source: Caselaw Access Project

author: LEE, P.J.,

license: Public Domain

text:
    Yalanda JOHNSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2009-KA-01287-COA.
    Court of Appeals of Mississippi.
    Sept. 7, 2010.
    Rehearing Denied Dec. 14, 2010.
    Certiorari Denied April 14, 2011.

      Hunter Nolan Aikens, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before LEE, P.J., BARNES and ROBERTS, JJ.
   LEE, P.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Yalanda Johnson was found guilty in the Lincoln County Circuit Court of aggravated assault. Johnson was sentenced to ten years in the custody of the Mississippi Department of Corrections, with seven years suspended, three years to serve, and five years of supervised probation. Johnson was also ordered to pay a $2,500 fine and $250 in restitution. Johnson filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which was denied by the trial court. Johnson now appeals her conviction, alleging the following errors: (1) the trial court substantively amended the indictment; (2) the evidence was insufficient to support the verdict; and (3) the verdict is against the overwhelming weight of the evidence.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Charity Plaisance, an area supervisor for Speedee Cash, received information that Johnson, an employee of the Speedee Cash in Brookhaven, Mississippi, had stolen office equipment and written loans to family members without supervisor approval. On April 17, 2008, Plaisance confronted Johnson at the Brookhaven store, and the situation escalated after Johnson denied having violated company policy. Johnson began shouting at Plaisance, who backed away and fell to the floor between a desk and the wall. While Plaisance was on the floor attempting to shield herself, Johnson hit Plaisance in the back of the head several times with a plastic telephone receiver. Plaisance’s head also hit a neon sign hanging in the store window. The parties disputed whether Johnson deliberately pushed Plaisance into the sign or whether Plaisance’s head hit the sign as she backed away from Johnson.

¶ 4. While Plaisance was still on the floor, Johnson called and told her mother that she would need to be picked up from jail because she had just beaten her supervisor. When the police and medical assistance arrived, Plaisance was taken to the hospital and treated for her injuries. She sustained a bruise on her arm and two head lacerations that required four staples each. Johnson did not require medical treatment and was taken into custody.

DISCUSSION

I. INDICTMENT

¶5. Johnson was indicted for aggravated assault under Mississippi Code Annotated section 97-3-7 (Rev.2006). The indictment did not state under which subsection the charge of aggravated assault was brought; however, the State specified that it was proceeding under section 97-3-7(2)(a). Johnson argues that the trial court erred by indirectly amending the indictment during trial to allow the State to proceed under section 97-3-7(2)(b) rather than section 97-3-7(2)(a).

¶ 6. A trial court may not alter the substance of the charge against the defendant by directly or indirectly amending the indictment. Rushing v. State, 753 So.2d 1136, 1146 (¶ 47) (Miss.Ct.App.2000) (citing Quick v. State, 569 So.2d 1197, 1199 (Miss. 1990)).

¶ 7. Johnson’s indictment stated that she “did wilfully, unlawfully, and feloniously attempt to cause serious bodily injury to [Plaisance] by beating her about the head with a telephone and slamming her head against a hard object, contrary to and in violation of [sjection 97-3-7.... ”

¶ 8. Section 97-3-7(2) states:

A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm....

¶ 9. During her motion for a directed verdict, Johnson argued that the State had failed to prove she was guilty of aggravated assault under section 97-3-7(2)(a). In denying the motion, the trial court stated: “the injuries which were sustained by Ms. Charity Plaisance have been testified to, and it is within the province of the jury to determine whether or not the telephone was a sufficient bludgeoning instrument....” The following exchange then took place between the trial court and Johnson’s attorney:

BY [JOHNSON’S ATTORNEY]: Your Honor, are you then changing the Indictment from a 2(a) to a 2(b) Indictment? Because it was our understanding that the State was pursuing it as a 2(a) Indictment, not a 2(b)....
BY THE COURT: I’m not changing the Indictment to anything....

The trial court also questioned the State as to which subsection that it was proceeding under, and the State responded subsection 2(a).

10. Johnson argues that despite the trial court’s statement that it was not altering the indictment, the statement that the jury must decide if “the telephone was a sufficient bludgeoning instrument” showed that the trial court was requiring proof under section 97-3-7(2)(b) — assault “with a deadly weapon.” Johnson argues that as a result of the trial court’s statement, jury instruction nine was erroneously proposed by the defense and granted by the trial court. Jury instruction nine states: “It is a question of fact for you to determine whether the telephone receiver and/or the neon sign casing, claimed to have been used by Yalanda Johnson, constituted a means likely to produce death or serious bodily harm.” As this instruction was proposed by Johnson, we must note that “[i]t is a familiar rule of law that one may not complain of his own instruction.” Caston v. State, 823 So.2d 473, 508 (¶ 121) (Miss.2002) (quoting Hall v. State, 420 So.2d 1381, 1386 (Miss.1982)).

¶ 11. Johnson proposed jury instruction nine and cannot now complain that the trial court erred in granting the instruction. Nevertheless, we find that any possible confusion caused by jury instruction nine was remedied by the State’s aggravated-assault instruction, which followed the language of section 97-3-7(2)(a). Also, an instruction was given on the meaning of “serious bodily injury,” which is an element of section 97 — 3—7(2)(a).

¶ 12. When reviewing a trial court’s decision regarding the denial or granting of jury instructions, “the instructions actually given must be read as a whole.” Beard v. State, 795 So.2d 551, 553 (¶ 9) (Miss.Ct.App.2001). “When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Id. (quoting Fielder v. Magnolia Beverage Co., 757 So.2d 925, 929 (¶ 10) (Miss.1999)). We find that when taken as a whole, the jury instructions followed the indictment and fairly announced the law of the case. This issue is without merit.

II. LEGAL SUFFICIENCY OF THE EVIDENCE

¶ 13. Johnson next argues that the trial court erred in denying her motion for a JNOV because the State failed to prove the elements of aggravated assault. “[I]t is a fundamental principle of law that jury verdicts will not be disturbed except under the most dire of circumstances.” King v. State, 798 So.2d 1258, 1261 (¶ 12) (Miss.2001) (citing Manning v. State, 735 So.2d 323, 333 (¶ 10) (Miss.1999)). For this Court to uphold the denial of a motion for a JNOV, the evidence must show “beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005). In determining whether a conviction has sufficient support, the evidence is considered in the light most favorable to the State. King, 798 So.2d at 1261 (¶ 12). If a rational trier of fact could have found, beyond a reasonable doubt, that the essential elements of the crime existed, the verdict will be beyond the court’s authority to disturb. Id.

¶ 14. Plaisance testified that Johnson pushed her head into a neon sign hanging in the window and hit her multiple times in the back of the head with a telephone receiver. The jury also heard testimony that Johnson sustained no injuries, while Plaisance required medical attention for injuries to both her head and arm. A rational trier of fact, viewing this evidence in the light most favorable to the State, could have found beyond a reasonable doubt that Johnson was guilty of committing all the elements set forth in section 97-3-7(2)(a). Therefore, this issue is without merit.

III. WEIGHT OF THE EVIDENCE

¶ 15. Johnson argues that the trial court erred in denying her motion for a new trial because the evidence did not support the jury’s verdict of aggravated assault. She argues that, at the most, the evidence supported a conviction of simple assault.

¶ 16. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18).

¶ 17. Viewing the evidence in the light most favorable to the verdict, we find the verdict is not against the overwhelming weight of the evidence. At trial, Johnson admitted that after Plaisance confronted her about the alleged violations of company policy, she began yelling at Plai-sance. Johnson further admitted she hit Plaisance in the back of the head with a telephone receiver. The parties disputed the number of times Johnson hit Plai-sance. Johnson testified that she only hit Plaisance once or twice and that she was not seriously trying to injure Plaisance. Plaisance, however, testified that she was hit approximately six times.

¶ 18. The jury received instructions on aggravated assault, simple assault, and self-defense; and the testimony at trial presented a factual dispute for the jury to resolve. It is the jury’s duty to weigh a witness’s credibility and to resolve questions of fact. Davis v. State, 866 So.2d 1107, 1112 (¶ 17) (Miss.Ct.App.2008). Looking at the evidence in the light most favorable to the verdict, we cannot find that allowing the jury’s verdict to stand would sanction an unconscionable injustice. Accordingly, this issue is without merit.

¶ 19. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THREE YEARS TO SERVE, SEVEN YEARS SUSPENDED, AND FIVE YEARS OF SUPERVISED PROBATION AND TO PAY A $2,500 FINE AND $250 TO THE MISSISSIPPI CRIME VICTIMS’ COMPENSATION FUND, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

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


author: MAXWELL, J,

text:
    Percy BRIDGEMAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01389-COA.
    Court of Appeals of Mississippi.
    Nov. 2, 2010.
    Rehearing Denied April 19, 2011.

      George T. Holmes, Leslie S. Lee, Jackson, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, Jackson, attorney for appel-lee.
    Before MYERS, P.J., IRVING and MAXWELL, JJ.
   MAXWELL, J,

for the Court:

¶ 1. A jury in the Madison County Circuit Court found Percy Bridgeman guilty on two counts of statutory rape. On appeal, Bridgeman claims the circuit court improperly admitted the eight-year-old victim’s out-of-court statements. He also argues the post-trial discovery of a government witness’s prior embezzlement conviction requires a new trial.

¶ 2. We find the child’s out-of-court statements fall within Mississippi Rule of Evidence 803(25) — the tender-years hearsay exception. We also conclude the newly discovered embezzlement conviction is merely impeachment evidence and does not warrant a new trial. We likewise reject Bridgeman’s remaining assignments of error and affirm.

FACTS

¶ 3. From 2005 to 2006, L.H. was a student at Canton Elementary School. She lived with her mother and her two younger half-siblings. At the time, L.H.’s mother dated Bridgeman, who was the natural father of L.H.’s two siblings but not L.H. In April 2006, a Madison County grand jury charged Bridgeman with the statutory rape of L.H.

I. L.H. testimony

¶ 4. L.H. explained that Bridgeman “touched her in the wrong place.” The first encounter occurred when she was in her bedroom at her grandparents’ house. Bridgeman made her take off her clothes, then took off his own. He touched her “private part” first with his finger and then with his “private part.” L.H. testified that his “private part” went “inside” her “private part.” She recalled that this incident occurred soon before her eighth birthday in April 2005.

¶ 5. She claimed that an almost identical incident of sexual penetration took place later in a motel room. L.H. remembered this second encounter happened in January 2006 because it was near the time when her mother died. She claimed Bridgeman sexually assaulted her on other occasions as well. According to L.H., no one else had improperly touched her. L.H. was eleven years old when she testified at Bridgeman’s trial.

II. L.H. Owt-of-Court Statements

¶ 6. Prior to trial, the circuit court held a hearing on the admissibility of L.H.’s statements to (1) Benae Jackson, an employee of the Madison County Department of Human Services (DHS); (2) Rhonda Poe, the Canton Elementary principal; and (3) Lieutenant Shelby Burnside, an investigator with the Canton Police Department. After hearing testimony from these three witnesses, the circuit court admitted their recitations of L.H.’s prior statements under the tender-years exception to the hearsay rule. See M.R.E. 803(25).

¶ 7. Jackson testified that during late January 2006, the Madison County Department of Human Services received an anonymous phone call from a concerned parent. The parent’s child was in L.H.’s class and had heard stories leading the parent to suspect sexual abuse. Jackson met with L.H. and asked her “if she knew the difference between good and bad touches.” L.H. responded that she did, and Jackson then asked “if she had experienced bad ... touches.” Jackson did not indicate whether L.H. responded, but she did maintain that L.H. was “reluctant” to answer. Jackson provided L.H. with a school contact if she wished to speak further about being “touched in a bad way.”

¶ 8. Soon after, the school principal, Poe, met privately with L.H. in her office. The meeting occurred shortly after L.H.’s teacher raised suspicions that L.H. may have been a victim of sexual abuse. According to Poe, L.H. told her that Bridgeman had been “touching her inappropriately and doing things that were inappropriate.” L.H. explained that on weekends her family often stayed in motel rooms, where Bridgeman touched her. L.H. did not specifically describe the touching, and Poe did not attempt to elicit additional details. After meeting with L.H., Poe contacted DHS.

¶ 9. Jackson returned to the school for a second interview with L.H., who repeated her account of inappropriate touchings but provided no further details. Jackson later interviewed L.H. while Lieutenant Burnside observed from a separate room. This time L.H. identified two occasions when she had been sexually assaulted. The first incident occurred in her bedroom at her grandparents’ house. The most recent encounter happened in a motel room, when she and Bridgeman were alone. L.H. explained that Bridgeman had gotten on top of her and that penetration had occurred. She claimed similar sexual assaults had taken place in motel rooms on other occasions between these two incidents.

¶ 10. Like Jackson, Lieutenant Burnside recounted L.H.’s description of being penetrated in her “private part.” He also testified that L.H. identified specific locations and time periods. The first sexual assault occurred at her grandparents’ house. L.H. claimed the same thing happened more than five other times, with the most recent assault occurring in a motel room when L.H.’s mother had taken the other two children to a doctor’s appointment.

¶ 11. Dr. Janice Bacon examined L.H. after a referral from DHS. She also spoke directly with L.H. about her encounters with Bridgeman. Dr. Bacon testified that L.H. indicated Bridgeman “did bad touches” and that Bridgeman “stuck his finger in her vaginal area[.]” L.H. explained these events took place at her grandparents’ house and in motel rooms.

III. Medical Evidence

¶ 12. Dr. Bacon testified as an expert in pediatrics. Based on results of vaginal and rectal examinations and her conversations with L.H., Dr. Bacon concluded L.H. had been sexually abused. She reached this opinion though it appeared to her that L.H.’s hymen was still intact.

¶ 13. Test results revealed L.H. had contracted chlamydia, which Dr. Bacon described as “primarily” a sexually transmitted disease. She explained a newborn child could possibly contract the disease from passing through an infected mother’s birth canal. But Dr. Bacon, who had been L.H.’s pediatrician since birth, believed that if L.H. had contracted the disease at birth, she would have manifested noticeable symptoms at a younger age. In Dr. Bacon’s opinion, L.H. received the disease through “sexual transmission.”

¶ 14. Dr. Robert Foose, who had treated Bridgeman, testified that in December 2005, Bridgeman complained of testicular swelling and pain and a urethral discharge. Dr. Foose believed the most likely diagnosis was chlamydia. Dr. Foose also observed from Bridgeman’s medical records that Bridgeman had admitted having a sexually transmitted disease in the past. Dr. Foose did not identify the particular disease.

IV. Bridgeman’s Testimony

¶ 15. Bridgeman testified in his own defense. He denied raping or inappropriately touching L.H. and denied he had ever been diagnosed with chlamydia.

PROCEDURAL HISTORY

¶ 16. The jury found Bridgeman guilty on both counts of statutory rape. The court sentenced him to twenty-five years on each count, with the sentences to run concurrently. Bridgeman filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial. The circuit court denied the motion. On appeal Bridgeman claims: (1) the circuit court erred in admitting hearsay evidence under the tender-years exception; (2) the court erred by not granting a new trial due to newly discovered evidence; and (3) the verdict is not supported by sufficient evidence or is against the overwhelming weight of the evidence.

DISCUSSION

I. L.H. Statements

¶ 17. Bridgeman argues the circuit court erred in admitting L.H.’s statements to Poe, Jackson, Lieutenant Burnside, and Dr. Bacon. In reviewing his claim, we note that because L.H. testified at trial and was subject to full cross-examination, the Confrontation Clause is not implicated. See Crawford v. Washington, 541 U.S. 36, 59 n. 9, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); see also United States v. Owens, 484 U.S. 554, 560, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988) (introduction of out-of-court statements, even if unreliable, does not violate the Confrontation Clause where declarant testifies at trial subject to full and effective cross-examination); Story v. Collins, 920 F.2d 1247, 1255 (5th Cir.1991) (where victim in child-sexual-abuse case testified at trial subject to full cross-examination, Confrontation Clause not violated by testimony of another witness concerning victim’s extrajudicial statements); Eakes v. State, 665 So.2d 852, 866 (Miss.1995).

¶ 18. While the Confrontation Clause was not violated, we still must determine whether the questioned testimony offends state hearsay rules. Crawford, 541 U.S. at 51, 124 S.Ct. 1354. Mississippi Rule of Evidence 801(c) defines hearsay as “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.” The hearsay rule excludes evidence meeting this definition unless it falls within an exception provided by law. M.R.E. 802.

A. The Tender-Years Exception

¶ 19. After hearing from Poe, Jackson and Lieutenant Burnside, the circuit judge concluded their testimony about L.H.’s statements was admissible under Rule 803(25) — the tender-years hearsay exception. Under Mississippi Rule of Evidence 803(25):

A statement made by a child of tender years describing any act of sexual contact performed with or on the child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness: provided, that when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

¶ 20. For purposes of Rule 803(25), we look to “the age of the child at the time the relevant statement was made rather than the age of the child at the time that testimony is given at trial.” Withers v. State, 907 So.2d 342, 348 (¶ 14) (Miss.2005). “[Tjhere is a rebuttable presumption that a child under the age of twelve is of tender years.” Id.

¶21. Since L.H. was eight years old when she made the statements, she qualifies as a child of tender years. As to other considerations under Rule 803(25), L.H.’s statements obviously described sexual contact performed on her by Bridgeman. And because L.H. testified at trial, no inquiry into her availability is necessary. So the remaining question under Rule 803(25) turns on the reliability of L.H.’s statements.

B. Reliability

¶ 22. The comment to Rule 803(25) cites twelve factors from the United States Supreme Court’s decision in Idaho v. Wright, 497 U.S. 805, 822, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), courts should consider in assessing reliability. These factors are not exhaustive, and “no mechanical test is available.” Grimes v. State, 1 So.3d 951, 955 (¶ 10) (Miss.Ct.App.2009) (quoting Withers, 907 So.2d at 350 (¶ 23)). In Wright, the Supreme Court observed “the unifying principle is that these factors relate to whether the child declarant was particularly likely to be telling the truth when the statement was made.” Wright, 497 U.S. at 822, 110 S.Ct.3139. “Corroborating evidence may not be used as an indicia of reliability.” M.R.E. 803(25) cmt.

¶ 23. Following a Rule 803(25) hearing, conducted at the State’s request, the circuit court found sufficient indicia of reliability and admitted L.H.’s statements made to these three witnesses. The circuit judge did not make specific findings on each factor, but he considered all twelve and found “enough [evidence] there that it’s reliable, it’s consistent, spontaneous, the credibility of the witnesses and it’s the opinion of the Court, very high [sic].”

¶ 24. Bridgeman attacks the reliability of L.H.’s out-of-court statements by pointing to testimony from Maria Thames, a therapist at the Child Advocacy Center. Bridgeman called Thames in his case-in-chief, and her trial testimony was based largely on her recollections gleaned from her report of her forensic interview of L.H. Bridgeman focuses on Thames’s testimony that L.H. denied being touched inappropriately. Bridgeman argues that because this denial conflicts with L.H.’s alleged statements to Poe, Jackson, and Lieutenant Burnside, L.H.’s disclosures to these three witnesses should have been excluded.

¶ 25. But Thames’s testimony was not before the circuit court when it considered the admissibility of L.H.’s prior statements. The record shows the circuit judge asked defense counsel twice if he desired to call witnesses or put on evidence at the Rule 803(25) hearing. However, Bridge-man neither countered with Thames, nor made a proffer of her proposed conflicting testimony when responding to the State’s request for a pre-trial ruling on the admissibility of L.H.’s statements. Because Thames’s testimony was not before the court when it admitted L.H.’s prior statements, we assess the reliability aspect of the tender-years exception for abuse of discretion by examining Poe’s, Jackson’s and Lieutenant Burnside’s recitations of L.H.’s statements.

¶ 26. According to Lieutenant Burnside, L.H. had no difficulty remembering details of the sexual abuse. L.H. was calm through most of the interview but toward the end “broke down and started crying.” At that point, the interview was terminated. Lieutenant Burnside further testified that no “specific techniques” were used to gather the statement from L.H., and he had no reason to believe L.H. falsely accused Bridgeman.

¶ 27. Jackson emphasized that she followed protocol in conducting her interview, and L.H. had no difficulty remembering the details of what occurred. Jackson explained that L.H.’s statements were “spontaneous” and that L.H. was very fearful, withdrawn, and at times “crying uncontrollably” when she made the disclosures. She was aware of no motive for L.H. to lie.

¶ 28. According to Poe, L.H. was “hanging her head” and “really shy-like” when she disclosed the abuse. She maintained that no suggestive techniques were used in speaking with L.H. As Poe put it, “I just let her tell me.”

¶ 29. Poe’s, Jackson’s and Lieutenant Burnside’s versions of L.H.’s descriptions of the incidents of abuse identify specific acts Bridgeman performed on L.H. They also point out her grandparents’ house and motel rooms where the assaults occurred. The circuit judge’s finding of reliability is further strengthened by the fact that L.H.’s statements to multiple witnesses remained mostly consistent. There are no indications of suggestive interview techniques, and Jackson’s testimony about L.H.’s disclosures of sexual penetration is corroborated by Lieutenant Burnside, who accompanied Jackson during one of the interviews. And there is no apparent motive for L.H. to fabricate the assaults.

¶ 80. Bridgeman suggests Thames’s testimony about her interview with L.H. renders unreliable these other recitations of L.H.’s prior statements. But Thames described her interview with L.H. as “inconclusive and incomplete” due to the fact that Thames terminated the interview when L.H. fell asleep. Thames was not even sure whether she had asked L.H. specifically about Bridgeman. And since reliability of L.H.’s prior statements is the crux of our inquiry, we simply cannot disregard that Thames indicated in her report that “strong consideration should be given to [L.H.’s] previous disclosures.”

¶ 31. Because of the lack of evidence disputing that L.H. was particularly likely to be telling the truth when the contested statements were made, we find no abuse of discretion in the circuit court’s admission of L.H.’s statements to these witnesses.

C. Dr. Bacon’s Testimony

¶ 32. Bridgeman did not object to Dr. Bacon’s recital of L.H.’s allegations of Bridgeman’s sexual abuse. Though the issue is waived, we note the hearsay exception found in Rule 803(4) applies to statements made in furtherance of medical diagnosis and treatment. The scope of Rule 803(4) encompasses a child’s identification of a molester under the theory that part of the treatment of an abused child includes reasonable efforts to isolate the child from the abuser. Rowlett v. State, 791 So.2d 319, 321 (¶ 4) (Miss.Ct.App.2001) (citing Hennington v. State, 702 So.2d 403, 415 (¶ 49) (Miss.1997)). Waiver aside, we find Dr. Bacon’s testimony about L.H.’s disclosure of Bridgeman’s abuse was admissible.

II. Jackson’s Prior Conviction

¶33. Bridgeman next contends he is entitled to a new trial because of “newly discovered evidence” that a witness for the State had an undisclosed 2001 felony embezzlement conviction. Following trial, Bridgeman’s attorney learned of this impeaching information “by chance” and raised the issue of Jackson’s felony conviction in his post-trial motion.

¶ 34. Jackson had testified at trial about interviews she conducted with L.H., and the court permitted Jackson to recount L.H.’s statements to her. Bridge-man contends a diligent search would not have revealed Jackson’s embezzlement conviction because the amended judgment of conviction and the court’s sentencing order erroneously listed her last name as “Johnson.” At a post-trial motion hearing, Jackson testified that her last name had never been Johnson, and the mistake must have been a typographical error. The circuit court rejected the newly discovered impeachment evidence as a basis for granting a new trial.

A. Brady and Its Progeny

¶ 35. In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that due process requires the government to disclose favorable, material evidence not otherwise discoverable through due diligence. We note Bridgeman neither suggests the State or its investigators had prior knowledge of Jackson’s conviction, nor does he claim the prosecution in any way violated its affirmative duty to provide impeachment evidence under Brady and its progeny. Still we find it prudent to point out he has no cognizable claim under this line of cases.

¶ 36. The government’s duty under Brady extends to evidence impeaching the credibility of government witnesses. Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). A Brady violation can occur even if evidence is withheld in good faith. Brady, 373 U.S. at 87, 83 S.Ct. 1194. But a Brady suppression only occurs when prosecutors fail to turn over evidence known to the government or police investigators. Youngblood v. West Virginia, 547 U.S. 867, 869-70, 126 S.Ct. 2188, 165 L.Ed.2d 269 (2006) (citing Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (“[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.”)).

¶ 37. Because the judgment and sentencing order erroneously listed Jackson’s name as “Johnson,” and absent the slightest allegation of government misconduct, we find no Brady suppression occurred.

¶ 38. But even assuming an impermissible suppression, Bridgeman must convince us there is a “reasonable probability” the result of his trial would have been different had the conviction been disclosed to the defense. Kyles, 514 U.S. at 434, 115 S.Ct. 1555. Under this hypothetical circumstance, “[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Id. Based on the evidence before us, including the victim’s testimony, the corroborative testimony of Lieutenant Burnside, who accompanied Jackson during one of the interviews, and the favorable inferences drawn from Dr. Bacon’s and Dr. Foose’s medical testimony, we find the merely impeaching evidence does not undermine confidence in the jury’s guilty verdict. Therefore, even assuming impermissible suppression, the touchstone of materiality is not met, and no Brady violation exists.

¶ 39. Because there is no cognizable Brady claim, we review Bridgeman’s post-trial discovery of Jackson’s embezzlement conviction under Mississippi’s standard for newly discovered evidence.

B. Newly Discovered Evidence

¶ 40. A defendant is entitled to a new trial based on newly discovered evidence where: (1) the evidence will probably produce a different result or verdict; (2) the evidence has been discovered since trial and could not have been discovered before trial by the exercise of due diligence; (3) it is material to the issue; and (4) it is not merely cumulative or impeaching. Ormond v. State, 599 So.2d 951, 962 (Miss.1992). We review a trial court’s grant or denial of a motion for a new trial for abuse of discretion. Id.

1141. The circuit judge cited this four-pronged test and found “the newly discovered evidence would not change the result, could have been discovered before trial by exercising due diligence, is not material to the issue, and is merely impeaching.” He also noted other testimony and evidence corroborated Jackson’s testimony regarding L.H.’s disclosure of sexual abuse.

¶ 42. Our supreme court addressed the issue of post-trial discovery of impeachment evidence in Ormond. In Ormond, the defendant was charged with raping his girlfriend’s child. The assault allegedly occurred in February 1988. Around one month later, a doctor diagnosed the young girl with gonorrhea. Ormond, 599 So.2d at 954. At trial, the State offered medical evidence that the defendant had been diagnosed with the same sexually transmitted disease. Id. at 957-58. The mother testified she too was tested for gonorrhea in 1988, but she claimed results showed she did not have the disease. Id. at 954. Following trial, defense counsel alleged the mother had been dishonest about having the disease around the time of the assault. Id. at 961-62. The trial court held a hearing on the post-trial motion where the mother’s medical records were offered, which showed she had been diagnosed and provided notice in 1988 that she had gonorrhea. Id. The supreme court found this newly discovered evidence did not warrant reversal because it only served to impeach the mother’s testimony. Id.

¶ 43. The holding in Ormond comports with the widely accepted principle that the post-trial discovery of impeachment evidence is not normally a basis for granting a motion for a new trial. See, e.g., Mesar-os! v. United States, 352 U.S. 1, 9, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956); United States v. Reedy, 304 F.3d 358, 372 (5th Cir.2002) (upholding district court’s denial of motion for new trial based on newly discovered impeachment evidence); United States v. Pena, 949 F.2d 751, 758 (5th Cir.1991) (“Evidence which merely discredits or impeaches a witnesses] testimony does not justify a new trial.”); United States v. Champion, 813 F.2d 1154, 1171 (11th Cir. 1987) (“Newly discovered impeaching evidence is insufficient to warrant a new trial.”); United States v. Johnson, 596 F.2d 147,148^9 (5th Cir.1979).

¶ 44. Given L.H.’s testimony, the medical evidence, and the abundance of additional corroborating testimony convincingly showing Bridgeman’s guilt, we are unable to find that having knowledge of Jackson’s conviction, the jury would have probably found Bridgeman not guilty. Because we conclude the newly discovered evidence is merely impeaching, we find no abuse of discretion by the circuit court’s denial of Bridgeman’s motion for a new trial.

III. Sufficiency and Weight of the Evidence

¶45. Bridgeman argues his conviction is not supported by sufficient evidence or the weight of the evidence. When addressing the legal sufficiency of evidence, we consider all evidence in a light most favorable to the State. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). Credible evidence consistent with guilt must be accepted as true. The State receives the benefit of all favorable inferences reasonably drawn from the evidence. Jones v. State, 20 So.3d 57, 64 (¶ 16) (Miss. Ct.App.2009) (citing Hughes v. State, 983 So.2d 270, 275-76 (¶¶ 10-11) (Miss.2008)). The jury resolves matters of weight and credibility. Reversal is proper when reasonable and fair-minded jurors could only find the accused not guilty. Id. Our primary duty in considering the sufficiency of the evidence is to determine whether from the evidence presented, it would be impossible for a reasonable juror to find the defendant guilty. Ducksworth v. State, 767 So.2d 296, 301 (¶10) (Miss.Ct.App. 2000).

¶ 46. The standard differs slightly when reviewing a claim based on the weight of the evidence challenging a trial court’s denial of a motion for a new trial. Under this standard, “we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). This court evaluates the evidence in the light most favorable to the verdict. Id. And we are required to accept all evidence consistent with the defendant’s guilt as true, along with any reasonable inferences that might be drawn from the evidence. Young v. State, 891 So.2d 813, 821 (¶ 21) (Miss.2005). “[T]he power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Bush, 895 So.2d at 844 (¶ 18).

¶ 47. To sustain a conviction under Mississippi Code Annotated section 97-3-65(l)(b) (Supp.2009), the State must prove beyond a reasonable doubt that Bridgeman had “sexual intercourse with a child ... under the age of fourteen (14) years[.]” The statute also requires proof that the child is twenty-four or more months younger than the defendant and is not his spouse. Id. “Neither the victim’s consent nor the victim’s lack of chastity is a defense to a charge of statutory rape.” Miss.Code Ann. § 97-3-65(2) (Supp.2009). The element of “sexual intercourse” is met where there is “a joining of the sexual organs of a male and female human being in which the penis of the male is inserted into the vagina of the female[.]” Miss. Code Arm. § 97-3-65(6) (Supp.2009).

¶ 48. Bridgeman was more than thirty years older than L.H. and not her spouse. And although she used a more age-appropriate term, “private part,” L.H. testified at trial that Bridgeman committed various sexual acts involving penetration of both his finger and penis into her vagina on or near the charged dates. Several witnesses who spoke with L.H. after the alleged sexual-abuse incidents also testified L.H. disclosed that Bridgeman had sexually assaulted her and that penetration occurred. Medical evidence likewise created a strong inference that Bridgeman had given L.H. a sexually transmitted disease. Thus, sufficient evidence exists to meet section 97-3-65(6)’s definition of “sexual intercourse.”

¶ 49. Viewing the evidence in the light most favorable to the guilty verdict, we find the testimony and medical evidence strongly support the two statutory rape convictions. Allowing the verdict to stand would not sanction an unconscionable injustice. Accordingly, we find the verdict is not against the overwhelming weight of the evidence.

¶ 50. For these reasons, we affirm.

¶ 51. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF CONVICTION OF TWO COUNTS OF STATUTORY RAPE AND SENTENCE OF TWENTY-FIVE YEARS ON EACH COUNT, WITH THE SENTENCES TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

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

      . To protect the identity of the child victim, we have substituted initials in place of her name.

      . The Wright factors include: "(1) whether there is an apparent motive on declarant’s part to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; (5) the timing of the declarations; (6) the relationship between the declarant and the witness; (7) the possibility of the declarant’s faulty recollection is remote; (8) certainty that the statements were made; (9) the credibility of the person testifying about the statements; (10) the age or maturity of the declarant; (11) whether suggestive techniques were used in eliciting the statement; and (12) whether the declarant’s age, knowledge, and experience make it unlikely that the declarant fabricated.” M.R.E. 803(25) cmt.


author: MYERS, J., CARLTON, J.,

text:
    Timothy M. GRIFFIN, Appellant v. Christopher B. EPPS, Appellee.
    No. 2010-CP-00087-COA.
    Court of Appeals of Mississippi.
    March 15, 2011.

      Timothy M. Griffin, Appellant, pro se.
    Office of The Attorney General by Jane L. Mapp, Jackson, attorney for appellee.
   MYERS, J.,

for the Court:

¶ 1. Timothy M. Griffin, an inmate with the Mississippi Department of Corrections (MDOC), petitioned the Rankin County Circuit Court for judicial review of a decision rendered by the MDOC through its Administrative Remedy Program (ARP). The circuit court dismissed Griffin’s petition as untimely filed. On appeal, we vacate the circuit court’s judgment and remand the case to the circuit court for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 28, 2000, while serving a non-mandatory three-year sentence for receiving stolen property, Griffin pleaded guilty in the Rankin County Circuit Court to attempted armed robbery and burglary of dwelling house. The circuit court sentenced Griffin to twenty-years in the MDOC for each offense, with both sentences to run concurrently with each other and consecutively to the three-year sentence Griffin was already serving.

¶ 3. Griffin thereafter initiated a grievance through the MDOC’s ARP, contending that only the first ten years of his attempted armed-robbery sentence should be treated as mandatory, and he was entitled to earned time. Griffin received a final decision from the ARP which held that the sentence he received for the armed-robbery conviction was mandatory in its entirety and that he is not eligible for parole or earned time. Griffin acknowledged receipt for the “Third Step Response” and “Certificate of Completion” on August 20, 2009.

¶ 4. Griffin initially sought judicial review of the ARP decision in the Circuit Court of Sunflower County, Mississippi. His petition was stamped filed on September 28, 2009. Griffin’s petition and affidavit of poverty were both notarized on September 21, 2009.

¶ 5. The Sunflower County Circuit Court entered an order on October 28, 2009, transferring the case to the Rankin County Circuit Court. On that same date, the State filed a response on behalf of MDOC Commissioner Christopher Epps and the MDOC, asserting that Griffin had failed to state a claim upon which relief could be granted because the statutory law controls sentence computation, and pursuant to the applicable statute, Griffin’s twenty-year sentence for attempted armed robbery was not eligible for parole or earned time.

¶6. The Rankin County Circuit Court entered an order dismissing Griffin’s petition as untimely filed. On its own, the circuit court found that Griffin had failed to comply with Mississippi Code Annotated section 47-5-807 (Rev.2004), which provides: “Any offender who is aggrieved by an adverse decision rendered pursuant to any administrative review procedure ... may, within thirty (30) days after receipt of the agency’s final decision, seek judicial review of the decision.” According to the circuit court, when Griffin filed his petition in the Sunflower County Circuit Court on September 28, thirty-nine days had passed from when Griffin acknowledged receipt of the final ARP response.

¶ 7. Griffin appeals the Rankin County Circuit Court’s decision. Griffin contends that he submitted his petition to prison officials for mailing within the thirty-day period set forth by statute; thus, the prison mailbox rule should apply. In response, the State acknowledges that the record is insufficient to determine whether or not the circuit court properly dismissed Griffin’s petition as untimely filed. Both parties ask this Court to vacate the court’s judgment and remand the case to the court to determine whether Griffin submitted his petition for mailing within the thirty-day period allowed by statute.

DISCUSSION

¶ 8. In Maze v. Mississippi Department of Corrections, 854 So.2d 1090, 1092 (¶ 8) (Miss.Ct.App.2003), this Court extended the “prison mailbox rule” to civil filings by pro se prisoners seeking judicial review of administrative decisions. In Easley v. Roach, 879 So.2d 1041, 1042 (¶ 4) (Miss. 2004), the Mississippi Supreme Court agreed with this Court’s decision in Maze and held that “a pro se pleading is considered ‘filed’ when mailed by the inmate and not when it is received by the circuit clerk.” The Easley court further held that “neither an inmate’s certificate of service nor a notary stamp is sufficient as proof of the date mailed and that a prison mail log of legal mail is a more reliable source of the date of delivery.” Easley, 879 So.2d at 1043 (¶ 6) (citing Gaston v. State, 817 So.2d 613, 615-16 (¶ 5) (Miss.Ct.App.2002)). Finding no conclusive showing in the record of what date Arthur Easley submitted his petition to prison officials for mailing to the circuit clerk’s office, the supreme court vacated the circuit court’s order dismissing the petition as untimely filed and remanded the case to the circuit court to determine whether Easley had submitted his petition for mailing within thirty days after receipt of the MDOC’s final administrative decision. Id. at (¶¶ 6-7).

¶ 9. Similarly, all we have in the record in support of Griffin’s assertion that he timely submitted his petition for mailing are the notary stamps contained on Griffin’s petition and his affidavit of poverty. This is insufficient evidence. Id. at (¶ 6). Accordingly, we reverse the circuit court’s judgment and remand this case to the circuit court for proceedings consistent with Easley to determine whether Griffin submitted his petition for mailing within thirty days after his receipt of the agency’s final decision.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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

CARLTON, J.,

Dissenting:

¶ 11. I respectfully dissent from the majority. I agree with the trial court’s finding that Griffin failed to state a claim upon which relief could be granted because statutory law controls the sentence computation in this case. See Uniform Rule of Circuit and County Court 5.03 (explaining that the court will only hear an appeal from an administrative agency to determine if the order or judgment of the lower authority (1) was supported by substantial evidence; (2) was arbitrary or capricious; (3) was beyond the power of the lower authority to make; or (4) violated some statutory or constitutional right of the complaining party). The MDOC’s Administrative Remedy Program (ARP) notified Griffin of its decision, which was mandatory by statute; therefore, no basis for further review exists. Based upon the foregoing reason, I submit that a reversal and a remand of this case back to the trial court is judicially inefficient.


author: LEE, C.J.,

text:
    Menetra China Reed GOLLIDAY as Administratrix and on behalf of the wrongful Death Beneficiaries of Deovante Chance Meeks, Deceased, Appellant v. Ramesh PATEL, Dipak Jeram and Jay Jay, LLC, Appellees.
    No. 2010-CA-00167-COA.
    Court of Appeals of Mississippi.
    March 29, 2011.
    David Randall Wade, Jackson, attorney for appellant.
    Adam Stone, Jackson, attorney for ap-pellees.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. On February 16, 2008, Deovante Chance Meeks drowned in a Days Inn Hotel swimming pool located in Grenada, Mississippi. The hotel is owned and operated by Ramesh Patel, Dipak Jeram, and Jay Jay, LLC (collectively Patel). Mene-tra China Reed Golliday, as administratrix of Meeks’s estate, filed a wrongful-death suit in the Grenada County Circuit Court against Patel alleging various negligence claims resulting from Meeks’s death.

¶ 2. On September 1, 2009, Patel filed a motion for summary judgment and a motion to exclude testimony of Golliday’s expert, Thomas Ebro. The trial judge granted a partial summary judgment in Patel’s favor regarding Golliday’s theories of liability concerning the lack of a lifeguard and the lack of an emergency-response plan. The trial judge also barred Ebro from offering expert-opinion testimony in the field of swimming-pool-accident reconstruction. Golliday filed a notice of appeal. Since trial had been set for February 15, 2010, the trial judge entered an order to stay the proceedings pending appeal.

¶ 3. Golliday now appeals, asserting the following issues: (1) the trial judge erred in granting a partial summary judgment; (2) the trial judge abused his discretion in excluding Ebro’s testimony; and (3) the record supports the trial judge’s decision to enter the judgment as final pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure.

¶ 4. Finding that the trial judge erred in granting the Rule 54(b) final judgment, we find this case is not properly before this Court and decline to address Golliday’s remaining issues.

DISCUSSION

¶ 5. The trial judge entered its judgment as a final judgment pursuant to Rule 54(b). Rule 54(b) allows the trial judge to “direct the entry of a final judgment as to one or more but fewer than all of the claims or parties” in an action. M.R.C.P. 54(b). However, the trial judge may do so “only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment.” Id. Absent a Rule 54(b) certification, any judgment is not final if it “adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties.” Id. “A decision that leaves a portion of the claim pending as to all defendants does not fall within the ambit of Rule 54(b).” M.R.C.P. 54(b) cmt. The comment further encourages trial judges to refrain from entering a final judgment except in limited circumstances. Id. See also Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 512 So.2d 897, 900 (Miss. 1987) (“Rule 54(b) judgments must be reserved for rare and special occasions.”).

¶ 6. In Byrd v. Mississippi Power Co., 943 So.2d 108, 111-12 (¶ 10) (Miss.Ct.App.2006), this Court held that although there were multiple causes of action, where those causes of action arose “from a single set of facts and raise a limited number of issues,” granting a Rule 54(b) judgment “would result in piecemeal litigation.” See also Reeves Constr. & Supply, Inc. v. Corrigan, 24 So.3d 1077, 1083 (¶ 17) (Miss.Ct.App.2010). In this case, the trial judge entered a partial summary judgment on two theories of liability. Although this case involves multiple defendants, the claims asserted by Golliday are not complex. Golliday’s claims arise from a single set of facts, namely the drowning of Meeks.

¶ 7. We find that the trial judge improvidently granted the Rule 54(b) final judgment; therefore, this case is not properly before the Court. Consequently, we dismiss this appeal.

¶ 8. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: MAXWELL, J.,

text:
    CITY OF LAUREL, Mississippi and Mississippi Municipal Workers’ Compensation Group, Appellants v. Gavin GUY, Appellee.
    No. 2010-WC-00444-COA.
    Court of Appeals of Mississippi.
    March 29, 2011.

      Louie Frederick Ruffin, Chadwick Lester Shook, Hattiesburg, attorneys for appellants.
    William H. Jones, Petal, attorney for appellee.
    Before IRVING, P.J., MYERS and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Although Gavin Guy suffered a 25% medical impairment to his left leg due to a work-related knee injury, the Administrative Judge (AJ) awarded him a 100% industrial loss of his left leg. The Workers’ Compensation Commission (Commission) affirmed. Because industrial loss, in contrast to medical loss, compensates for the loss in wage-earning capacity and because Guy presently earns $10,000 more a year, we find the award of 100% industrial loss to be unsupportable. Therefore, we reverse and remand the decision of the Commission.

BACKGROUND

¶ 2. While working as a patrolmen for the Laurel Police Department (Laurel), Guy injured his left knee apprehending a suspect fleeing from a nightclub brawl. He underwent numerous knee surgeries. Although he remained employed with Laurel, briefly as a K-9 officer and then back as a patrolman, he was concerned because he could no longer chase suspects or easily get in and out of his patrol car.

¶ 3. In 2006, Guy voluntarily left Laurel to take a job with the Petal Police Department (Petal) as a warrant officer. He was promoted to the Investigations Unit, a position that paid $10,000 a year more than his former position with Laurel. In 2007, Petal initiated physical testing for all its police officers, including Guy. Petal’s chief of police, Lee Shelbourn, accommodated Guy’s knee injury by allowing him to perform the test on a stationary bike instead of requiring him to run.

¶ 4. At the hearing before the AJ, Guy expressed concerns that his accommodation at Petal would not last long. Chief Shelbourn, sixty-one years old at the time of the hearing, was an at-will employee who potentially would not be reappointed by the mayor and city council after the next city election cycle. Further, Guy was concerned he might not be able to pass the bike test in the future.

¶ 5. The AJ found Guy’s numerous knee surgeries, his inability to continue as a patrol officer, and his need for special accommodation to pass the physical test given by Petal and most police forces all supported the finding that Guy had sustained a 100% industrial loss to his left leg.

¶ 6. The AJ found Guy’s present employment and higher salary did not weigh against finding a 100% industrial loss of Guy’s left leg because Chief Shelbourn could be replaced after next city election, leaving the possibility that Guy might be unable to pass the physical testing requirements under a new chief at Petal or with a different police force.

¶ 7. Both the Workers’ Compensation Commission (by 2-1 vote) and the circuit court affirmed the AJ’s decision.

LAW

I. Standard of Review

¶ 8. “The findings and order of the Workers’ Compensation Commission are binding on the Court so long as they are ‘supported by substantial evidence.’ ” Mitchell Buick v. Cash, 592 So.2d 978, 980 (Miss.1991) (quoting Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988)). “An appellate court is bound even though the evidence would convince that court otherwise if it were instead the ultimate fact finder.” Walker Mfg. Co. v. Butler, 740 So.2d 315, 320 (¶19) (Miss.Ct.App.1998) (citing Barnes v. Jones Lumber Co., 637 So.2d 867, 869 (Miss.1994)). “This Court will overturn a Commission decision only for an error of law or an unsupportable finding of fact.” Id. (quoting Ga. Pac. Corp. v. Taplin, 586 So.2d 823, 826 (Miss.1991)).

II. Workers’ Compensation Act A. Total v. Partial Disability

¶ 9. The Mississippi’s Workers’ Compensation Act compensates for both permanent total disability and permanent partial disability (scheduled-member). Miss.Code Ann. § 71-3-17 (Rev.2000).

¶ 10. If a worker suffers permanent total disability, the statute provides him two thirds of his average weekly wage, subject to the maximum limit of benefits, for up to 450 weeks. Miss.Code Ann. § 71-3-17(a). If a worker suffers the loss of a scheduled-member, the statute provides him two thirds of his average weekly wage for the number of weeks arbitrarily assigned by the Legislature to the particular body part. Miss.Code Ann. § 71-3-17(c). Loss of a leg equals 200 weeks of compensation. Miss.Code Ann. § 71-3-17(c)(2).

¶ 11. The purpose of permanent total disability is to compensate for loss of wage-earning capacity and not the worker’s medical disability. Smith v. Jackson Const. Co., 607 So.2d 1119, 1125 (Miss.1992) (citing Miss.Code Ann. § 71 — 3—B(j) (Rev.2000)). In contrast, compensation for scheduled-member disability is arbitrarily awarded according to which scheduled-member is disabled. Id. at 1126 (citing Walker Manuf. Co. v. Cantrell, 577 So.2d 1243, 1247-48 (Miss.1991)). In scheduled-member compensation, the focus is on the functional loss of the use of the body part “without regard to loss of wage earning capacity.” Id.

B. Loss of Scheduled Member

¶ 12. This is a scheduled-member case, controlled by section 71-8-17(c). Subsection 17(c) compensates for the loss of a scheduled member (e.g. amputation), the loss of use of a scheduled member (e.g. paralyzation), and partial loss of use. Miss.Code Ann. § 71-3-17(c)(2), (22), & (23). See Meridian Prof'l Baseball Club v. Jensen, 828 So.2d 740, 745 (¶12) (Miss.2002) (distinguishing loss, loss of use, and partial loss of use of scheduled members).

¶ 13. The law compensates for two types of loss of use: (1) “functional” or “medical” and (2) “industrial” or “occupational.” “ ‘Functional’ or ‘medical’ loss refers to physical impairment.” Jensen, 828 So.2d at 745 (¶ 11) (citing McGowan v. Orleans Furniture, Inc., 586 So.2d 163, 166 (Miss.1991)). “ ‘Industrial’ or ‘occupational’ loss is the functional or medical disability as it affects the claimant’s ability to perform the duties of employment.” Id. (internal quotations omitted). See Robinson v. Packard Elec. Div., Gen. Motors Corp., 523 So.2d 329, 331 (Miss.1988) (“[T]o establish industrial disability, the burden is upon the claimant to prove (1) medical impairment, and (2) that the medical impairment resulted in a loss of wage-earning capacity.”) (citing Miss.Code Ann. §§ 71-3-3®, 71-3-17(c)(25) (Rev.2000)).

¶ 14. In a scheduled-member case, a worker is always entitled to compensation for the medical or functional loss of his body part, regardless of whether the functional loss impacts his wage-earning capacity. Jensen, 828 So.2d at 745-46 (¶¶ 13-14). But the law recognizes there may be times when the industrial loss is greater than the medical loss. Id. In these cases, “the claimant’s industrial or occupational disability or loss of wage-earning capacity controls his degree of disability.” Id. at 745 (¶ 13) (quoting Smith, 607 So.2d at 1126).

C. Loss of Wage-Earning Capacity

¶ 15. We find the Mississippi Supreme Court’s decision in Meridian Professional Baseball Club v. Jensen provides a framework for analyzing this case. Jensen, 828 So.2d at 747-48 (¶¶ 21-22). Jensen too was a case where a worker (a minor-league-baseball player) suffered partial functional loss of a scheduled member (his arm). The issue was whether the partial functional loss resulted in a total industrial loss because Blair Jensen could no longer play baseball due to his injury. The evidence showed Jensen had suffered a 7% medical impairment. The AJ compensated Jensen for a 25% industrial loss. Id. at 746 (¶ 15). The supreme court considered Jensen’s claim that he had suffered a total industrial loss of his left arm:

[W]here a permanent partial disability renders a worker unable to continue in the position held at the time of injury, we hold that such inability creates a rebuttable presumption of total occupational loss of the member, subject to other proof of the claimant’s ability to earn the same wages which the claimant was receiving at the time of injury. The presumption arises when the claimant establishes that he has made a reasonable effort but has been unable to find work in his usual employment, or makes other proof of his inability to perform the substantial acts of his usual employment. Rebuttal is shown by ah the evidence concerning wage-earning capacity, including education and training which the claimant has had, his age, continuance of pain, and any other related circumstances. We find support for this holding in the same cases which created the substantial acts doctrine and which indicate that the ultimate determination must be made from the evidence as a whole considering loss of wage-earning capacity.

Id. at 747-48 (¶ 21) (citing McGowan, 586 So.2d at 167).

¶ 16. According to Jensen, there is a presumption of 100% industrial loss when the worker proves he can no longer perform “the substantial acts of his usual employment.” Id. At issue in that case was the scope of Jensen’s “usual employment.” Usual employment is “broader in scope than the job held at the time of the injury.” Id. at 747 (¶ 20). “Usual employment in this context means the jobs in which the claimant has past experience, jobs requiring similar skills, or jobs for which the worker is otherwise suited by his age, education, experience, and any other relevant factual criteria.” Id.

¶ 17. The supreme court found Jensen’s usual employment to be broader than professional baseball. Considering Jensen’s youth, education, successful post-injury employment, and higher post-injury wage earnings, the supreme court rejected his claim for total industrial loss and affirmed the award of 25% percent industrial loss. Particularly, because Jensen was earning higher wages post-injury, the supreme court noted:

For this Court to award those benefits which are meant to compensate for an inability to work, even though the worker in fact is able to secure employment at a comparable or even greater salary, would bestow a windfall contrary to the specific beneficial and remedial purpose of workers’ compensation.

Id. at 749 (¶ 24) (citations omitted).

¶ 18. Jensen reinforced prior cases that held loss of wage-earning capacity should be determined by considering the evidence as a whole. Id. at 748 (¶ 21); see, e.g., McGowan, 586 So.2d at 167. While the supreme court does not directly state that evidence of actual wage-earning capacity at a higher level post-injury takes away the presumption of total industrial loss, its discussion of a windfall indicates that, while a worker who is earning post-injury wages may nonetheless be entitled to an industrial loss greater than his medical loss, he cannot be compensated for a total loss.

DISCUSSION

¶ 19. Laurel argues the evidence does not support finding a 100% industrial loss because: (1) Guy’s leg only has a 25% medical impairment; (2) Laurel did not terminate Guy because of his impairment—Guy voluntarily left; (3) Guy continues to work in his field of law enforcement; and (4) Guy earns $10,000 more a year than he did at the time of the injury. We agree. In the face of undisputed evidence of Guy’s continued earning wages in the field of law enforcement, we find the award of 100% industrial loss unsupportable.

¶ 20. Guy claims his wage-earning capacity is irrelevant because this is a scheduled-member case. This claim would be true only if the AJ had based her award on Guy’s medical loss of 25%. But the AJ found, and the majority of the Commission affirmed, Guy had suffered a greater industrial loss of 100%. Because the award was based on industrial loss, Guy’s loss of wage-earning capacity necessarily becomes the controlling issue. Jensen, 828 So.2d at 745 (¶ 13).

¶ 21. Under Jensen, a rebuttable presumption of 100% industrial loss of a member exists when a claimant shows he can no longer “perform the substantial acts of his usual employment.” Id. at 748 (¶21). Laurel argues Guy’s “usual employment” is law enforcement. Thus, Guy did not prove he was unable to perform the substantial acts of law enforcement because he had remained employed in the law-enforcement field since the injury. Laurel draws a comparison with Jensen, where the claimant who earned more money after his injury could not be compensated for the loss of his ability to play professional baseball. While Guy may have wanted to work specifically as a patrol officer, Laurel argues, workers’ compensation is not intended to compensate for a lost vocational preference.

¶ 22. But Guy argues the sedentary nature of his current work is a special accommodation. All police departments have physical testing requirements, which the AJ found Guy could not meet based on his injury. The AJ appears to have been persuaded by this fact in finding Guy could not perform the substantial acts of his usual employment.

¶ 23. We agree with Laurel that based on Guy’s past experience and job skills, Guy is suited for a number of positions in law enforcement, making his “usual employment” broader than being a patrolman. But even under the broader view that Guy’s usual employment was law enforcement, the presumption of total industrial loss arose based on the physical test required of all law-enforcement officers. Because Guy cannot run and because being able to run is a substantial act required of all law enforcement officers, he at least earned the presumption of total industrial loss of his leg.

¶24. But this presumption was “subject to other proof of the claimant’s ability to earn the same wages which the claimant was receiving at the time of injury.” Id. at 747 (¶ 21). “Rebuttal is shown by all the evidence concerning wage-earning capacity-” Id. at 748 (¶ 21).

¶25. It is not disputed that Guy, instead of being terminated, voluntarily left Laurel for a job with Petal and now earns more wages. The AJ discounted these facts, instead focusing on Guy’s evidence that he was receiving a special accommodation provided by the Petal police chief. The AJ reasoned Chief Shelbourn may retire or not be re-appointed, which may result in a new police chief who might not accommodate Guy in the physical testing requirement, which may result in Guy being terminated at some point in the future. We agree with Commissioner Junkin, who dissented in this case, that Chief Shelb-ourn’s future employment is irrelevant to the issue of Guy’s wage-earning capacity. As Commissioner Junkin noted, “the vast number of working Mississippians are employed at the will and pleasure of their employer, and anyone employed on this basis is subject to having their employment terminated suddenly and without warning, for good reason or no reason at all.” MWCC No. 04-02894-J-3226 (Jun-kin, Commissioner, dissenting).

¶ 26. The AJ’s conclusion that Guy might lose his job if Chief Shelbourn were not re-appointed as police chief is far too speculative to support an award of total loss of wage-earning capacity. Laurel presented clear evidence that Guy has not suffered any loss in wages earned, rebutting any presumption of total industrial loss. As in Jensen, because Guy was earning higher wages post-injury, he cannot receive compensation for 100% loss. To allow Guy’s award to stand would be to “bestow a 'windfall contrary to the specific beneficial and remedial purpose of workers’ compensation.” Jensen, 828 So.2d at 749 (¶ 24) (citations omitted).

¶ 27. Of course, Guy’s post-injury wage-earning capacity does not defeat scheduled-member compensation. Id. at 745 (¶ 13) (acknowledging statutory right to compensation for medical impairment regardless of impact on worker’s ability to perform his job). It does not even defeat a finding of an industrial loss greater than Guy’s 25% medical loss. See id. (affirming 25% industrial loss based on 7% medical impairment). But Guy’s actual wage-earning ability is a strong circumstance that must be considered along with the evidence as a whole to determine to what extent, if any, Guy suffered an industrial loss greater than his medical loss.

¶ 28. Because the AJ failed to consider Guy’s actual post-injury wage-earning capacity, we must reverse the circuit court’s affirmance of the Commission’s decision and remand this case to the Commission (1) to determine whether Guy experienced an industrial loss less than 100% but greater than his 25% medical loss and (2) to award Guy the greater of his industrial or medical loss.

¶ 29. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY IS REVERSED, AND THIS CASE IS REMANDED TO THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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


text:
    Robert S. CORKERN, Appellant v. Amanda S. CORKERN, Appellee.
    No. 2009-CA-01083-COA.
    Court of Appeals of Mississippi.
    March 29, 2011.

      T. Jackson Lyons, Jackson, attorney for appellant.
    Mark R. Holmes, attorney for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Robert and Amanda Corkern were married in June 2001. They were granted an irreconcilable-differences divorce in the Chancery Court of Amite County in January 2005. The couple has a daughter who was born in 2003. The parties agreed that Amanda would have physical custody of the child, and Robert would pay alimony and child support.

¶ 2. In May 2007, Robert filed a complaint for modification of the judgment of divorce. He filed several amended complaints, the last of which was filed on January 30, 2008. The final complaint asserted that Tri-Lakes Medical Center, his primary source of income, had entered bankruptcy, and he was no longer being paid. In addition to a reduction in child support and alimony, Robert requested additional visitation with the couple’s daughter.

¶ 3. Amanda filed a counterclaim, asserting that Robert was in arrears on multiple payments owed to her. The chancellor granted Robert a clarification of his visitation schedule. However, the chancellor denied a reduction in alimony and child support, finding that Robert had failed to prove by a preponderance of the evidence that his income had sufficiently declined or that there had been a material change in circumstances. The chancellor also found that Robert had provided false information to the court regarding his assets, income, and expenses. Further, the chancellor found that Robert was not entitled to relief because he had come to court with unclean hands.

¶ 4. Robert now appeals, asserting the following issues: (1) he was entitled to a reduction in alimony, child support, and other support payments to Amanda because his obligations to her exceeded thirty percent of his income, and (2) his reduction in income demonstrated a material change in circumstances. Finding no error, we affirm.

FACTS

¶ 5. Robert and Amanda were married for approximately four years. The couple resided in Amite County, Mississippi. Robert worked as a physician during the marriage, and Amanda stayed at home with the couple’s child. After the divorce, Robert moved to Batesville, Mississippi, and Amanda moved to Madison, Mississippi. Robert purchased a home for Amanda in Madison pursuant to the couple’s property-settlement agreement. Robert remarried and was involved in a variety of business ventures related to the medical field. Robert’s new wife is a registered nurse, and she was paid a salary from Robert’s businesses. Amanda had not remarried at the time this case was filed. The property-settlement agreement signed by the parties stated that Robert was to support Amanda so that she could be a stay-at-home mother. Thus, Amanda has not returned to work.

STANDARD OF REVIEW

¶ 6. This Court “will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous[,] or an erroneous legal standard was applied.” Sanderson v. Sanderson, 824 So.2d 628, 625-26 (¶ 8) (Miss.2002) (citation omitted).

DISCUSSION

I. REDUCTION IN ALIMONY AND CHILD SUPPORT PER THE PROPERTY-SETTLEMENT AGREEMENT

¶ 7. Upon their divorce, Robert and Amanda entered into a property-settlement agreement that they had drafted. One of the provisions of the agreement states:

That notwithstanding the provisions of this agreement, should Husband’s obligations under his agreement ever exceed thirty percent of his gross salary, then Husband shall be allowed to make adjustments such that he shall not have to pay more than thirty percent of his gross before tax salary. In the event Husband exercises this provision and Wife must retain counsel to protect her rights, Husband agrees to pay any and all cost of court associated with any action filed by Wife, including but not limited to Wife’s attorney fees.

¶ 8. Robert asserts that his gross monthly income is $8,666, and his monthly obligation to Amanda is $9,648. Robert argues that since his obligations to Amanda exceed his total monthly income, he should be entitled to an adjustment based on the above provision.

¶ 9. In denying Robert’s request, the chancellor found that Robert had failed to present an accurate accounting from which to base a decision. The chancellor stated: “His [financial [declaration contains so much false and incomplete information that this [c]ourt can reach no other conclusion than to find that Robert was intentionally attempting to mislead the [c]ourt as to his financial condition.” Even Robert’s certified public accountant testified that the chancellor had insufficient information to determine whether Robert had the cash available to pay his bills. The chancellor found that Robert’s losses were “paper losses of income” designed to minimize his tax liability. Regarding the losses that were reported, Robert’s accountant testified: “I’m not saying [the way the previous accountant reported it was] right, but I wouldn’t want to say that in front of the IRS.”

¶ 10. The chancellor further found that Robert’s request should be denied because Robert had come to court with unclean hands. “The clean[-]hands doctrine prevents a complaining party from obtaining equitable relief in court when he is guilty of willful misconduct in the transaction at issue.” Bailey v. Bailey, 724 So.2d 335, 337 (¶ 6) (Miss.1998). Robert had failed to comply with multiple obligations set out in the property-settlement agreement. For example, Robert had failed to pay expenses of the minor child on time; he had failed to provide credit cards for Amanda after cancelling her credit cards without court approval; he had failed to pay alimony for three months; he had failed to pay the agreed upon furniture allowance; he had failed to execute a warranty deed or deed title of Amanda’s residence to Amanda; and he had failed to pay the neighborhood fees and assessments associated with Amanda’s residence.

¶ 11. Robert argues that the chancellor’s order was in error because it states that Robert must prove “a thirty percent (30%) decrease in his income, such as would trigger the modification under the terms of the parties’ agreement.” We find that this misstatement by the chancellor did not affect the outcome of this case. The modification provision in the property-settlement agreement does not require Robert’s income to decrease by thirty percent; rather, it allows for a modification if Robert’s obligations to Amanda exceed thirty percent of his income. Regardless, the chancellor found that it was impossible to determine Robert’s income with the financial statements he presented. We find that the chancellor’s decision was supported by substantial evidence. This issue is without merit.

II. MATERIAL CHANGE IN CIRCUMSTANCES

¶ 12. Robert also argues that if he failed to prove his obligations to Amanda exceeded thirty percent of his income, he demonstrated a material change of circumstances sufficient to modify child support and alimony.

¶ 13. A chancery court may modify an award of support if there has been a material change of circumstances that “occurred as a result of after-arising circumstances not reasonably anticipated at the time of agreement.” Dix v. Dix, 941 So.2d 913, 916 (¶ 15) (Miss.Ct.App.2006) (citing Varner v. Varner, 666 So.2d 493, 497 (Miss.1995)).

¶ 14. Robert asserts that his income had declined substantially since the divorce. He attributes this to the discharge of obligations owed to him by Tri-Lakes when it declared bankruptcy. Also, he sold an airplane that resulted in a taxable profit of nearly one million dollars. He asserts these two events made him unable to pay his taxes. He states that his income from his medical ventures fell from $666,291 in 2006 to a negative $450,000 in 2007. He asserts that the decline in his hospital business due to Tri-Lakes’ bankruptcy was not anticipated at the time of trial. Robert states that he is making an effort to sell off assets to pay some of his debts.

¶ 15. As stated above, the chancellor was unable to determine if Robert’s income had changed and, if so, to what extent. The chancellor found that without an accurate accounting, Robert had failed to prove that a material change of circumstances had occurred. The chancellor further noted that even if Robert had suffered a loss in income, he had sufficient education and experience to find other employment to increase his income. We cannot find that the chancellor’s decision was manifestly wrong or clearly erroneous. This issue is without merit.

¶ 16. THE JUDGMENT OF THE AM-ITE COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. MAXWELL, J„ NOT PARTICIPATING.


author: GRIFFIS, P.J.,

text:
    James DAVIS, Appellant v. GUARANTY BANK AND TRUST COMPANY, Appellee.
    No. 2009-CA-01827-COA.
    Court of Appeals of Mississippi.
    March 29, 2011.

      Chaka Denise Smith, attorney for appellant.
    Arnulfo Ursua Luciano, Cleveland, attorney for appellee.
   GRIFFIS, P.J.,

for the Court:

¶ 1. This is an action for the collection of a debt and the enforcement of a security interest through a court-ordered equitable lien. The Bolivar County Chancery Court entered a monetary judgment in favor of Guaranty Bank and Trust Company (“Bank”); held the debtor, James Davis, in contempt; and granted the Bank an equitable interest in the previously secured property. We find that this case should be reversed and remanded for further proceedings consistent with this opinion.

FACTS

¶ 2. On October 29, 2008, Davis procured a loan from the Bank in the amount of $5,010 to purchase a truck. Davis agreed to repay the principal, with interest, for a total amount of $5,341.31, which was due in one lump sum on February 1, 2009. In exchange for the loan, Davis granted the Bank a security interest in or lien on the truck. A certificate of title for the truck was issued, which listed Davis as the owner and the Bank as the first lienholder.

¶ 3. Davis was unable to repay the Bank by the agreed date. The Bank agreed to refinance Davis’s loan. A new promissory note was executed on January 9, 2009. Under the terms of the new promissory note, Davis agreed to pay the Bank the sum of $6,089.52 on or before March 9, 2009. The Bank retained its security interest in the truck. Davis defaulted.

¶ 4. On April 27, 2009, Davis asked an officer of the Bank to release the Bank’s security interest and provide him with a clean certificate of title for the truck. Davis told the officer that this would allow him to sell the truck. Davis committed to then return to the Bank with the proceeds of the sale and pay off his debt to the Bank.

¶ 5. The Bank was under no legal obligation to release its security interest. Indeed, the purpose of the certificate of title, which listed the Bank as a lienholder, was to notify any prospective purchaser of the Bank’s security interest. Nevertheless, to the Bank’s detriment, the Bank officer agreed to Davis’s proposal. The Bank released its lien, and a new certificate of title for the truck was issued. The new certificate of title listed Davis as the owner, and no lienholder was listed.

¶ 6. Davis claims that he sold the truck to Troy Stephens for $900. Davis did not tender the sales proceeds to the Bank.

¶ 7. The Bank filed a complaint against Davis. The Bank asked for a monetary judgment against Davis. The Bank also asked the chancery court to reinstate its previously held security interest in the truck and to prevent Davis from disposing of the truck until a hearing was held.

¶ 8. On October 8, 2009, a hearing was held. At the hearing, Davis represented himself, and he acknowledged that he had breached the promissory note when he failed to pay the amount due. Davis advised the chancellor that he had sold the truck to Stephens. Davis provided no documents to prove the sales transaction. The chancellor did not believe Davis’s testimony. The chancellor found that the alleged sale to Stephens had not actually occurred. By order dated October 13, 2009, the chancellor found that Davis was in breach of both the first and second promissory notes and entered a judgment for the Bank in the amount of $17,885.99. In addition, the chancellor granted the Bank an equitable lien in the truck. The chancellor also ordered Davis to return the truck and its certificate of title to the Bank by October 19, 2009.

¶ 9. Davis did not comply. He did not return the truck to the Bank by October 19, 2009. On October 20, 2009, the Bank filed a motion to compel and for an order of contempt. A hearing on the motion was held. Davis again represented himself and promised to return the truck if the chancellor would give him additional time. The chancellor imposed a new deadline of October 31, 2009, for the return of the truck. Davis claims that he went to Stephens and attempted to get the truck back, but Stephens refused.

¶ 10. On November 2, 2009, after Davis again failed to return the truck by the deadline, the chancellor entered an order granting the motion to compel and an order of contempt. Davis was incarcerated.

¶ 11. Thereafter, Davis retained an attorney. Davis’s attorney faxed a letter to the Bank’s attorney and attached a bill of sale and an assignment of title that evidenced the alleged sale of the truck to Stephens. Also, on November 3, 2009, Davis’s attorney filed a motion to set aside the order of contempt. The Bank filed a response to the motion and attached the bill of sale and the assignment of title. This appears to be the first time these documents were provided to the chancellor. Davis claims that he spent nine days in jail on the order of contempt.

¶ 12. On November 6, 2009, Davis’s attorney filed a notice of appeal. The notice indicated that Davis had appealed both the original order, dated October 13, 2009, and the order of contempt, dated November 2, 2009.

STANDARD OF REVIEW

¶ 13. This Court will not disturb the findings of a chancellor when supported by substantial credible evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 8) (Miss.2002). Legal questions are reviewed de novo. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721 (¶ 5) (Miss.2002).

ANALYSIS

¶ 14. The record before us is minimal. There was no testimony or documentary evidence presented to the chancellor. The transcript of the October 8, 2009 hearing reveals that the chancellor identified the case before the court, allowed opening statements (which were off the record), and then ruled on the case. The record contains no evidence. There is no testimony recorded, and there is no documentary evidence, such as the promissory notes or certificates of title.

1. Whether the chancellor abused his discretion by granting an equitable lien on the vehicle and ordering Davis to return the vehicle.

¶ 15. Davis argues that the chancellor erred when he granted the Bank an equitable lien on the truck and ordered Davis to return the truck and its certificate of title to the Bank. Davis argues that Stephens, as a bona fide purchaser, now has good title to the truck, free of the Bank’s security interest.

¶ 16. The Mississippi Motor Vehicle Title Law provides an exclusive procedure for the perfection of a security interest in a vehicle, with some exceptions that are not applicable to this case. Miss.Code Ann. § 63-21-43 (Rev.2004). “A security interest is perfected at the time the owner signs a security agreement describing the vehicle ..., the secured party gives value, the owner has rights in the vehicle ..., and an application for certificate of title signed by the owner is presented to a designated agent.” Miss.Code Ann. § 63-21^13(2)(a) (Rev.2004). The application for certificate of title has to include the name and address of the secured party and the date of the security agreement. Miss.Code Ann. § 63-21-43(2)(b) (Rev. 2004). Assuming there are no issues with the application, a new certificate of title is then issued that displays, on its face, the lienholder’s security interest. Miss.Code Ann. 63 — 21—45(l)(d) (Rev.2004).

¶ 17. The statute protects innocent purchasers who rely on a clean certificate of title (i.e., a certificate that does not, on its face, communicate that there is a security interest in the subject vehicle). The statute provides that “a security interest in a vehicle ... is not valid against ... subsequent transferees ... unless perfected as provided in this chapter.” Miss.Code Ann. § 63-21-43(1) (Rev.2004). A secured party must note its security interest on the face of the certificate of title or lose it in a contest with a subsequent purchaser. This rule promotes certainty and clarity in transactions, and it facilitates commerce.

¶ 18. The Bank had a perfected security interest in the truck. The Bank is in the business of loaning money, and this includes loaning money to consumers who purchase vehicles.

¶ 19. At one time, the Bank was entitled to the full protection of the Mississippi Motor Vehicle Title Law. The Bank chose to release its security interest. Based on what we can make of the record before this Court, the Bank released its security interest based on Davis’s oral promise to return with the proceeds from selling the truck. The Bank was under no duress. The Bank was not compelled to release its security interest. The Bank was or should have been aware of the potential consequence of its action. Yet, the Bank seeks to use the equitable powers of the chancery court to protect itself when it could have done so but chose otherwise. The Bank lost its perfected status as a lien-holder on the truck based on its knowing and considered action. As a result, the world was no longer on notice that the Bank had a security interest in the truck.

¶ 20. Davis claims he then sold the truck to Stephens. An unperfected security interest in a vehicle is not valid against a subsequent purchaser. The chancellor’s opinion indicates that there was evidence before the chancellor that Davis had sold the truck to Stephens and that another lender had acquired a security interest in the truck.

¶21. The chancellor found that the transaction did not actually occur. At the hearing, Davis, unrepresented by counsel, apparently presented his testimony to prove that the sale had occurred. He provided no documentation. Yet the record contains no evidence offered by the Bank to refute Davis’s claim that the sale occurred. The chancellor did not believe Davis. The chancellor then invoked his equitable powers to protect the Bank despite being on notice that a third party may have an interest in the truck.

¶22. If Stephens did in fact buy the truck from Davis, as Davis alleges, the chancellor may not impose an equitable lien on the truck. The chancellor’s decision to grant the Bank the right to possess the truck, in a court proceeding to which Stephens was not a party, was an abuse of discretion. Stephens might have acquired good title to the truck, free and clear of the Bank’s interest. If Stephens had acquired the truck as a good faith purchaser for value, the chancellor’s action would deprive him of his property without due process of law.

¶ 23. Neither Davis nor the Bank has raised the issue of whether Stephens should be joined as a party to this case. However, this Court can raise the issue sua sponte when necessary to protect the interest of the absent party. Shaw v. Shaw, 603 So.2d 287, 293-94 (Miss.1992) (adopting the federal courts’ “equitable exception” whereby nonjoinder of an absent person may be raised on the appellate court’s own motion when the interest of the absent person are prejudiced) (citations omitted).

¶ 24. Rule 19(a) of the Mississippi Rules of Civil Procedure provides:

(a) Persons to Be Joined if Feasible. A person who is subject to the jurisdiction of the court shall be joined as a party in the action if:
(1) in his absence complete relief cannot be accorded among those already parties, or
(2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.
If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant or, in a proper case, an involuntary plaintiff.

¶ 25. Rule 19(a) applies in this case. The chancellor was aware that Stephens claimed an ownership interest in the truck, and his interest would be impaired by the chancellor’s findings in this case. Therefore, we find that Stephens was and is a person to be joined, and the court had the authority to require that he be joined as a party. We reverse the chancellor’s judgment and remand this case for the chancellor to join Stephens if feasible, and if join-der is not feasible, the chancellor should conduct the proper analysis under Rule 19 as to whether the case should proceed in Stephens’s absence and whether the relief granted is appropriate in his absence.

¶ 26. We recognize that, on remand, the same result might be reached. The chancellor might again find that the alleged sale did not occur and again grant the Bank an equitable lien on and the right to possess the truck. However, Stephens would have notice and the opportunity to be heard. If Stephens was indeed a bona fide purchaser under the Mississippi Motor Vehicle Title Law, then the Bank cannot have any rights in the truck, and the Bank must seek only a monetary remedy from Davis personally. The Bank certainly knew of the possible consequences that could occur if it released its security interest without payment.

¶ 27. Accordingly, we find that the chancellor abused his discretion when he granted the Bank an equitable lien in property that was or might have been owned by another person who was not a party to the lawsuit. We reverse the chancellor’s judgment and remand this case for further proceedings consistent with this opinion.

2. Whether the chancellor abused his discretion by holding Davis in contempt.

¶ 28. Davis also asks this Court to discharge the order of contempt. Davis argues that he should not be held in contempt because it was impossible for him to comply with the chancellor’s order to return the truck to the Bank. Davis claims that he had already sold the truck to Stephens, who was a bona fide purchaser for value who took title to the truck free and clear of the Bank’s security interest.

¶ 29. The record contains a handwritten order by the chancellor, dated November 5, 2009, that ordered the release of Davis from incarceration. It also set conditions for Davis’s re-incarceration. The Appellee’s Record Excerpts contain an order granting the defendant’s motion to set aside the order of contempt that was executed on November 19, 2009. This order appears to set aside the chancellor’s prior order of contempt. However, this order was not in the clerk’s papers and was executed by the chancellor after the notice of appeal was filed. Thus, the chancellor did not have jurisdiction to enter this order. Nevertheless, Davis has been released from custody. Hence, we conclude that the contempt order is a moot question at this time. “This Court will not adjudicate moot questions.” C.M. v. R.D.H., Sr., 947 So.2d 1023, 1029 (¶ 23) (Miss.Ct.App.2007) (citation omitted). As for as the conditions of the chancellor’s handwritten order, dated November 5, 2009, we specifically note that the condition of re-incarceration may not be executed upon Davis to require his re-incarceration. Therefore, because this issue is moot, we decline to consider it.

3. Whether there is substantial evidence to support the monetary award in the judgment.

¶ 30. Pursuant to Rule 1 of the Mississippi Rules of Civil Procedure, we note that we must address another issue “to secure the just, speedy, and inexpensive determination of every action.”

¶ 31. Based on the record before this Court, it appears that the chancellor’s monetary award in the judgment is not and cannot be accurate. Davis’s lack of legal representation appears to have hindered the full development of the facts and has led to an erroneous interpretation of the amount due under the two promissory notes.

¶ 32. The chancellor found that Davis was in breach of both the first promissory note, executed on October 29, 2008, and the second promissory note, executed on January 9, 2009. The chancellor found the amount due on the first loan was $7,171.53, and the amount due on the second loan was $10,714.46. The chancellor then awarded the Bank a monetary judgment in the amount of $17,885.99, which is the sum of the two loans. There does not appear to be an award of attorney’s fees added to the principal and interest balance outstanding.

¶ 38. The complaint appears to contradict the chancellor’s finding. In fact, in the complaint, the Bank alleges that the second loan was to refinance the debt created by the first loan. The refinance was necessary because Davis was unable to pay off the first loan by the due date. The second loan essentially supplanted the first loan. The first loan was extinguished. It appears that the proceeds of the second promissory note were used to satisfy the first promissory note. Thus, Davis could not be in breach of a contract for the first promissory note if it was satisfied by the proceeds from the second promissory note. We simply cannot find sufficient evidence in the record that would support a monetary judgment against Davis in the sum of $17,885.99.

¶ 34. For these reasons, the chancellor’s order and judgment, dated October 13, 2009, is reversed, and this case is remanded for further proceedings consistent with this opinion.

¶ 35. THE JUDGMENT OF THE CHANCERY COURT OF BOLIVAR COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., IRVING, P.J., MYERS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR.