the State, or by the physical facts or by the facts of common knowledge.” Id. at 209, 147 So. 481 (emphasis added). This holding has become known as the Weathersby rule.

¶ 8. Martin argues that he was entitled to a jury instruction incorporating the Weathersby rule. However, the case against Martin does not involve a homicide, and the Weathersby rule is applicable only in homicide cases. See Brown v. State, 907 So.2d 336, 340 n. 1 (Miss.2005) (holding Weathersby rule inapplicable to conviction for drug possession). This assignment of error is without merit.

II.

¶ 9. Martin next contends that the trial judge committed reversible error by allowing into evidence a prior youth court adjudication that Taci and Daniel Jr. were abused and neglected children. We need not analyze the admissibility of such evidence in this case because the issue was initiated by Martin’s counsel during his cross-examination of social worker Katrina McClain:

Q: [d]id your office open up a case on Taci?
A: Yes, sir, we did.
Q: Because of this?
A: Yes.

He then proceeded to question McClain about the status of the case, inquiring:

Q: Okay. And is the case still open?
A: No, sir.
Q: Okay. When was it closed?
A: I can’t recall. Must be sometime early part of this year ...
Q: Okay. And did you — did your office feel that because the case was closed that there was no longer any threat from Daniel to Taci?
A: I can’t answer that right now.
Q: Well, it’s either yes or no.

¶ 10. On re-direct, the prosecutor asked McClain:

Q: Okay. So what you’re saying is— and if you need to refresh your memory — was the child adjudicated an abused child?
A: Yes.

¶ 11. It is well-settled that a defendant who “opens the door” to a particular issue runs the risk that collateral, irrelevant, or otherwise damaging evidence may come in on cross-examination. Murphy v. State, 453 So.2d 1290, 1294 (Miss.1984) (citing Reddix v. State, 381 So.2d 999 (Miss.1980)). A defendant cannot complain on appeal concerning evidence that he himself brought out at trial. Fleming v. State, 604 So.2d 280, 289 (Miss.1992). Stated another way, “if the defendant goes fishing in the state’s waters, he must take such fish as he catches.” Reddix, 381 So.2d at 1009.

¶ 12. In this case, the subject of the youth court adjudication was initiated by Martin’s counsel. Thus, the trial court did not err in allowing the state to continue this line of questioning.

III.

¶ 13. Martin complains that he was prejudiced by the admission of evidence concerning a past DUI incident. During the State’s questioning of Amy Preston, the following dialogue took place:

Q: Back in August of 2003 would you describe for the jury Daniel’s physical condition.
A: 2003. Well, in June of 2003 he was in a car wreck, a van wreck, and he was messed up pretty bad. He was in the hospital for ten days. He had fractured ribs, fractured pelvis, his hip and his knee was busted up pretty bad, and he could barely walk ...
Q: In August can you tell me what his physical limitations were then.
A: He would walk, but he had to hold onto things to balance, you know, kind of balance and keep himself up, but he could walk.
Q: And could he kneel?
A: No.

¶ 14. After Martin’s counsel cross-examined Preston, the following took place during the State’s re-direct:

Q: You indicated that in June, 2003, Daniel Martin’s physical condition was poor; is that correct?
A: Yes.
Q: And you say he was in an accident?
A: Yes, sir.
Q: What happened?
A: He was in a bad car wreck. He was hit on the highway.
Q: Was this not a DUI where he like to have killed himself and the other person?

¶ 15. Whereas the prosecutor’s previous comments regarding the youth court adjudication were appropriate to counter the defense’s suggestion that the Department of Human Services, (DHS) had not found Martin responsible for the burns, the statement concerning this DUI incident clearly was inappropriate. Nothing in the record justified any reference to a previous DUI incident in which someone was almost killed. However, the trial court sustained the defense’s objection to this line of questioning, and defense counsel neither requested a limiting instruction, nor moved for a mistrial. We consistently have held that issues not presented to the trial court are deemed waived and may not be raised for the first time upon appeal. Tate v. State, 912 So.2d 919, 928 (Miss.2005); Witcher v. State, 479 So.2d 710, 712 (Miss.1985).

¶ 16. It is not per se prejudicial for a jury to hear an isolated instance of a crime or bad act during the course of a trial. Brown v. State, 890 So.2d 901, 913 (Miss.2004). Thus, the burden is properly on defense counsel to seek a mistrial or ask for a limiting instruction. Id. We find this issue is without merit.

IY.

¶ 17. In deciding whether a jury verdict is against the overwhelming weight of the evidence, this Court will disturb a jury verdict only when it is so contrary to the overwhelming weight of evidence that allowing it to stand would sanction an unconscionable injustice. Taggart v. State, 957 So.2d 981, 987 (Miss.2007). Thus, we must examine the record for evidence sufficient to meet this burden.

¶ 18. Katrina McClain, a social worker with DHS, testified that, upon asking the child what happened, Taci said that “Daddy did this.” McClain also read into evidence a letter DHS had received from Dr. Love, the treating physician at Greenwood-Leflore Hospital, which stated that the burns were “suspicious for an emerged burn. Potentially the child was forced in the water because they are circumferential around both anklets] in a stocking glove fashion, but it is impossible to say they happened the way the family described or not. Just suspicious for potential forced burn of the feet.” Dr. Jeffrey Hardin, an expert in the field of emergency medicine and pediatrics with special training in child abuse, opined that Taci “was forcibly placed in the water and held there.” He further concluded that “when you consider the child’s age, the extent of her burns and the distribution of her burns ... this is an obvious case where she was forcibly placed in the water, and it’s consistent, in my opinion, with child abuse.”

¶ 19. Based upon this testimony, we cannot say that the conviction was against the overwhelming weight of the evidence. As we have stated before, “Any conflicts between witnesses’ accounts are properly weighed by the jury. When the evidence is conflicting, ‘the jury will be the sole judge of the credibility of witnesses and the weight and worth of their testimony’ ” Jenkins v. State, 947 So.2d 270, 278 (Miss.2006). Because the jury’s verdict was not against the overwhelming weight of the evidence, we must defer to the jury’s decision on this issue.

CONCLUSION

¶ 20. For the reasons stated above, Martin’s conviction and sentence are affirmed.

¶ 21. CONVICTION OF FELONY CHILD ABUSE AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CONDITIONS, AFFIRMED.

SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, GRAVES, RANDOLPH AND LAMAR, JJ., CONCUR.


author: ROBERTS, J.,

text:
    Danny Lee WILLIAMS, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-01850-COA.
    Court of Appeals of Mississippi.
    Sept. 4, 2007.
    Rehearing Denied Dec. 11, 2007.

      David L. Walker, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before MYERS, P.J., ISHEE, ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. A jury sitting before the Panola County Circuit Court found Danny Lee Williams guilty of three counts of fondling a child and six counts of sexual battery. The circuit court sentenced Williams as follows:

Fifteen years for count I;
Five years for count II, to run concurrently with count I;
Five years for count III, to run concurrently with counts I and II;
Five years for count IV, to run consecutively to counts I, II, and III;
Five years for count V, to run concurrently with count IV;
Five years for count VI, to run concurrently with counts IV and V;
Five years for count X, to run concurrently with counts IV, V, and VI;
Five years for count XI, to run concurrently with counts IV, V, VI, and X, and; Five years of post-release supervision for count XII, to run consecutive to counts IV, V, VI, X, and XI.

Following unsuccessful post-trial motions for JNOV or, alternatively, for a new trial, Williams appeals and raises four issues, listed verbatim:

I. THAT THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT’S OBJECTION TO TESTIMONY FROM TOMIKO MACKEY CONCERNING THE BELIEVABILITY OF [JANE],
II. THAT THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT’S OBJECTION TO THE INTRODUCTION INTO EVIDENCE OF THE VIDEO TAPE RECORDING OF [JANE] AND TOMIKO MACKEY.
III. THAT THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT’S OBJECTION TO THE ACCEPTANCE OF TOMI-KO MACKEY AS AN EXPERT WITNESS IN THE FIELDS OF FORENSIC INTERVIEWING, USING FINDING WORDS TECHNIQUE AND CHILD SEXUAL ABUSE.
IV.THAT THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S MOTION FOR A NEW TRIAL AND IN THE ALTERNATIVE FOR A JUDGMENT NOT [SIC] WITHSTANDING THE VERDICT.

Finding no error, we affirm.

FACTS

¶ 2. This case centers on a stepfather’s inappropriate conduct with his stepdaughter. Danny Lee and Sandra Williams married in 2002. Sandra had a daughter, Jane, from a previous relationship. Williams worked two jobs. At nights, he worked as a police officer with the Lambert Police Department.

¶ 3. On February 19, 2006, Sandra and Jane dropped Williams off at work. During the return trip, Sandra and Jane discussed Jane’s cell phone use. Jane had been borrowing Sandra’s cell phone and Sandra wanted to know why. Additionally, Sandra wanted to know why Jane was using the phone late at night. It was then that Jane told Sandra that Williams had been touching her inappropriately for some time.

¶4. Sandra did not immediately notify anyone in law enforcement. However, Sandra contacted authorities the very next day. Sandra first spoke with Officer Michael Harden of the Batesville Police Department. She gave the following statement:

Yesterday, February 19, my daughter, [Jane], informed me that my husband, Danny Lee Williams, has been molesting her while I was asleep. This, of course, disturbed me and I asked her to tell me details. Slowly she has been telling me that when he would get off work from his second job that he would come into her room and touch her breast and private area. She also said that he said, “This is how you do your boyfriend.” She had to rub on his penis and even stick it in her mouth. He would lay on her and play his penis around her vagina. He would even cum but not in her. He would only leave her alone if he thought her period was on. He said, “This is our secret, don’t tell mom or anybody else.”

¶ 5. On February 22, 2006, Captain Paul Shivers, a detective with the Batesville Police Department, visited Sandra’s home. Captain Shivers gave Sandra equipment by which she could record phone conversations. Captain Shivers taught Sandra how to use the equipment. The intended goal was to record Williams’s phone conversations with Jane.

¶ 6. Based on the record, it appears that Sandra and Jane recorded more than one of Williams’s phone calls. During those phone calls, at Sandra’s instruction, Jane hinted to Williams that she was pregnant. According to trial testimony, Williams became “nervous.” Sandra later returned the equipment and the taped conversations to Captain Shivers.

¶ 7. Captain Shivers referred Sandra and Jane to the Department of Human Services office in Sardis, Mississippi. There, they met with Bonnie Jean Rogers, a social worker who investigates child neglect and child abuse. Because the Panola County Department of Human Services did not have the required video and audio setup, Rogers referred Sandra and Jane to the Family Crisis Center in Oxford, Mississippi.

¶ 8. At the Family Crisis Center, Jane met with Tomiko Mackey, a “forensic interviewer.” Mackey interviewed Jane pursuant to a particular method designed to determine whether Jane’s version of events was consistent with a child who had suffered sexual abuse. Mackey recorded the forensic interview on audio and video equipment. Additionally, four people watched the interview through a two-way mirror. Those four people included Rogers and Captain Shivers, as well as additional staff members of the Panola County DHS and the Family Crisis Center. After the interview, Mackey concluded that Jane’s version of events was consistent with that of children who suffered sexual abuse.

PROCEDURAL HISTORY

¶ 9. On April 26, 2006, the Panola County grand jury returned an indictment against Williams and charged Williams with three counts of gratification of lust and nine counts of sexual battery. Williams pled not guilty and proceeded to trial.

¶ 10. Williams’s trial commenced on August 21, 2006. The prosecution called Sandra, Jean Rogers, and Tomiko Mackey during the first day of trial. As will be discussed, Williams takes issue with the circuit court’s decision to allow the prosecution to call Mackey as an expert witness. Additionally, the prosecution submitted Jane’s taped interview during Mackey’s testimony. Williams objected on the basis that he did not have an opportunity to confront Jane during the forensic interview. The next morning, the prosecution called Jane and Captain Shivers. The prosecution rested after Captain Shivers testified.

¶ 11. At that point, Williams moved to dismiss counts seven, eight, and nine of the indictment. Those counts alleged that Williams digitally penetrated Jane’s vagina. However, Jane testified that Williams never digitally penetrated her. The circuit court granted Williams’s motion to dismiss counts seven, eight, and nine. Accordingly, Williams faced nine counts, rather than twelve.

¶ 12. Williams proceeded to present his case-in-chief. Williams first called Jane. After brief testimony from Jane, Williams took the stand. Williams testified that he never touched Jane inappropriately. During cross-examination, Williams explained his comments during the recorded phone conversations:

Q. Now, once again [Jane] is talking to you on the phone and you keep asking, “She know what’s going on? She know what’s going on?”
A. Yeah, that’s her mother’s voice.
Q. That wasn’t [Jane]?
A. You said she kept asking if she knows what’s going on. That was her mother asking what’s going on.
Q. And what did Sandra want to know what’s going on?
A. What was going on with her daughter. I was trying to find out as well as she was.
Q. Danny Williams, didn’t you say— you asked, “Does she know what’s going on?”
A. Did her mother know what’s going on or did [Jane] know what’s going on?
Q. Well, [Jane] knew what was going on, didn’t she?
A. Apparently she didn’t because her mother had to put her up to it.
Q. Okay. And [Jane] keeps saying, “Should I tell her? Should I tell her? Should I tell her?” What was your answer?
A. No.
Q. Your answer was, “No. Wait until I get home.”
A. Right.
Q. Now, why did you want [Jane] to wait until you got home before she told her momma?
A. Because everything we discussed we did as a family matter. We never discussed any business over the phone. We try to discuss equal business and whatever [Jane] had to say to me, we are going to find out and be right in front of the mother as well.
Q. All right. Now, I believe there are some other things on this tape that were of interest, don’t you agree?
A. Perhaps.
Q. Perhaps?
A. Perhaps it may be.
Q. [Jane] tells you, “I want to tell her.” [Jane] says, “I got to tell her.” What was your answer?
A. Don’t tell her and wait until I get home because everything we did, we did as a family.
Q. No, that wasn’t your answer. Your answer was, “You can’t.” Now, why did you tell [Jane] she couldn’t tell?
A. Because what we talk about we talk about among one another.

The prosecutor then related an exchange from the last recorded call in which Jane told Williams she was pregnant. The following exchange then occurred:

Q. [Jane] says, “You know it’s yours.” Do you remember what your answer was?
A. Actually, I don’t but it shouldn’t have been mine.
Q. “I’ll explain it for you. Okay? We’ll get that fixed.” What does that sound like?
A. That means that once I get to the house and sit down and find out who she been messing with and explain to her momma because she did have boyfriends that we did allow her to see.

Williams rested after he concluded his testimony and the circuit court adjourned for the day.

¶ 13. The next morning, Williams and the prosecution submitted jury instructions. At approximately 10:30 a.m., the jury retired to deliberate. Approximately one hour later, the jury returned guilty verdicts on all nine counts.

¶ 14. On September 22, 2006, the circuit court conducted a hearing on Williams’s post-trial motions for JNOV or, alternatively, for a new trial. The circuit court ultimately overruled Williams’s post-trial motions and sentenced Williams incident to all counts. Aggrieved, Williams appeals.

ANALYSIS

I. THAT THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT’S OBJECTION TO TESTIMONY FROM TOMIKO MACKEY CONCERNING THE BELIEVABILITY OF [JANE],

¶ 15. Here, Williams claims the circuit court erred when it allowed the prosecution to elicit Mackey’s testimony that she found Jane’s version of events consistent with a child who had been sexually abused. In considering this issue, we are mindful of our familiar abuse of discretion standard. Burton v. State, 875 So.2d 1120(¶ 6) (Miss.Ct.App.2004). We will find an abuse of discretion where a defendant demonstrates clear prejudice resulting from an undue lack of constraint on the prosecution. Id. Additionally, we will reverse the circuit court if we find its decision to be clearly wrong. Id.

¶ 16. The testimony at issue transpired during the following exchange:

Q: [Mr. Kelly, for the prosecution] And did you, in fact, conclude your interview with Jane?
A: Yes, I did.
Q: Was [Jane] believable?
MR. WALKER [For Williams]: Judge, I object. That is a question for the jury to determine.
MR. KELLY: I think it is an opinion that she can render.
THE COURT: I think this witness can, in fact, render that opinion. I would overrule.
MR. WALKER: Judge, I then object for the record. I think it is beyond the scope of an actual witness.
THE COURT: I think this witness can give her opinion. Ladies and gentlemen of the jury, you are not bound by it just like you are not bound by the opinion of any witness. I mean, a brain surgeon can come in here and testify and that doesn’t tie the jury down to that witness’s opinion of being absolute. You still have the right to weigh and give credibility and believability to all witnesses, experts included, but this witness has been qualified as an expert, so I think she can give you the benefit of her opinion for whatever weight you think it is entitled to.
Q: Did you form an opinion as to the believability of Jane?
A: I did form an opinion, yes.
Q: What was that opinion?
A: Based on Jane’s disclosure and based upon her reported experiences of sexual abuse, my finding was her report was consistent with a child who had been sexually abused.

¶ 17. Williams bases his argument on the premise that Mackey’s expert opinion was an opinion on Jane’s credibility and was, therefore, inadmissible because it invaded the province of the jury and was unhelpful to its determination. “It is true that, in a child abuse case, a witness’s opinion that the alleged victim was telling the truth is of dubious competency and, therefore, is inadmissible.” Lattimer v. State, 952 So.2d 206(¶ 40) (Miss.Ct.App.2006). While the prosecutor’s question called for an improper answer when he asked Mackey whether she found Jane believable, Mackey’s answer, however, was not improper. Mackey responded, “Based on Jane’s disclosure and based upon her reported experiences of sexual abuse, my finding was her report was consistent with a child who had been sexually abused.” We have held that such answers are not vouchers of credibility. See, e.g., Elkins v. State, 918 So.2d 828(¶ 9) (Miss.Ct.App.2005). Accordingly, we find no abuse of discretion in the circuit court’s decision to overrule Williams’s objection.

II. THAT THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT’S OBJECTION TO THE INTRODUCTION INTO EVIDENCE OF THE VIDEO TAPE RECORDING OF [JANE] AND TO-MIKO MACKEY.

¶ 18. In this issue, Williams submits that the circuit court erred when it allowed the prosecution to introduce the videotaped interview between Mackey and Jane. According to Williams, the circuit court’s decision amounted to a violation of Williams’s right to confront witnesses against him. In the previous issue, we discussed our standard of review regarding a circuit court’s decision to allow the introduction of evidence. For brevity’s sake, we will not repeat it.

¶ 19. 'Williams relies on the United States Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In Crawford, the United States Supreme Court held that:

the Confrontation Clause of the Federal Constitution’s Sixth Amendment bars the admissibility of out-of-court testimonial statements by an unavailable witness offered in a criminal trial to prove the truth of a matter asserted (also known as hearsay) unless the defendant has had a prior opportunity to cross-examine the witness about the statement.

Frazier v. State, 907 So.2d 985(¶ 36) (Miss.Ct.App.2005). As a result, “testimonial hearsay must be exposed to confrontation by way of cross-examination prior to reaching admissible status, while non-testimonial hearsay does not trigger the need for confrontation to be admissible.” Id. at (¶ 39). “Thus, our application of Crawford to the present facts depends upon a determination of whether the evidence admitted is ‘testimonial.’ ” Id. Crawford declined to provide a firm definition of “testimonial” evidence. Crawford, 541 U.S. at 68, 124 S.Ct. 1354. Even so, Crawford did provide examples of “testimonial” evidence. Id. According to Crawford, prior testimony at a preliminary hearing, before a grand jury, or at a former trial and prior testimony during police interrogations, are all examples of “testimonial” evidence. Id.

¶ 20. As a threshold matter, we must first determine whether the evidence at issue qualifies as “hearsay.” Under Rule 801(c) of the Mississippi Rules of Evidence, “[h]earsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” (internal quotations omitted). “Hearsay is not admissible except as provided by law.” M.R.E. 802. The prosecution played the video before the jury. The operative substantial information on the video came from Jane. Jane was certainly not testifying at a trial or a hearing at the time. If the prosecution offered the videotaped interview for any purpose other than the truth of the matter asserted — that Williams engaged in inappropriate conduct with Jane — then that purpose is not among the record. Accordingly, we must conclude that the videotaped interview was most certainly hearsay.

¶ 21. Having found such, we must now determine whether the videotape was “testimonial” as contemplated by Crawford. A videotaped forensic interview incident to allegations of sexual abuse is not one of the examples of “testimonial” hearsay discussed in Crawford. However, those examples were not meant to be exhaustive.

¶ 22. The interview at issue occurred at a non-profit, non-governmental entity. However, the interview arose based on a report to a police department and a referral to the Panola County Department of Human Services, which, due to a lack of proper recording equipment, then referred Jane to the Family Crisis Center. A law enforcement officer observed that interview, after having gathered evidence by recording phone conversations. Based on the fact that law enforcement was intimately involved in obtaining the interview and was present at the interview, we conclude that this videotaped forensic interview was testimonial in nature, as contemplated by Crawford. See Snowden v. State, 156 Md.App. 139, 846 A.2d 36, 47 (Ct.Spec.App.2004) (statements, of minors to social worker were “testimonial” because they were made for purpose of developing testimony for trial); T.P. v. State, 911 So.2d 1117, 1123 (Ala.Crim.App.2004) (minor’s statements were result of interview conducted by social worker and investigator as part of criminal investigation and, because interview was intended to be used as investigative tool for potential criminal prosecution, interview was similar to police interrogation and thus fell within definition of “testimonial” as contemplated by Crawford).

¶ 23. That is not the end of the analysis. Testimonial hearsay must be subjected to cross-examination before it may be admissible. Williams did not get to cross-examine Jane prior to the admission of the videotaped forensic interview. However, we cannot find that Williams was unduly prejudiced because Williams cross-examined Jane later during the trial and even called Jane during his case-in-chief. Williams had the opportunity to question Jane about her statements on the videotape and in general. Accordingly, though we find error, we find it harmless beyond a reasonable doubt.

III. THAT THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT’S OBJECTION TO THE ACCEPTANCE OF TOMI-KO MACKEY AS AN EXPERT WITNESS IN THE FIELDS OF FORENSIC INTERVIEWING, USING FINDING WORDS TECHNIQUE AND CHILD SEXUAL ABUSE.

¶ 24. In this issue, Williams claims the circuit court erred when it allowed the prosecution to submit Mackey as an expert witness in forensic interviewing, using a technique called “Finding Words,” and in child sexual abuse. Rule 702 of the Mississippi Rules of Evidence governs admissibility of expert opinions. Pursuant to M.R.E. 702:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of rehable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

“While an expert may not opine that an alleged child sex abuse victim has been truthful, the scope of permissible expert testimony under Rule 702 includes an expert’s opinion that the alleged victim’s characteristics are consistent with those of children who have been sexually abused.” Lattimer, 952 So.2d at (¶ 38).

¶ 25. The prosecution asked Mackey to discuss her credentials and “forensic interviewing” in general. Mackey testified that she was a licensed clinical social worker with a bachelor’s degree in psychology and a master’s degree in social work with an emphasis in children, youth, and families. Mackey received training in forensic interviewing through a program called “Finding Words.” At the time of trial, she was a member of the National Association of Social Workers and the American Professional Society on Abuse of Children. She also testified that she had attended workshops and programs on child sexual abuse, lectured at the University of Mississippi on the subject of child sexual abuse, and that she had been accepted as an expert witness in the fields of child abuse and forensic interviewing. When the prosecution tendered Mackey as an expert in forensic interviewing, using the “Finding Words” technique, and child abuse, Williams conducted additional voir dire.

¶ 26. During Williams’s voir dire, Mack-ey testified that, on occasion, she had been accepted as an expert in both forensic interviewing and child sexual abuse and, sometimes, only as an expert in forensic interviewing, depending on the circumstances. She also testified that she had no published articles and that she was not a member of any national forensic interviewing association. Ultimately, the circuit court overruled Williams’s objection and allowed Mackey to testify as an expert witness.

¶ 27. Applying the standards of M.R.E. 702, and our familiar standard of review, we cannot conclude that the circuit court abused its discretion or that its decision to accept Mackey as an expert witness was clearly wrong. Mackey possessed specialized knowledge through her education, training, and her professional experience in the field of forensic interviewing. Additionally, her knowledge in the form of her opinion, could have been helpful to the jury in deciding whether Jane was sexually abused by Williams. We also agree with the circuit court that Mackey’s opinion was based on sufficient facts, and that her testimony was the product of reliable principles and methods. Further, we can find no indication that Mackey failed to reliably apply the principles and methods of forensic interviewing to the facts of the case. Mackey was suitably positioned to opine that characteristics of Jane’s interview statements were consistent with sexually abused children.

TV. THAT THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S MOTION FOR A NEW TRIAL AND IN THE ALTERNATIVE FOR A JUDGMENT NOT [SIC] WITHSTANDING THE VERDICT.

¶28! Finally, Williams contends that there was insufficient evidence to support the verdict and that the verdict was contrary to the overwhelming weight of the evidence. In considering Williams’s contention that there was insufficient evidence to support the verdict, we must consider all of the evidence, not just the evidence which supports the State’s case, in the light most favorable to the State. May v. State, 460 So.2d 778, 781 (Miss.1984). If there is substantial evidence in the record of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions regarding the guilt of the defendant, we have no authority to disturb the jury’s verdict. Id.

¶ 29. The jury heard ample evidence to convict Williams. The jury heard Jane’s testimony in which Jane described the various inappropriate ways Williams touched her. The jury also heard Williams’s recorded phone conversations with Jane. Accordingly, we cannot find that the circuit court erred when it overruled Williams’s motion for JNOV.

¶ 30. In claiming that the verdict was contrary to the overwhelming weight of the evidence, Williams takes issue with the circuit court’s decision to overrule his motion for new a trial. “A motion for a new trial seeks to vacate the judgment on grounds related to the weight, not sufficiency, of the evidence.” Verner v. State, 812 So.2d 1147(¶ 6) (Miss.Ct.App.2002). Further, “[a] motion for a new trial is addressed to the trial court’s sound discretion.” Fleming v. State, 732 So.2d 172(¶ 37) (Miss.1999). This Court may only reverse the circuit court’s decision if the circuit court abused its discretion when it overruled Williams’s motion for a new trial. Smith v. State, 868 So.2d 1048(¶ 11) (Miss.Ct.App.2004).

¶ 31. True enough, Williams testified that he did not ever touch Jane inappropriately. However, as we discussed above, there was ample evidence to support the jury’s resolution. “Matters regarding the credibility and weight to be accorded the evidence are to be resolved by the jury.” Verner, 812 So.2d at (¶ 7). ‘Where there is conflicting testimony, the jury is the judge of the credibility of the witnesses.” Bessent v. State, 808 So.2d 979(¶ 21) (Miss.Ct.App.2001). The testimony of a single uncorroborated witness can sustain a conviction even though there may be more than one witness testifying to the contrary. Verner, 812 So.2d at (¶ 7). Accordingly, we find no merit to this issue.

¶ 32. THE JUDGMENT OF THE PA-NOLA COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, GRATIFICATION OF LUST, AND SENTENCE OF FIFTEEN YEARS; COUNT II, GRATIFICATION OF LUST, AND SENTENCE OF FIVE YEARS TO RUN CONCURRENTLY WITH THE SENTENCE IN COUNT I; COUNT III, GRATIFICATION OF LUST, AND SENTENCE OF FIVE YEARS TO RUN CONCURRENTLY WITH THE SENTENCE IN COUNTS I AND II; COUNT IV, SEXUAL BATTERY, AND SENTENCE OF FIVE YEARS TO RUN CONSECUTIVELY TO THE SENTENCES IN COUNTS I, II, AND III; COUNT V, SEXUAL BATTERY, AND SENTENCE OF FIVE YEARS TO RUN CONCURRENTLY WITH THE SENTENCE IN COUNT IV; COUNT VI, SEXUAL BATTERY, AND SENTENCE OF FIVE YEARS TO RUN CONCURRENTLY WITH THE SENTENCE IN COUNTS IV AND V; COUNT X, SEXUAL BATTERY, AND SENTENCE OF FIVE YEARS TO RUN CONCURRENTLY WITH THE SENTENCES IN COUNTS IV, V, AND VI; COUNT XI, SEXUAL BATTERY, AND SENTENCE OF FIVE YEARS TO RUN CONCURRENTLY WITH THE SENTENCES IN COUNTS IV, V, VI, AND X; AND COUNT XII, SEXUAL BATTERY, AND SENTENCE OF FIVE YEARS OF POST-RELEASE SUPERVISION TO RUN CONSECUTIVELY TO THE SENTENCES IN COUNTS IV, V, VI, X, AND XI, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . We use a fictitious name to protect Jane’s identity. Counts one through twelve in the indictment charged various sex offenses when Jane was between twelve and fourteen years old.

      . The Family Crisis Center is a non-profit private agency. It provides free forensic interviewing services, therapy services, and parenting classes.

      . To be entirely clear, Mackey also testified that no such organization existed.