author: WALLER, Chief Justice,

text:
    Amanda GOFORTH v. STATE of Mississippi.
    No. 2010-KA-01341-SCT.
    Supreme Court of Mississippi.
    Sept. 15, 2011.

      Charles W. Wright, Jr., Meridian, L. Brooks Hooper, attorneys for appellant.
    Office of the Attorney General By: Jeffrey A. Klingfuss, attorney for appellee.
    BEFORE WALLER, C.J., LAMAR AND PIERCE, JJ.
   WALLER, Chief Justice,

for the Court:

¶ 1. Amanda Goforth, a former high-school teacher, was indicted on five counts of sexual battery involving one of her former students. She was convicted on two counts and acquitted on the remaining three. Because we find that Goforth was not afforded a constitutionally adequate opportunity to confront one of the witnesses against her, we reverse. Further, we find that Goforth’s conviction and sentence must be reversed and rendered. Any subsequent reprosecution would subject Goforth to the dangers of double jeopardy due to the multiple, identically worded counts in her indictment and the jury’s split verdict.

FACTS AND PROCEDURAL HISTORY

¶ 2. From 2008 to 2009, Amanda Goforth taught biology at Newton County High School. Her husband worked in oil fields in Texas on a two-week-on, two-week-off basis. Their only child was less than two years old during that time.

¶ 3. Both years, Goforth taught a troubled student named Jane Doe. Around January 2009, soon after Doe’s fifteenth birthday, Goforth began mentoring her. Doe had spent the prior semester in alternative school after having been caught in possession of illegal drugs at the high school. Doe had been having problems at home as well. Goforth gave Doe some clothes and, at one point, even contacted the Mississippi Department of Human Services (MDHS) concerning Doe.

¶ 4. In November 2009, Goforth reported Doe’s drug-use problems to Newton County High School Principal Ken Stringer and to Newton County Deputy Sheriff Mark Spence, who served as a school resource officer for the Newton County School District. Deputy Spence, it turned out, had prior and ongoing investigations of Doe concerning drug possession and two stolen cell phones. About this same time, Deputy Spence learned about accusations of sexual impropriety between Goforth and Doe.

¶5. On November 23, 2009, Deputy Spence spoke with and obtained a statement from Doe. Later that same day, Deputy Spence interviewed Goforth at the Newton County Sheriffs Department. Deputy Spence informed Goforth of her Miranda rights; thereafter, Goforth executed a waiver-of-rights form and gave a statement.

■ ¶ 6. Goforth stated that, following Doe’s stint in alternative school, she had donated clothes to Doe and had tried to mentor her. She said that Doe had spent the night at her house on one occasion. Go-forth recounted that a sobbing Doe had called her one evening and said that she had nowhere to stay. Goforth thus allowed Doe to spend that one night in a spare bedroom.

¶ 7. Deputy Spence specifically asked Goforth whether she had ever considered adopting Doe. Goforth said that adoption had never been a serious option. She explained that Doe had wanted her and her husband to adopt Doe. Goforth said that her and Doe’s relationship had soured after Goforth and her husband chose not to adopt Doe. She said that Doe had become upset about their decision, and that Doe had returned to using drugs once again as a result.

¶ 8. It was not until after Doe had returned to using drugs, according to Go-forth, that Doe began to exhibit a desire to be more than friends. Goforth said that Doe had started calling and texting her more frequently. Then, in August or September of 2009, Doe had tried to break into her house. “[Doe] called me and told me to let — let her in my house, and I said no.... [T]hen she[ ] beat[ ] on my windows and she scared me ...,” Goforth said. Goforth stated that she had called the police about this incident, but that she did not press charges against Doe because “she was drunk, and she had been on drugs, and I wanted to give her a second chance.”

¶ 9. Deputy Spence then mentioned that he already had taken a statement from Doe and from Doe’s friend, Chase Rigdon, and he informed Goforth that he had a cell phone with some incriminating photos. Goforth, at that point, said that she was not saying anything further. Yet, after a few further exchanges, Goforth continued to talk.

¶ 10. Goforth told Deputy Spence that Doe had had men drive her to Goforth’s house, and that Doe had threatened Go-forth and her eighteen-month-old child if Goforth did not engage in sexual activity with her. Goforth said that Doe had told her that she and John Thomas Roberts, Doe’s then-boyfriend, would take Goforth’s child to Mexico if Goforth did not comply with Doe’s desires. Goforth said that the mention of Roberts’s name had especially frightened her. Goforth and Roberts had dated in the past. She described Roberts as “bad,” and alluded that Roberts had forced her to do things in the past. Go-forth added that Roberts was the only person whom she had ever bailed out of jail.

¶ 11. Goforth further alleged that Doe had threatened to kill her “multiple times.” She said that she even had in her possession a piece of paper with a note from Doe that read: “come with me or die.” Go-forth explained that “come with me” meant going to Mexico with Doe. This note, in fact, was later produced it trial. Exhibit D-l is a small, half-torn post-it note that reads “would you rather die or go with me?”

¶ 12. Goforth acknowledged that she had engaged in sexual activity with Doe on five occasions, beginning in May 2009, and that Doe had made Goforth use a dildo each time. Goforth said that on the final encounter, Doe had shown up with Rigdon, that Rigdon had had a gun, and that she had been forced to have sex with Rigdon as well. Goforth said that Rigdon and Doe had returned to her house again on a later date, and that Doe had sought to come inside. Goforth said that she had called the police at that point because she had had enough. When asked why she had not contacted the police before then, Goforth replied, “Because I was scared that this would happen, and I would be in the wrong, and I was trying to get her sent back to alternative school because you know she’s had drugs.”

¶ 13. At trial, Newton County Deputy Sheriff Chris Hollingsworth testified that police had been called out to Goforth’s house one evening. Deputy Hollingsworth could not recall any dates, but he confirmed that he had been one of the four officers who had responded to a call about an attempted break-in by Doe. He recalled finding Rigdon sitting inside a vehicle. Doe, he said, was apprehended and taken to the sheriffs department until her mother came and picked her up. Deputy Holl-ingsworth said that Goforth did not press charges.

¶ 14. Toward the conclusion of Go-forth’s interview with Deputy Spence, he asked Goforth whether the dildo belonged to her, or whether Doe had brought it to Goforth’s house. Goforth claimed that Roberts had bought it. She said that the dildo was still at her house, and she consented to accompanying Deputy Spence to retrieve it. Goforth later executed a waiver-of-search form. That same evening, Goforth, Deputy Spence, Deputy Jeremy Pinson, and Angela Spence, an administrative assistant with the Newton County Sheriffs Department, all traveled to Go-forth’s home. Goforth retrieved the dildo from a bedroom dresser drawer. She was arrested and charged later that evening.

¶ 15. Shortly thereafter, on December 1, 2009, the Newton County School District notified Goforth that she was being terminated for “inappropriate relationships of a sexual nature with students.” The school district informed her that she had the right to a termination hearing, which Go-forth requested.

¶ 16. A termination hearing was conducted on January 25, 2010. Doe testified. Doe said that Goforth had been forced to engage in sexual relations with her under threats. Doe testified that, in the first sexual encounter, Roberts had accompanied her to Goforth’s house and that Roberts had a gun. She said that Roberts had threatened to hurt Goforth’s son if Goforth did not do as they asked. Doe also stated that she had physically beaten Goforth on one occasion.

I did write a threatening letter and I did hit her — ... So, if that is what you call a “threat,” then, yes, I did threaten her, but I did not hold a gun to her head and was like “you got to have sex with me.” I just wrote that letter, and I literally beat the crap out of her.

Doe said that Goforth had had to go to the doctor as a result of this beating.

¶ 17. The school district terminated Go-forth following the hearing.

¶ 18. On June 1, 2010, Goforth was indicted on five counts of sexual battery under Section 97 — 8—95(l)(c) of the Mississippi Code. A trial was held on August 9-10, 2010. The State called Doe as its first witness.

¶ 19. At trial, Doe testified that she had lied under oath at the termination hearing. She asserted that Roberts had never been involved, and claimed that she had fabricated the threatening conditions at Go-forth’s behest. Doe stated that she had called Goforth in December 2009, after Goforth had been arrested, and that Go-forth had instructed her to tell the authorities that Goforth had acted under threats. “[Goforth] told me if I said this [about the threats] at the [termination] hearing that day, we wouldn’t have to be here today,” Doe said. Doe maintained that she had tried to protect Goforth at the termination hearing. She said that she had decided to tell the truth, however, after Goforth had begun accusing her of harassment and had started implicating her, instead of Roberts, as the person who actually made the threats.

¶ 20. According to Doe, Goforth began mentoring her around January 2009. Sometime in April or May 2009, their relationship became sexual. Doe said that the two of them exchanged cell phone numbers and began texting. Their first sexual encounter, Doe said, occurred at Goforth’s former house. Doe asserted that Goforth had the dildo already, that they had used the dildo to sexually penetrate each other, and that they had performed oral sex on each other as well. Doe said that Go-forth’s child was the only other person in the home at that time.

¶ 21. Doe testified that she and Goforth had had four other sexual encounters, all of which occurred at Goforth’s new house. Three took place in the summer of 2009, and one occurred in August or September, after school had started. Doe said that she and Goforth had sexually penetrated each other with the dildo during each encounter.

¶ 22. According to Doe, another individual was present during two of those five encounters. Doe said that Jacob Moore, whom she had dated in the summer of 2009, had accompanied her to Goforth’s home on one occasion. Doe stated that Moore had stayed in the living room briefly, and then had walked outside while she and Goforth were in the bedroom. She said that Moore had not known about her and Goforth’s relationship. Doe also claimed that, during this particular encounter, she and Goforth “started play fighting,” that “it got a little rough,” and, as a result, Goforth had received a small red mark on her side.

¶ 23. Moore’s testimony at trial corroborated Doe’s account. Moore confirmed that he had accompanied Doe to Goforth’s house during the summer of 2009. He said that Doe and Goforth had gone into a back bedroom, and that they had stayed there for about twenty to thirty minutes. He said that he had hung out in the living room for a minute, and then had gone outside to smoke a cigarette. Moore testified that when Goforth and Doe had returned from the bedroom, Goforth had told Moore that Doe had hit her. Goforth then showed Moore a bruise on her side. Moore said that he had not witnessed any sexual activities, nor had he seen any threats by Doe toward Goforth.

¶ 24. Aside from Moore, Doe said that Rigdon, whom she described as her “best friend” or “boyfriend,” was present during her and Goforth’s fourth or fifth encounter. Doe claimed that, on that particular occasion, she and Goforth had engaged in sexual activity and that Rigdon eventually had joined them. She said that Rigdon and Goforth had had sex then.

¶ 25. The State later called Rigdon to the stand. Rigdon had given a written statement to police on November 23, 2009. His statement, which is discussed in more detail later in this opinion, corroborated Doe’s testimony. He said that Goforth willingly had engaged in sexual activity with both him and Doe. Coincidentally, between the time that Rigdon gave this statement and trial, he was severely injured in automobile accident. He testified that, as a result of the accident, he could not remember having made the written statement to the police or having ever known Goforth or Doe. Rigdon affirmed that he recognized his signature at the bottom of the statement, and he “guessed” that the statement itself was his.

¶ 26. Deputy Hollingsworth testified immediately after Rigdon. Deputy Holl-ingsworth stated that he was present when Rigdon provided the written statement. The trial court, over Goforth’s objection, subsequently allowed Rigdon’s statement to be read into evidence.

¶ 27. Doe testified that her and Go-forth’s sexual relationship came to light as rumors began to surface. Doe said that Goforth had told her that they had to stop seeing each other because their relationship was wrong. Doe stated that she then had begun taking pills, and that, while she was high, she had written Goforth a note that stated “would you rather die or go with me?” Doe provided the following explanation as to what she meant: “[Go-forth] told me if I ever told anybody [about us] [that] she was going to kill herself, and I was saying either you’re going to have sex with me or I’m going to tell, so if I tell, you’re going to kill yourself.”

¶ 28. Doe also spoke about the evening that she and Rigdon had gone to Goforth’s house, and Goforth had called the police. Doe said that she had been drunk that night, that she had needed a shower to sober up, and that she had wanted something to eat as well. She stated that Go-forth had thought that she was trying to break into her house, and that Goforth had threatened to call the police if she did not leave. Doe said that police had arrived eventually, and that they had taken her to the police station, where she had waited for her mother to pick her up.

¶ 29. At the conclusion of her testimony, Doe said that she “felt like” she loved Goforth, and said that she still had feelings for her. She also said that she did not want Goforth to be prosecuted or sent to jail.

¶ 30. When the State sought to admit Goforth’s statement to Deputy Spence, Go-forth objected. The trial court thus conducted a suppression hearing outside the presence of the jury. Following the hearing, the trial court admitted Goforth’s statement.

¶ 31. Goforth elected not to testify. During her case-in-chief, she called Don and Jeanie Vares, co-owners of Zack Gar-vin’s Steakhouse in Newton, and City of Newton Chief of Police Harvey Currie as witnesses. They all testified about an incident that had occurred less than two months before trial. While working at Garvin’s Steakhouse one evening, Goforth had received four or five suspicious telephone calls from an anonymous source. The calls had prompted Jeanie and Go-forth to contact Chief Currie. That evening, Jeanie, Don, Chief Currie, and Go-forth’s father, Jimmy Wyatt, had escorted Goforth to her vehicle. When they had reached her vehicle, they found a Taco Bell condiment package that read “marry me” attached to the vehicle window. About the same time, Don had noticed a sports car parked alongside an adjacent highway; Chief Currie pursued the vehicle. He testified that the driver of the vehicle was Doe. Doe was questioned and charged with harassment.

¶ 32. As her final witness, Goforth called Jan Boggs, a licensed psychologist. Goforth’s attorney had referred Goforth to Boggs in January 2010, and Boggs had seen Goforth every two weeks since that time. Boggs had collected a personal history of Goforth, had conducted a mental-status evaluation, and had observed Go-forth over a long period of time. She had diagnosed Goforth with major depression and post traumatic stress disorder, which Boggs described as an “intense anxiety disorder, both acute and chronic, that usually results from some type of trauma that the person has been through or ... a series of traumatic events.” Boggs believed that this disorder had begun near the time that Goforth had graduated from high school and had entered college. Boggs said that Goforth had suffered from this disorder in 2009. This disorder or condition, Boggs said, would have made Goforth “very vulnerable” and “very susceptible” to destructive psychological influences.

¶ 33. At the conclusion of trial, the jury found Goforth guilty on two counts and not guilty on three counts. For Count I, the trial court sentenced Goforth to serve thirty years in the custody of the Mississippi Department of Corrections (MDOC), with five years suspended and five years on supervised probation, and ordered Goforth to pay a fine of $10,000. On Count II, Goforth was sentenced to serve five years, to run consecutively with Count I. Altogether, she received a thirty-year sentence.

¶ 34. Goforth now raises five issues on appeal. First, she argues that her statement should have been suppressed for two reasons: (1) it was the involuntary product of coercion, and (2) Deputy Spence failed to honor scrupulously her invocation of her right to remain silent. Second, she contends that her Confrontation Clause rights under the Sixth Amendment to the United States Constitution and Article 3, Section 26 of the Mississippi Constitution were violated by the admission of Rigdon’s prior written statement to police. Third, she asserts that certain improper remarks by the State during closing arguments necessitated a mistrial. Fourth, she challenges the sufficiency of the evidence. And, finally, she maintains that any subsequent retrial would violate her Fifth Amendment right to be free from double jeopardy.

¶ 35. We need address only two issues: (1) whether the admission of Rigdon’s statement violated Goforth’s constitutional right to confront the witnesses against her, and (2) whether double-jeopardy concerns preclude any subsequent reprosecution.

I. Whether the admission of Rig-don’s statement violated Goforth’s constitutional right to confront the witnesses against her.

¶ 36. “This Court reviews de novo a Confrontation Clause objection.” Smith v. State, 986 So.2d 290, 296 (Miss.2008) (citing Hayden v. State, 972 So.2d 525, 535-36 (Miss.2007)).

¶ 37. A written statement signed by Chase Rigdon, dated November 23, 2009, was admitted and read before the jury at trial. In the statement, Rigdon said that he had accompanied Doe to Goforth’s house one Friday night and that Goforth had been drinking. He said that he had stayed outside while Doe and Goforth took a shower. Goforth later had walked to the door “completely naked” and had invited him into the back with her and Doe. Rig-don said that, shortly thereafter, he had gone into Goforth’s bedroom and had found her and Doe engaged in sexual activity. Both had asked him to climb into the bed with them. He then had had sex with Goforth. Rigdon said that Doe had become angry with him afterwards, and that Goforth had had to calm her down. Rig-don said that he eventually had gone to sleep. The next morning, he had found Doe passed out on the floor naked. He said that he had awakened Doe, had gotten her dressed, and that the two of them had left Goforth’s house.

¶ 38. The State called Rigdon as a witness at trial. A January 2010 automobile accident had substantially impaired his physical and mental conditions. He was confined to a wheelchair, and he testified that he could not remember anything that had occurred two years prior to the wreck. “I can’t remember probably half my life,” Rigdon said. He did not recall having known Doe or Goforth prior to the wreck. He could not remember going to Goforth’s house, speaking to any officers about the alleged incident, or writing out a statement. He recognized his signature at the bottom of the statement, but he could only “guess” that the statement itself had been written by him.

¶ 39. Following Rigdon’s testimony, Deputy Hollingsworth testified that he was present when Rigdon provided the statement. The State then sought to admit Rigdon’s statement under Rule 803(5) of the Mississippi Rules of Evidence. Go-forth objected on the basis that Rigdon was unavailable as a witness, that she had a constitutional right to cross-examine the witnesses against her, and that, under Rule 403, the statement’s probative value was substantially outweighed by the danger of unfair prejudice. The trial court ruled that Rigdon was available to testify, and that Rule 803 applied regardless of whether the witness was available. The trial judge further found that Ridgon had been able to confirm his signature, and that Deputy Hollingworth had testified to being present when Rigdon had made the statement. The trial judge thus admitted Ridgdon’s statement and overruled Go-forth’s ore tenus motion for a mistrial.

¶ 40. Goforth argues that the Confrontation Clauses in both the federal and state constitutions were violated because she was not able to confront Rigdon about his prior statement. His complete memory loss, she contends, rendered him essentially unavailable for cross-examination.

¶ 41. The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. Article 3, Section 26, of the Mississippi Constitution affords this same right. Miss. Const, art. 3, § 26. It states that “[i]n all criminal prosecutions the accused shall have a right ... to be confronted by the witnesses against him.” Id.

¶ 42. Since Article 3, Section 26 of the Mississippi Constitution provides defendants a constitutional right to confront the witnesses against them, we base our opinion on its provisions. See Cannaday v. State, 455 So.2d 713, 722 (Miss.1984). Federal caselaw serves as our guide, but Mississippi jurisprudence compels the result. Id. (citing Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983)).

¶ 43. We begin by noting that, even if Rigdon’s statement was admissible under the “recorded recollection” hearsay exception of Rule 803(5), it is still subject to scrutiny under the Confrontation Clause. In Crawford v. Washington, 541 U.S. 36, 61, 124 S.Ct. 1354, 1370, >158 L.Ed.2d 177 (2004), the Supreme Court stated that “[wjhere testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence....” Testimonial statements encompass signed, written statements made during an “interrogation[ ] solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator.” Davis v. Washington, 547 U.S. 813, 826, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). No one here disputes that Rigdon’s prior statement was testimonial. For it to be admissible, therefore, the demands of the Confrontation Clause must be satisfied. Crawford, 541 U.S. at 61-69, 124 S.Ct. 1354.'

¶ 44. The facts of this case are remarkably similar to a case decided years ago by the California Court of Appeal for the Fourth District. In People v. Simmons, 123 Cal.App.3d 677, 679, 177 Cal.Rptr. 17 (Cal.Ct.App.1981), Jackson gave police a written statement that implicated Simmons in an arson. But prior to Simmons’s preliminary hearing, Jackson suffered a severe head injury that caused amnesia. Id. He was unable to recall any admission Simmons had made to him, or that he had ever even made a statement to police. Id. Moreover, although he recognized his signature, he could not verify that the contents of the statement were from him. Id. The trial court, additionally, found no indication of evasiveness or selective memory. Id. at 680-81, 177 Cal.Rptr. 17. Nevertheless, it admitted Jackson’s statement as a past recollection recorded. Id. at 679, 177 Cal.Rptr. 17. The California Court of Appeal held that the admission of Jackson’s statement had denied Simmons his constitutional right to confrontation. Id. at 681-82, 177 CaLRptr. 17. The court reasoned that an accused must have the ability to meaningfully confront and cross-examine the witness against him or her. Id. at 681, 177 Cal.Rptr. 17 (citing California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970)) (emphasis added).

¶ 45. Two more recent California Court of Appeals decisions have concluded that Simmons was abrogated by the Supreme Court’s decision in United States v. Owens, 484 U.S. 554,108 S.Ct. 838, 98 L.Ed.2d 951 (1988). People v. Gunder, 151 Cal.App.4th 412, 419 n. 7, 59 Cal.Rptr.3d 817 (Cal.Ct. App.2007); People v. Cowan, 50 Cal.4th 401, 468, 118 Cal.Rptr.3d 850, 286 P.3d 1074 (Cal.Ct.App.2010).

¶ 46. In Owens, the Supreme Court addressed whether a Confrontation Clause violation can be based upon a witness’s loss of memory. Owens, 484 U.S. at 557, 108 S.Ct. 838. In that case, a prison correction counselor had sustained severe memory impairment after being beaten with a metal pipe. Id. at 556, 108 S.Ct. 838. When the counselor first spoke with the FBI, he was unable to remember his attacker’s name. Id. Weeks later, in a second interview with an FBI agent, he was able to describe the attack, name his attacker, and identify his attacker from a photo line-up. Id. At trial, the counselor recounted what he had been doing just prior to the attack, described feeling blows to his head, and recalled seeing blood on the floor. Id. He also vividly remembered identifying the defendant as his assailant during the second interview. Id. at 556, 565, 108 S.Ct. 838. On cross-examination, however, he acknowledged that he could not remember seeing his assailant at the time of the assault. Id. at 556, 108 S.Ct. 838. And, even though he had received numerous visitors during his hospital stay, the counselor could not remember any of them except one, nor could he recall if any of those visitors had suggested that the defendant was his attacker. Id. Defense counsel unsuccessfully sought to refresh the counselor’s recollection with hospital records, which showed that he had, at one point, attributed the assault to someone other than the defendant. Id. The Supreme Court held that no Confrontation Clause violation had occurred. Id. at 559-60, 108 S.Ct. 838. “‘[T]he Confrontation Clause guarantees only ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ ” Id. at 559, 108 S.Ct. 838 (quoting Kentucky v. Stincer, 482 U.S. 730, 739, 107 S.Ct. 2658, 2664, 96 L.Ed.2d 631 (1987)). The Court explained that the opportunity for cross-examination “is not denied when a witness testifies as to his current belief but is unable to recollect the reason for that belief.” Owens, 484 U.S. at 559, 108 S.Ct. 838. It is sufficient, rather, “that the defendant has the opportunity to bring out such matters as the witness’s bias, his lack of care and attentiveness, his poor eyesight, and even (what is often a prime objective of cross-examination ...) the very fact that he has a bad memory.” Id. The Court reasoned that there are “realistic weapons” to attack a witness’s statement when memory loss is asserted. Id. at 560, 108 S.Ct. 838. In that particular case, for example, the defendant had emphasized the counselor’s memory loss, and had argued that the counselor’s identification of the defendant had been the result of a suggestion made by one of his hospital visitors. Id. The Court noted that these weapons may not always be successful, “but successful cross-examination is not the constitutional guarantee.” Id.

¶ 47. Several years later, the Supreme Court in Crawford held that the Confrontation Clause requires that pretrial, testimonial statements made by a witness who is absent at trial are admissible only if the witness is unavailable and the accused had a prior opportunity for cross-examination. Crawford, 541 U.S. at 59, 124 S.Ct. 1354. In footnote nine of its opinion, the Supreme Court reiterated that “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.” Id. at 59 n. 9, 124 S.Ct. 1354 (citing Green, 399 U.S. at 162, 90 S.Ct. 1930).

¶ 48. In the wake of Owens and Crawford, many courts have found that a de-clarant’s appearance and subjection to cross-examination at trial are all that is necessary to satisfy the Confrontation Clause, even if his or her memory is faulty. State v. Holliday, 745 N.W.2d 556, 566-67 (Minn.2008) (citing cases from various jurisdictions). This Court, in fact, seemingly adopted this stance in a recent case involving a forgetful witness.

¶49. In Smith v. State, 25 So.3d 264, 266-67 (Miss.2009) (quoting Smith v. State, 25 So.3d 313, 315-16 (Miss.Ct.App.2008)), a shooting victim, Davis, gave a statement to police identifying Smith as the perpetrator. Davis told police that Smith had shot him following a dispute over some missing drugs, and said that he had seen Smith “face to face.” Smith, 25 So.3d at 315. Davis’s testimony changed drastically at trial, however. Id. at 316. He denied that he had seen Smith on the day of the shooting. Smith, 25 So.3d at 267. When questioned about his prior statement, he acknowledged giving a statement, but said that he could not remember what he had said. Id. After reviewing the statement in an effort to refresh his memory, he confirmed that the statement was his and that he had implicated Smith in the statement. Id. But he maintained that his memory of the incident itself had not been refreshed. Id. The testimony he eventually offered contradicted his prior statement to police. Id. at 268. He testified that the shots had come from across the street, and that he had identified Smith only because his nephew had told him that Smith was the shooter. Id. On cross-examination, he said that his prior statements had been false. Id. The Court of Appeals held that the admission of the Davis’s prior statements to police had violated Smith’s right to confront his accuser. Id. at 269. The Court of Appeals reasoned that “ ‘the ‘Davis’ who testified at Smith’s trial was no longer the accusing witness against Smith.’” Id. (quoting Smith, 25 So.3d at 324). This Court found such reasoning to be flawed. Id. at 269. We quoted Crawford’s proposition that “ ‘when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.’ ” Id. at 269-70 (quoting Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354) (emphasis added)). And we pointed out that, under Owens, the Confrontation Clause guarantees only an opportunity for effective cross-examination, and that a witness’s memory loss has no bearing on whether he or she should be regarded as having been subject to cross-examination on the witness stand. Smith, 25 So.3d at 270 (citing Owens, 484 U.S. 559-62, 108 S.Ct. 838). We concluded therefore that no Confrontation Clause violation had occurred: “Davis’s appearance on the witness stand at trial provided Smith with the opportunity to confront and cross-examine him, which is all that is required by the Confrontation Clause....” Id. at 271 (citing Crawford, 541 U.S. at 68, 124 S.Ct. 1354).

¶ 50. If the Confrontation Clause requires solely that the declarant be physically present and subject to cross-examination, its demands were satisfied in this case. Without question, Rigdon physically appeared at trial and was subject to cross-examination. But the United States Court of Appeals for the Seventh Circuit has noted that, according to Crawford, physical appearance alone is not necessarily dispos-itive. Cookson v. Schwartz, 556 F.3d 647, 651 (7th Cir.2009).

¶ 51. In Cookson, Cookson argued that a certain witness was not “available” for Confrontation Clause purposes because the witness could not remember having made the prior statements to police. Cookson, 556 F.3d at 650. The State argued that no Confrontation Clause problem existed, because the witness had appeared at trial and Cookson had been able to cross-examine her. Id. at 651. The State pointed specifically to the familiar language in Crawford that “ ‘when the de-clarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.’ ” Id. (quoting Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354). But the Seventh Circuit said that this language was not dispositive. Cook-son, 556 F.3d at 651. It pointed out that the Supreme Court elaborated on that statement just two sentences later: “ ‘[T]he Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it’ Id. (quoting Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354) (emphasis added). After comparing the facts in Cookson to those in Owens and United States, v. Keeter, 130 F.3d 297 (7th Cir.1997), the court concluded that Cookson had been afforded a constitutionally adequate opportunity to examine the witnesses against him. Cookson, 556 F.3d at 652. It noted that, unlike the witnesses in Owens and Keeter, the witness in Cookson had been able to remember the underlying events described in her prior statements. Id.

¶ 52. We find the Seventh Circuit’s interpretation of footnote nine in Crawford to be insightful and persuasive. According to it, a fair reading of footnote nine is that the Confrontation Clause does not bar admission of a prior testimonial statement if the declarant appears for cross-examination at trial to defend or explain his or her statement. See id. at 651 (quoting Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354). Importantly, the pertinent language does not require the record to actually show that the defendant did in fact defend or explain the statement. Roger W. Kirst, Does Crawford Provide a Stable Foundation for Confrontation Doctrine?, 71 Brook. L. Rev. 35, 76 (2005). The language, rather, focuses on “presence and ability to act.” Id.

¶ 53. We find that Rigdon, though physically present at trial, did not have the requisite, minimal ability or capacity to act. Significantly, no one here disputes that Rigdon’s total loss of memory was genuine. The trial judge, in fact, stated that “[i]t is obvious to the Court that [Rid-gon] suffers physical disabilities, and also a mental impairment in that he does not have recollection of matters that has [sic] occurred within his lifetime.” Nothing in the record indicates that Rigdon’s memory loss was feigned. He had no recollection of the underlying events surrounding his statement, and he could not even remember having known Goforth or Doe. It was, in his mind, as if the alleged events had never occurred. Additionally, he could not recall ever having spoken to police. The most he could do was verify his signature and “guess” that he had provided the written statement above it. This total lack of memory deprived Goforth any opportunity to inquire about potential bias or the circumstances surrounding Rigdon’s statement. In sum, Goforth simply had no opportunity to cross-examine Ridgon about his statement.

¶ 54. The case before us, furthermore, is distinguishable from both Owens and Smith. Though the declarant in Owens could not remember the underlying events surrounding his prior testimonial statement, he vividly recalled identifying the defendant when he had spoken to authorities. Owens, 484 U.S. at 556, 565, 108 S.Ct. 838. The defendant in that case also was able to cast doubt upon the identification and asserted that it had been based upon a suggestion by one of the individuals who had visited the defendant while he had been hospitalized. Id. at 560, 108 S.Ct. 838. Similarly, the supposedly forgetful witness in Smith remembered issuing a statement to police and confirmed that he had identified the defendant as the perpetrator. Smith, 25 So.3d at 267. He even testified about some of the underlying events; his account at trial simply contradicted what he had told police in his earlier statement. Id. at 268. And, in Smith, there was reason to be suspicious about the witness’s alleged memory loss. Smith, 25 So.3d at 316 n. 2 (noting that investigators had interviewed the witness six hours after he had been discharged from the hospital following treatment for a gunshot wound, and that his claimed total memory loss under such traumatic circumstances seemed “strangely suspect, at best”). The witness in that case was, after all, a prior convicted felon who recently had been released from custody and had a drug charge pending against him. Id. at 326 n. 8. He testified that he had felt pressured to testify because he had been threatened with jail time if he did not. Id. at 319.

¶ 55. We find that, under the Mississippi Constitution, Goforth did not have a constitutionally adequate opportunity to cross-examine Rigdon at trial or beforehand. The goal of the Confrontation Clause is to assess the reliability of evidence by testing it in the crucible of cross-examination. Crawford, 541 U.S. at 60, 124 S.Ct. 1354. We cannot say that Rig-don’s statement was subjected legitimately to that crucible. Accordingly, we find that the admission of Rigdon’s prior testimonial statement violated the Confrontation Clause in Article 3, Section 26 of the Mississippi Constitution.

¶ 56. Though we have found that Goforth’s Confrontation Clause right was violated, constitutional errors alone do not entitle a defendant to automatic reversal. Brown v. State, 995 So.2d 698, 704 (Miss.2008) (quoting Washington v. Recuenco, 548 U.S. 212, 218, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006)). Most constitutional errors, rather, may be deemed harmless. Brown, 995 So.2d at 704 (quoting Recuenco, 548 U.S. at 218, 126 S.Ct. 2546). This includes Confrontation Clause violations. Clark v. State, 891 So.2d 136, 142 (Miss.2004).

¶ 57. The basic, harmless-error test in such instances is “ ‘whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” Brown, 995 So.2d at 704 (quoting Thomas v. State, 711 So.2d 867, 872 (Miss.1998)).

¶ 58. We cannot say beyond a reasonable doubt that the constitutional error in this case did not affect the verdict. Rig-don’s prior testimonial statement was, perhaps, the most damaging evidence against Goforth. His statement corroborated, in greater detail, Doe’s account of how Go-forth willingly had engaged in sexual activity with her and Rigdon on one occasion. His statement thus lent credibility to Doe’s trial version of the events.

¶ 59. Because we cannot say beyond a reasonable doubt that the constitutional violation in this case did not contribute to Goforth’s conviction, we find that those violations were not harmless and constituted reversible error.

II. Whether double-jeopardy concerns preclude any subsequent re-prosecution.

¶ 60. This Court reviews claims of double jeopardy de novo. Boyd v. State, 977 So.2d 329, 334 (Miss.2008) (citing Brown v. State, 731 So.2d 595, 598 (Miss.1999)).

¶ 61. Goforth argues that we must reverse and render her conviction and sentence because any subsequent retrial would subject her to double jeopardy. She asserts that the indictment included five identical, sexual-battery counts, but that it failed to distinguish those counts in any way. The jury then returned a split verdict, acquitting her on three counts and finding her guilty on two counts. Because each of the five counts was identical, she maintains that there is no way to know which specific crimes she was convicted or acquitted on. This, she says, poses double-jeopardy concerns for any future retrial — she might be subject to reprosecution on one of the three counts for which she was acquitted.

¶ 62. Goforth’s double-jeopardy argument centers around the multi-count indictment. Goforth, in fact, raised double-jeopardy concerns about the multi-count indictment early on at trial. In her pretrial motion to dismiss, she asserted that the indictment did not enable her “to plead to any judgment in the instant case as a bar to any later proceedings against [her] based on the same alleged offense.” And, in her motion for judgment notwithstanding the verdict or, in the alternative, new trial, Goforth asserted that the indictment failed to put her on notice of all viable defenses, including any double-jeopardy defense.

¶ 63. The State insists that the double-jeopardy issue is not ripe for review. We disagree. This issue was raised at trial, is squarely before us today, and we are capable of deciding the issue based on the record before us.

¶ 64. The Double Jeopardy Clause of the Fifth Amendment provides that “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.... ” U.S. Const, amend. V. This amendment applies to the states through the Due Process Clause of the Fourteenth Amendment. Boyd v. State, 977 So.2d 329, 334 (Miss.2008) (citing Brown v. State, 731 So.2d 595, 599 (Miss.1999)). The Mississippi Constitution affords this same right. Miss. Const, art. 3, § 22 (“[n]o person’s life or liberty shall be twice placed in jeopardy for the same offense”). This Court has stated that “ ‘[a]n indictment must contain ... sufficient facts to enable [a defendant] to plead double jeopardy in the event of a future prosecution for the same offense.’ ” Berry v. State, 996 So.2d 782, 786 (Miss.2008) (quoting Gilmer v. State, 955 So.2d 829, 836-837 (Miss.2007)).

¶ 65. The indictment in this case stated that:

AMANDA GOFORTH
late of the County aforesaid, on or about April 1, 2009 through October 30, 2009, in the County and State aforesaid, and within the jurisdiction of this Court, as part of a continuing series of acts connected together and constituting one with the other parts of a common design, scheme and plan,
COUNT ONE
did willfully, unlawfully and feloniously engage in sexual penetration with H.P., a child over fourteen (14) years of age and under sixteen (16) years of age, when Amanda Goforth was more than thirty-six (36) months older than H.P., by inserting an object into the genital opening of H.P., contrary to and in violation of Section 97-3-95(1), Miss.Code Ann. (1972),

The four counts that followed all were worded identically.

¶ 66. In the recent case of Tapper v. State, 47 So.3d 95, 101 (Miss.2010), this Court was confronted with an issue of first impression: whether a multi-count indictment that alleges identical acts of conduct places a defendant on sufficient notice of the essential facts constituting the charged offense and the nature and cause of the accusation. In that case, Tapper argued that a multi-count indictment that included four identical counts of touching a child for lustful purposes had failed to notify him of the nature and cause of the accusation against him, and that its failure to allege more specific dates had denied him the opportunity to present a full defense. Id. at 101. This Court held that the trial court had not erred in refusing to quash his indictment. Id. at 103. The Court found that the State had narrowed the timeframe of the indictment as much as it could, and that the State could not have provided more specific details than it did. Id. at 101-03.

¶ 67. The majority in Tapper discussed whether the touching-for-lustful-purposes conviction had merged with Tapper’s sexual-battery conviction so as to violate the Double Jeopardy Clause. Id. at 101-03. Yet, it did not address the double-jeopardy implications posed by the multiple, identically worded counts in the indictment. Id. That particular issue had not been raised on appeal. Id. at 98. Justice Kitchens’s separate opinion, however, did reach the issue. Id. at 107-08 (Kitchens, J., concurring in part and dissenting in part). He noted that the indictment left Tapper unable to assert double jeopardy in any subsequent prosecution for similar conduct— the identically worded counts would have made it impossible to tell if Tapper already had been tried on such a charge. Id.

¶ 68. In his separate opinion in Tapper, Justice Kitchens cited a case from the United States Court of Appeals for the Sixth Circuit that sheds more light on the double-jeopardy issues before us. In Valentine v. Konteh, 395 F.3d 626, 628 (6th Cir.2005), Valentine had been charged and convicted of forty counts of sexual abuse. The indictment included “20 ‘carbon-copy’ counts of child rape, each of which was identically worded so that there was no differentiation among the charges and 20 counts of felonious sexual penetration, each of which was also identically worded.” Id. The Sixth Circuit found the indictment was fatally flawed due to the lack of differentiation among the counts. Id. at 636. It stated that Valentine had “no way to determine what charges of a similar nature could be brought against him in the future if he were re-indicted.” Id. at 628-29.

We cannot be sure what double jeopardy would prohibit [in a subsequent prosecution] because we cannot be sure what factual incidents were presented and decided by this jury. If Valentine had been found not guilty, it is not clear to what extent he could ably assert that his acquittal barred prosecution for other similar incidents.

Id. at 635. The court thus held that the multiple, identically worded counts had deprived Valentine of protection from the danger of double jeopardy. Id. at 636. Because the State had shown substantial evidence of ongoing abuse, the court sustained one of the child-rape convictions and one of the penetration convictions, but it set aside the remaining thirty-eight convictions and held that Valentine could not subsequently be charged for the same crimes during the relevant time period. Id. at 628-29.

¶ 69. We find that, as in Valentine, the multiple, identically worded counts in the indictment here failed to protect Goforth’s constitutional right against double jeopardy in the event of future prosecution. Neither the indictment nor the charging instruction differentiated among the five counts. Although the jury stated that it had found Goforth guilty on counts one and two, but not guilty on counts three through five, there is no identifiable basis for their distinction among the counts. As a result, the basis for the jury’s split verdict cannot be determined without conjecture.

¶ 70. We already have found that reversal is in order. Should Goforth be retried, neither she nor anyone else would be able to determine on which specific charges she previously was acquitted or convicted. Accordingly, we hold that Goforth cannot be prosecuted again on these charges or for any same crimes that occurred during the time period set forth in her indictment.

CONCLUSION

¶ 71. Goforth’s state constitutional right to confront the witnesses against her was violated. We find that this violation constitutes reversible error. We further find that Goforth’s constitutional right to be free from double jeopardy precludes any future prosecution on these same charges or for any same crimes that occurred during the period of time set forth in the indictment. Therefore, we reverse Go-forth’s conviction and render judgment on her behalf, discharging her.

¶ 72. REVERSED AND RENDERED.

CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR.

      . We use a fictitious name to protect the minor’s identity.

      . "Alternative school,” according to Newton County Deputy Sheriff Mark Spence, "is a school where students that are having trouble functioning for one reason or another, could be behavioral problems, drug problems, what have you, it’d be a school that they would be sent to.”

      . Deputy Spence explained that a "school resource officer” is "basically ... a cop in school.” "It’d just be a police officer that would be assigned to a school district!,] and they'd take care of security and other type details,” Spence explained.

      .On November 23, 2009, or just before that date, teachers approached Doe concerning two stolen telephones. Some pills, Klonopin and Xanax, were found on her at that time. Doe eventually pleaded guilty to stealing the cell phones and to possessing the pills.

      . "The Miranda warning requires that, before subjecting a person in police custody to interrogation, law enforcement officers must inform the person that he has the right to remain silent, that any statement he makes may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Chamberlin v. State, 989 So.2d 320, 332 (Miss.2008) (citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)).

      . This assertion proved to be false. Deputy Spence explained at trial that police did, in fact, have a cell phone in their possession, and that they had obtained a statement from another person who said that they had seen incriminating photos on that particular phone. The officers, however, were never able to actually retrieve the pictures from the cell phone.

      . Angela Spence is Deputy Mark Spence’s sister-in-law.

      . Section 97 — 3—95(l)(c) of the Mississippi Code states that “[a] person is guilty of sexual battery if he or she engages in sexual penetration with ... [a] child at least fourteen (14) but under sixteen (16) years of age, if the person is thirty-six (36) or more months older than the child....” Miss.Code Ann. § 97-3-95(l)(c) (Rev.2006).

      . The harassment charges against Doe had not been brought to court at the time of Goforth’s trial.

      . Rule 803(5) of the Mississippi Rules of Evidence, the "recorded recollection” exception provides for the admission of:
      A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party-
      M.R.E. 803(5).

      . Like Valentine, the record in this case indicates that factual distinctions among the counts could have been made. Valentine, 395 F.3d at 633-34 (noting that some specification was possible, but "little effort was made to disaggregate the whole of the abuse and try the case in forty counts as charged”). For example, one incident involved Rigdon, while another involved Moore. And one incident, according to Doe, occurred in Goforth's former house. The failure to differentiate among the counts, therefore, was not due to a lack of information.


source: Caselaw Access Project

author: LAMAR, Justice,

license: Public Domain

text:
    Billy NELSON and Gaynelle Nelson, Individually and as Parents and Next Friends of Justin Nelson, and as Representatives of All Wrongful Death Beneficiaries and Heirs of Bobby Nelson, Deceased v. BAPTIST MEMORIAL HOSPITAL-NORTH MISSISSIPPI, INC.; William E. Henderson, Jr., M.D.; Oxford Clinic for Women, A Partnership; Ira Lamar Couey, M.D., General Partner; R. Blake Smith, M.D., General Partner; William E. Henderson, Jr., M.D., General Partner; and Bo Martin, M.D.
    No. 2009-CT-00081-SCT.
    Supreme Court of Mississippi.
    Sept. 15, 2011.

      Margaret P. Ellis, Roderick D. Ward, III, Jackson, attorneys for appellants.
    Clinton M. Guenther, Greenwood, Walter Alan Davis, Oxford, attorneys for ap-pellees.
   ON WRIT OF CERTIORARI

LAMAR, Justice,

for the Court:

¶ 1. In this certiorari case, we are asked to determine whether the defendant clinic and doctors were properly served when the plaintiffs’ process server left process with the defendants’ office manager. The Court of Appeals declined to consider this issue even though it was raised in both direct appeals of this case. Following the Court of Appeals’ opinion in the second appeal, both parties petitioned for certiora-ri based on the Court of Appeals’ refusal to consider the service-of-proeess issue “that was not presented to the circuit court.” The Court of Appeals further stated that “on remand, the circuit court may consider this issue.” However, both parties concede the issue was presented to and ruled on by the trial court, and that it needs no further consideration by that court. We agree and affirm the trial court’s finding that the plaintiffs failed properly to serve the defendant clinic and doctors when the plaintiffs attempted to effect personal service by leaving process with their office manager. Because of this failure, the statute of limitations has run against the defendant clinic and doctors and the action against them must be dismissed with prejudice.

Facts

¶ 2. On April 26, 2001, Gaynelle Nelson gave birth to a baby boy, who died on July 14, 2001. On July 9, 2003, Gaynelle and her husband, Billy Nelson, filed a wrongful-death action in which they alleged the medical negligence of Baptist Memorial Hospital-North Mississippi, Inc., the Oxford Clinic for Women (“Clinic”), and Doctors William Henderson, Ira Couey, and R. Smith (collectively “Doctors”), caused their child’s death. All of the named Doctors are general partners of the Clinic.

¶ 3. Summonses were issued on October 22, 2003, and on November 3, 2003, the Nelsons filed a motion for additional time to serve the defendants. The trial court granted the plaintiffs an additional ninety days to serve process. Summonses were reissued on January 9, 2004, with the returned summonses filed January 20, 2004. The returned summonses reflect that Candace Hogue, the office manager for the Clinic and Doctors, was personally served with process.

¶ 4. The Clinic and Doctors then filed a motion to dismiss, arguing the action was time-barred based on three errors: (1) the Nelsons failed to comply with Mississippi Code Section 11-1-58 and attach a certificate of expert consultation to their complaint; (2) the Nelsons failed to comply with Mississippi Code Section 15-1-36(15) and provide sixty days’ presuit notice; and (3) the Nelsons failed properly to serve the Clinic and Doctors. Each doctor also filed an affidavit in which he or she denied ever having been personally served with a summons or complaint and that Candace Ho-gue “is not and has never been authorized or designated as my agent for service of process or as agent for service of process on/for Oxford Clinic for Women.” Likewise, the Clinic and Doctors filed Hogue’s affidavit, in which she denied that she was or had ever been an “agent authorized by appointment or by law to receive service of process on behalf’ of the Doctors and Clinic. She averred that an unidentified male delivered unidentified documents to her that she later discovered were summonses and complaints. She also averred that the person never asked or attempted to see or serve any of the Doctors with the documents.

¶ 5. Contrary to Hogue’s averments, the Nelsons filed the affidavit of their process server, Tommy Gadd. Gadd averred that he had served all summonses on Hogue “who had advised [him] that she had authority to accept summons” on behalf of the Doctors and Clinic. He also averred that it was his “understanding” that “she was familiar with this case when she accepted the summons.”

¶ 6. The trial court held a hearing on the motion to dismiss, in which it heard arguments for each of the three grounds the defendants argued warranted dismissal. Relevant to the issue of process, Candace Hogue testified at the hearing. Hogue reiterated the information contained in her affidavit, and she also testified that she had never before seen the person who left the summonses and complaints. Hogue testified that she had never before accepted service of process and that it was not her custom and practice to accept process. She stated that the person informed her he had some papers to leave, and then he handed her a brown envelope. According to Hogue, she asked him if he needed to speak or leave anything with the physicians, to which he replied “no.” The Nelsons did not call Tommy Gadd to testify at the hearing.

¶ 7. The trial court agreed with each of the defendants’ arguments and dismissed the action with prejudice. It noted that the Nelsons had filed their action on July 9, 2003, five days before the expiration of the applicable, two-year statute of limitations. The court ruled that “Mrs. Hogue is not, and was not, the agent for process for the individuals/physicians nor for Oxford Clinic for Women.... The individual defendants, the physicians and Oxford Clinic for Women have never been properly served with process.” It ultimately held the action was time-barred.

¶ 8. However, on the initial appeal, the Court of Appeals ordered the action dismissed without prejudice for the Nelsons’ failure to provide presuit notice under Mississippi Code Section 15-1-36(15) and failure to attach a certificate of expert consultation under Mississippi Code Section 11-1-58(1). In its opinion, the Court of Appeals expressly declined to address the issue of whether the Nelsons properly had served process on the defendants, finding the issue “moot.”

¶ 9. On March 26, 2008, the Nelsons refiled their complaint against Baptist, the Doctors, and the Clinic. In response to this action, the Doctors and the Clinic once again moved to dismiss the action as time-barred. They again asserted three different grounds in support of their motion to dismiss. First, they argued that the statute of limitations began to run the date of the alleged negligence (April 25, 2001), not on Bobby Nelson’s death (July 14, 2001). Second, they argued that the first complaint, filed on July 9, 2003, was a nullity that could not toll the statute of limitations, since the Nelsons had failed to comply with Sections 15-1-36(15) and 11 — 1— 58(1). Third, they argued the Nelsons had failed to effect service of process in Nelson I, so the statute of limitations had expired before the filing of the second (March 26, 2008) complaint.

¶ 10. At the hearing on the motion to dismiss, the Doctors and the Clinic reminded the trial court of its previous finding of deficient service of process in Nelson I. However, the trial court made no finding regarding the serviee-of-process argument when it dismissed with prejudice the Nelsons’ second action. It instead dismissed the action because of the Nelsons’ failure to comply with Section 15-1-36(15). But the Court of Appeals again reversed the trial court and remanded for further proceedings. It ruled the Nelsons’ noncompliance with Section 15 — 1— 36(15) did not cause the 2003 complaint to be a nullity. It specifically held that “the statute of limitations was tolled when the Nelsons filed their original complaint presuming proper service on the defendants. There is no question that the Hospital was properly served. There remains an issue as to whether service of process on the Clinic and the doctors was obtained[.]” The Court of Appeals then declined to address whether the Nelsons properly had served the Clinic and the Doctors; it found the matter “was not presented to the circuit court,” but that the circuit court could consider the issue on remand. However, after reviewing the record, we find this issue was presented to the circuit court in Nelson I and Nelson II and was raised in both appeals. So we take this opportunity to resolve the only issue raised on certiora-ri: whether the Nelsons properly served process upon the Clinic and the Doctors.

Discussion

¶ 11. The Nelsons argue that, even if service of process was insufficient in Nelson I, the Court of Appeals dismissed the action without prejudice, which provided them the opportunity to refile their complaint and properly serve the Clinic and the Doctors in Nelson II. They also assert that service of process upon Hogue was proper, and that the issue of Hogue’s apparent authority to accept process is a question for the jury, not the court. Last, they argue the Clinic and the Doctors failed to appeal or cross-appeal the issue of service of process in Nelson II, so it was not properly before the appellate court in the second appeal.

¶ 12. Conversely, the Clinic and the Doctors correctly note that the Nelsons themselves raised the issue of service of process in their appellant brief in Nelson 11. The Clinic and the Doctors urge this Court to accept the trial court’s ruling in Nelson I that personal service upon Hogue was deficient, as she was not an agent for service of process. According to the Clinic and the Doctors, the statute of limitations began running after the Nelsons had failed to effect service of process within the ninety-day extension the trial court granted. Therefore, they argue the five days remaining under the statute of limitations has run, and the action is time-barred and should be dismissed with prejudice.

¶ 13. We disagree with the Nelsons’ argument that the Court of Appeals’ dismissal without prejudice in Nelson I was an implicit ruling on the service-of-process issue. The Court of Appeals expressly declined to address the service-of-process issue and made no ruling on it. And as we will explain below, our caselaw shows that the court, not the jury, answers this question.

¶ 14. Service of process is governed primarily by our rules of civil procedure. Mississippi Rule of Civil Procedure 4(d) provides in relevant part that:

Service by sheriff or process server shall be made as follows:
(1) Upon an individual other than an unmarried infant or a mentally incompetent person, (A) by delivering a copy of the summons and of the complaint to him personally or to an agent authorized by appointment or by law to receive service of process. ...
(4) Upon a domestic or foreign corporation or upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process.

So we must determine whether Hogue was an “agent authorized by appointment or by law to receive service of process.”

¶ 15. In Williams v. Kilgore, this Court considered whether an office manager for two doctors was an agent “authorized by appointment or by law” to accept service of process. In that case, both doctors submitted affidavits stating the office manager was not their authorized agent to accept service of process. Yet the sheriff testified that the office manager had “on many occasions” accepted service of process on behalf of the doctors and that “he had never been instructed to the contrary on this or any other occasion.” This Court found the sheriff had properly served the doctors via the office manager, as our caselaw does not “preclude[] the acceptance of service of process by an agent such as an office manager, who, by custom and practice, is vested with apparent authority to do so.”

¶ 16. But in Johnson v. Rao, this Court distinguished Williams when we held a doctor’s receptionist did not have apparent authority to accept service of process on behalf of the doctor. In analyzing the issue, this Court first noted that apparent authority has three elements: “(1) [a]ets or conduct of the principal; (2) reliance thereon by a third person[;] and (3) a change of position by the third person to his detriment.” This Court then noted that “we must examine each case to determine whether the person was authorized as an agent for purposes of accepting service of process.” In reviewing the facts, we applied an abuse-of-discretion standard to the trial court’s findings and held:

Here, Dr. Rao’s receptionist, Powell, testified that she was not authorized by Dr. Rao to accept service of process; that she was not aware that the papers were regarding a lawsuit against Dr. Rao; that she had never accepted service of process on behalf of Dr. Rao or anyone else, in the past; that the deputy did not ask to see Dr. Rao and did not inform her that he was there to serve process on Dr. Rao. Nothing in the record reveals that Powell was authorized to accept process or that Powell had ever accepted service of process on prior occasions. Further, nothing in the record contradicts that Powell did not have authority to accept service of process on behalf of Dr. Rao.

Because the plaintiff failed properly to serve the doctor with process, this Court further held the statute of limitations had expired and upheld the trial court’s dismissal with prejudice.

¶ 17. In both Johnson and Williams, the trial court held hearings to determine whether the plaintiffs in those cases properly had served the defendants through their alleged “agents.” And in Johnson, we specifically applied an abuse-of-discretion standard to the trial court’s findings of fact regarding the issue of apparent authority and whether a person qualifies as an agent under Rule 4. Therefore, we find the trial court, not the jury, determines issues of fact regarding service of process, and we apply an abuse-of-discretion standard to the trial court’s findings of fact.

¶ 18. We find this case is similar to Johnson, in which we found the receptionist was without apparent authority. Like the receptionist in Johnson, Hogue testified that she was not authorized by the Doctors to accept service of process; that she was not aware that the papers pertained to a lawsuit; that she had never accepted service of process on behalf of the Doctors; that the process server did not ask to see any of the Doctors and did not inform her that he was there to serve process on any of them. And, unlike the office manager in Williams, Hogue testified that it was not her custom and practice to accept service of process, and she had never seen the process server, Thomas Gadd, before or since he left process with her. Therefore, we find no abuse of discretion in the trial court’s conclusion that Hogue was not an “agent” to accept service of process for the Clinic and the Doctors.

¶ 19. Without effective service of process, the statute of limitations began to run again after the ninety-day extension, which expired on February 4, 2004. And the parties agree that five days remained on the applicable statute of limitations when the Nelsons filed their first complaint in 2003. Therefore, this action is time-barred against the Clinics and the Doctors, as it was filed on March 26, 2008.

Conclusion

¶ 20. We uphold the trial court’s finding that Candace Hogue, the defendants’ office manager, was not an agent to accept service of process on their behalf. Because the Nelsons failed properly to serve the Clinic and the Doctors with process, the statute of limitations has run against these defendants. The judgment of the Court of Appeals is reversed. We affirm the trial court’s dismissal with prejudice as to the Clinic and the Doctors.

¶ 21. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY IS AFFIRMED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, CHANDLER AND PIERCE, JJ., CONCUR. KITCHENS AND KING, JJ., NOT PARTICIPATING.

      . Nelson v. Baptist Mem'l Hosp-N. Miss., Inc., 70 So.3d 212, 223 (Miss.Ct.App.2010) (Nelson II).

      . Id.

      . Baptist Memorial Hospital-North Mississippi, Inc., did not file a petition for certiorari. The Court of Appeals found "there [is] no question that the Hospital was properly served with process.” Id. at 218.

      . The returned summonses are not contained in the record. However, it is undisputed that the Nelsons' process server left process with Candace Hogue.

      . Nelson v. Baptist Mem’l Hosp-N. Miss., Inc., 972 So.2d 667 (Miss.Ct.App.2007) (Nelson I).

      . Id. at 673.

      . See Miss.Code Ann. § 15-1-36(15) (Rev. 2003).

      . Nelson II, 70 So.3d at 222-23

      . Id. at 217-19.

      . Id. at 218 (emphasis added).

      . Id. at 223.

      . Miss. R. Civ. P. 4(d)(1)(A), 4(d)(4) (emphasis added). We note that Rule 4(d)(4) is supplemented by Mississippi Code Section 13-3-55, which provides that "service of process on any partner shall be sufficient to maintain the suit against all the partners so as to bind the assets of the partnership and of the individual summoned.” Miss.Code Ann. § 13-3-55 (Rev.2002).

      . Williams v. Kilgore, 618 So.2d 51, 56 (Miss.1992).

      . Id.

      . Id.

      . Id. (emphasis added).

      . Johnson v. Rao, 952 So.2d 151, 155-56 (Miss.2007).

      . Id. at 155 (citation omitted).

      . Id.

      . Id. at 158.

      . Id.

      . Crumpton v. Hegwood, 740 So.2d 292, 294 (Miss. 1999) (complaint tolls the statute of limitations for a period of 120 days plus any other extension the trial court grants for the plaintiff to serve process upon a defendant).


author: PIERCE, Justice,

text:
    MISSISSIPPI CRIME LABORATORY, Mississippi State Medical Examiners, Dr. Steven Hayne, in his Official and Personal Capacities, Sunshine Medical Clinic and Dr. Vihba Vig, in her Official and Personal Capacities, Lisa Hoehn, Nurse Practitioner in her Official and Personal Capacities, Expertox, Inc. and Medscreens, Inc. v. Hattie DOUGLAS, Individually and as the Natural Mother, Next Friend and on Behalf of all the Heirs at Law and Wrongful Death Beneficiaries of Kaddarius Douglas, Deceased, and Kevin Hamlin, as the Natural Father and Next Friend of Kaddarius Douglas, Deceased, Kelvin L. Douglas, a Minor, Kendell Douglas, a Minor, Lakendrick R. Douglas, A Minor, Ty’Sia Douglas, a Minor and Jerome E. Douglas, a Minor.
    No. 2010-IA-00776-SCT.
    Supreme Court of Mississippi.
    Sept. 22, 2011.

      Robert L. Gibbs, Shaunda P. Baldwin, John G. Wheeler, John Burley Howell, III, Mildred M. Morris, Timothy Lee Sensing, Jackson, James Randal Wallace, Jr., Robert C. Boyd, Clinton, Leah Nichols Led-ford, Wade G. Manor, Barry W. Ford, Marlena Powell Jackson, Pickering, attorneys for appellants.
    Thomas Jon-William Bellinder, Dennis C. Sweet, III, Latrice Westbrooks, Warren Louis Martin, Jr., Jackson, attorneys for appellees.
    Before CARLSON, P.J., PIERCE and KING, JJ.
   PIERCE, Justice,

for the Court:

¶ 1. This is an interlocutory appeal from the denial of a motion to sever and transfer venue. Plaintiffs Hattie Douglas (“Douglas”), Kevin Hamlin, and the victim’s five siblings (collectively, “plaintiffs”) filed a complaint in the Circuit Court of Hinds County against Sunshine Medical Clinic; Dr. Vibha Vig, in her official and personal capacities; Lisa Hoehn, nurse practitioner, in her official and personal capacities (collectively “medical-negligence defendants”). The plaintiffs allege a medical-negligence and negligent-hiring cause of action against the Medical-Negligence Defendants concerning the treatment and care of their minor son and brother, Kad-darius Douglas (“Kaddarius”) received before he died. The plaintiffs, in the same complaint, also brought claims against the Mississippi Crime Laboratory; Mississippi State Medical Examiners; Dr. Steven Hayne, in his official and personal capacities; Expertox, Inc.; and MedScreens, Inc. (collectively “wrongful-incarceration defendants”) asserting that their acts and omissions in performing a post-mortem examination and toxicological tests on Kad-darius’s body, as well as in storing and handling blood and urine samples, caused the wrongful incarceration of Douglas for the murder of Kaddarius. All of the defendants moved to have the trial court sever the claims and to transfer the claims against the wrongful-incarceration defendants to Rankin County and to transfer the claims against the medical-negligence defendants to Madison County. The trial court denied the motion. All of the defendants now bring an interlocutory appeal to severe the two claims and transfer venue.

STATEMENT OF THE FACTS

¶ 2. The following facts were alleged in the plaintiffs’ complaint.

¶ 3. In October 2005, Kaddarius, then four months old, was taken to Sunshine Medical Clinic with severe respiratory problems. Sunshine Medical Clinic is located in Canton, Mississippi. Kaddarius was treated by Lisa Hoehn, nurse practitioner. Hoehn took no x-rays, and her treatment notes do not mention any consideration and/or treatment of pneumonia and/or myocarditis. In December 2005, Kaddarius, then six months old, was again taken to Sunshine Medical Clinic with severe respiratory problems. He was again treated by Hoehn, who took no x-rays and did not record any consideration and/or treatment of pneumonia and/or myocardi-tis. In May 2006, Kaddarius was taken to Sunshine Medical Clinic for a third time for respiratory problems. This time, he was seen by Dr. Vibha Vig (“Dr.Vig”). Dr. Vig’s physical examination of Kaddari-us revealed that his nose, mouth, pharynx, and ears were abnormal. Despite this, Dr. Vig did not order x-rays, and her treatment notes did not mention any consideration or treatment for pneumonia and/or myocarditis. Kaddarius died on May 11, 2006.

¶4. Following Kaddarius’s death, Dr. Steven Hayne (“Dr.Hayne”) performed an autopsy in Rankin County on Kaddarius’s body to determine his cause of death. According to Dr. Hayne’s report, there was no sign of the presence of alcohol in Kad-darius’s body. On May 15, 2006, blood and urine samples were taken from his body and sent to MedScreens, Inc. Although there was a recommendation from Dr. Hayne to test Kaddarius’s vitreous fluid, there was never any indication that vitreous fluid was ever drawn from Kaddarius or submitted for testing. On May 16, 2006, MedScreens delivered all of Kaddari-us’s samples to Expertox, Inc. On May 17, 2006, a death certificate was issued, stating that the cause of death was “rollover death/compression of chest.” It was deemed to be an accidental death.

¶ 5. On May 24, 2006, Expertox, Inc., issued a report with a finding that Kaddar-ius’s blood-alcohol content was .02g%. Between May 31 and June 2, 2006, Expertox, Inc., performed additional tests on the specimens and reported a blood-alcohol content of .04g% and that the urine-alcohol content was 0.4g%.

¶ 6. On August 16, 2006, MedScreens sent a test request to STL laboratories in St. Louis, Missouri. STL concluded that the blood samples were insufficient, and that they had been contaminated. STL further concluded that the urine sample yielded a result of 0.4g% alcohol content, but that it also showed a presence of brompheniramine and pseudoephed-rine/ephedrine, which was consistent with Kaddarius having taken cold medicine. As a result of these tests, Douglas was arrested and charged with the murder of her son and incarcerated.

¶ 7. As a result of the incarceration, the Mississippi Department of Human Services removed Douglas’s five other children from her custody. On July 10, 2007, Dr. Leroy Riddick ruled that Kaddarius’s cause of death was due to interstitial pneumonia and myocarditis. After she had been incarcerated for more than a year and a half, the murder charge against Douglas was nolle prossed on May 29, 2008. Douglas was then cleared of all wrongdoing in the death of her son.

¶ 8. The plaintiffs filed a complaint in the Circuit Court of Hinds County against the medical-negligence defendants and the wrongful-incarceration defendants. The plaintiffs alleged a medical-negligence and negligent-hiring cause of action against the medical negligence defendants concerning the treatment and care their minor son and brother, Kaddarius, received before he died. The plaintiffs, in the same complaint, also brought claims against the wrongful-incarceration defendants, asserting that their acts and omissions in performing a post-mortem examination and toxicological tests on Kaddarius’s body, as well as in storing and handling blood and urine samples, caused the wrongful incarceration of Douglas for the murder of Kad-darius. The defendants moved to have the trial court sever the claims and transfer the claims against the wrongful incarceration defendants to Rankin County and the claims against the medical negligence defendants to Madison County. The trial court denied the motion. All the defendants now bring an interlocutory appeal to sever the two claims and transfer venue.

STATEMENT OF THE ISSUES

I. Whether the trial court erred in denying the motion to sever the claims.

II. Whether the trial court erred in denying the motion to transfer venue.

ANALYSIS

¶ 9. In reviewing a motion regarding joinder and venue the proper standard of review is abuse of discretion. Wyeth Laboratories v. James, 918 So.2d 1243, 1245 (Miss.2005) (citing Janssen Pharmaceutica, Inc. v. Armond, 866 So.2d 1092, 1095 (Miss.2004)).

I. Whether the trial court erred in denying the motion to sever the claims.

¶ 10. Under Rule 20(a) of the Mississippi Rules of Civil Procedure,

[a]ll persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence or series of transactions or occurrences, and if any question of law or fact common to all defendants will arise in the action.

Miss. R. Civ. P. 20. “Both of these prongs must be established before joinder is proper.” Wyeth, 918 So.2d at 1245.

A. Whether the Same-Transaction-ar-Occurrence Prong is Satisfied.

¶ 11. Under the first prong of Rule 20(a), “before an alleged ‘occurrence’ will be sufficient to meet Rule 20(a)’s two factors, there must be a distinct litigable event linking the parties.” Hegwood v. Williamson, 949 So.2d 728, 730 (Miss.2007) (quoting Wyeth-Ayerst Labs. v. Caldwell, 905 So.2d 1205, 1207 (Miss.2005)). In determining if the distinct litigable event exists to link the parties, the court should consider:

whether a finding of liability for one plaintiff essentially establishes a finding for all plaintiffs, indicating that proof common to all plaintiffs is significant. The appropriateness of joinder decreases as the need for additional proof increases. If plaintiffs allege a single, primary wrongful act, the proof will be common on all plaintiffs; however, separate proof will be required where there are several wrongful acts by several different actors. The need for separate proof is lessened only where the different wrongful acts are similar in type and character and occur close in time and/or place.

Hegwood, 949 So.2d at 730-31 (quoting Ill. Cent. R.R. v. Gregory, 912 So.2d 829, 834-35 (Miss.2005)).

¶ 12. In Hegwood, Williamson and Hegwood were involved in a car accident, and both were insured by State Farm Insurance. Hegwood, 949 So.2d at 730. Williamson filed two separate claims as a result of the car accident, one for property damage and medical payments under her policy with State Farm, and a third-party claim for bodily injury and medical expenses under Hegwood’s liability policy. Hegwood, 949 So.2d at 730. Williamson then filed a breach-of-contract and bad-faith claim against State Farm as a result of the investigation by the company’s insurance adjusters. In Hegwood, this Court stated that “[t]he claims against Williamson and State Farm arise out of separate allegations of wrongdoing occurring at separate times. While it is true that the genesis of both claims arose out of the accident, the two claims involve different factual issues and different legal issues.” Hegwood, 949 So.2d at 731. Further, “when determining if joinder is appropriate, it is important to consider whether the proof presented to the jury would be confusing due to the multiplicity of facts. Hegwood, 949 So.2d at 731 (citing Caldwell, 905 So.2d at 1209). The Court held that raising both claims in one trial would be improper. Hegwood, 949 So.2d at 731.

¶ 13. In this case, no distinct litigable event links the claims against them medical-negligence defendants with the claims against the wrongful-incarceration defendants. Although the tragic death of Kad-darius is the nucleus of these claims, the claims involve different actors, different witnesses, different evidence, and different areas of the law. The medical-negligence and negligent-hiring claims require the plaintiffs to produce evidence that the medical-negligence defendants violated their duty of care in their treatment of Kaddarius and that they were negligent in the hiring of their medical staff. The evidence needed to prove these elements is in no way connected to the evidence the plaintiffs are required to show in order to prove their claims against the wrongful-incarceration defendants of negligence in the mishandling and testing of Kaddarius’s blood and urine samples. The proof that would be required to prove the various claims between the two different groups of defendants would only serve to confuse the jury. Further, a finding of liability against one defendant does not impute liability to all defendants, causing more confusion to the jury.

B. Whether any question of law or fact common to all defendants will arise in the action.

¶ 14. In addition to meeting the first prong of Rule 20(a), there must be a common question of law or fact for joinder to be proper. Miss. R. Civ. P. 20. As discussed above, no common question of law or fact exists to satisfy this prong. The case involves two different claims against different actors that require different proof and discuss different areas of the law.

¶ 15. Based on Hegwood, it is clear that no distinct litigable event can link the claims of the two groups of defendants. Therefore, the first prong of Rule 20(a) is not met. In addition to the first prong not being met, the plaintiffs have failed to provide sufficient argument that a common question of law or fact justifies joinder. Therefore, joinder is improper, and the claims should be severed.

II. Whether the trial court erred in denying the motion to transfer venue.

A. Proper venue for the claims against the medical-negligence defendants

¶ 16. The determination for proper venue is governed by statute. Mississippi Code Section 11-11-8(3) states:

Notwithstanding subsection (1) of this section, any action against a licensed physician, osteopath, dentist, nurse, nurse-practitioner, physician assistant, psychologist, pharmacist, podiatrist, optometrist, chiropractor, institution for the aged or infirm, hospital or licensed pharmacy, including any legal entity which may be liable for their acts or omissions, for malpractice, negligence, error, omission, mistake, breach of standard of care or the unauthorized rendering of professional services shall be brought only in the county in which the alleged act or omission occurred.

Miss.Code Ann. § 11-11-3 (Rev.2004) (emphasis added). Kaddarius received his medical care from Dr. Vig and Hoehn at the Sunshine Medical Clinic located in Canton, Mississippi. The alleged negligence happened at that clinic. Therefore, under Section 11-11-3(3), venue for the claims against the medical-negligence defendants is proper in Madison County, Mississippi.

B. Proper venue for claims against the urrongful-incarceration defendants

¶ 17. With regard to the claims against the wrongful-incarceration defendants, “[t]he Mississippi Tort Claims Act, Miss.Code Ann. §§ 11-46-1 to 11-46-23, controls the issue of proper venue in cases where a plaintiff files suit against the State or one of its subdivisions.” United States Fid. & Guar. Co. v. Moss, 873 So.2d 76, 78 (Miss.2004). Section 11-46-13(2) determines where venue is proper, and it states in pertinent part:

The venue for any suit filed under the provisions of this chapter against the state or its employees shall be in the county in which the act, omission or event on which the liability phase of the action is based, occurred or took place. The venue for all other suits filed under the provisions of this chapter shall be in the county or judicial district thereof in which the principal offices of the governing body of the political subdivision are located. The venue specified in this subsection shall control in all actions filed against governmental entities, notwithstanding that other defendants which are not governmental entities may be joined in the suit, and notwithstanding the provisions of any other venue statute that otherwise would apply.

Miss.Code Ann. § 11-46-13(2) (Rev.2002) (emphasis added). Section 11^16-l(j) defines “state” to mean “the State of Mississippi and any office, department, agency, division, bureau, commission, board, institution, hospital, college, university, airport authority or other instrumentality thereof, whether or not such body or instrumentality thereof has the authority to levy taxes or to sue or be sued in its own name.” Miss.Code Ann. § ll-46-l(j) (Rev.2002).

¶ 18. The plaintiffs argue that venue is proper in Hinds County because the principal offices of the Mississippi Crime Laboratory and the Mississippi State Medical Examiners Office are located in Hinds County. This argument, however, is not consistent with the statutes of the Mississippi Tort Claims Act. Under The Mississippi Tort Claims Act, the location of the principal offices is the proper venue for a case only when the governmental party involved is the governing body of the political subdivision. Miss.Code Ann. § 11 — 46-13(2) (Rev.2002). Section 11 — 46—l(i) defines “political subdivisions” to be

any body politic or body corporate other than the state responsible for governmental activities only in geographic areas smaller than that of the state, including, but not limited to any county, municipality, school district, community hospital as defined in Section 41-13-10, Mississippi Code of 1972, airport authority or other instrumentality thereof, whether or not such body or instrumentality thereof, whether or not such body or instrumentality thereof has the authority to levy taxes or to sue or be sued in its own name.

Miss.Code Ann. § 11 — 46—l(i) (Rev.2002). The Mississippi Crime Laboratories and the Mississippi State Medical Examiners Office, along with Dr. Hayne, do not fit the definition of “political subdivisions” set forth under this section.

¶ 19. In the instant case, Dr. Hayne was an employee of the State of Mississippi at the time of the autopsy, and the Mississippi State Medical Examiners Office and the Mississippi Crime Laboratory are part of state government under Sections 11 — 46—1(f) and (j). See Miss.Code Ann. § 11 — 46—1(f) and (j) (Rev.2002). Further, under Section 11-46-13(2), in actions brought against the State and its employees, venue is proper in the county “in which the act, omission, or event on which the liability phase of the action is based, occurred or took place.” Miss.Code Ann. § 11-46-13(2) (Rev.2002). In his affidavit, Dr. Hayne testified that he performed the autopsy and gathered the blood and urine samples at the Rankin County Morgue in Pearl, Mississippi. He also testified that “there were no aspects of the post mortem examination of Kaddarius Douglas performed in Hinds County, Mississippi. Kaddarius Douglas’ blood and urine specimens were not obtained in Hinds County, nor were they stored or analyzed in Hinds County, Mississippi.”

¶ 20. Therefore, venue is proper in the county where the act or omission occurred, Rankin County.

CONCLUSION

¶ 21. The trial court erred in not severing and transferring the claims to their proper venues. Therefore, the medical-negligence and negligent-hiring claims against the medical-negligence defendants shall be severed and moved to Madison County Circuit Court. The wrongful-incarceration claims against the wrongful-incarceration defendants shall be severed and moved to Rankin County Circuit Court. We reverse the judgment of Hinds County Circuit Court and remand the case for severance and transfer, consistent with this opinion.

¶ 22. REVERSED AND REMANDED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND KING, JJ„ CONCUR.

      . Although not included in the complaint, Dr. Riddick is a pathologist from the University of South Alabama in Mobile, Alabama. See http://www.southalabama.edu/usahealth system/pressreleases/2006pr/060906b.html (last visited September 21, 2011).

      . In their brief, the plaintiffs take a different approach on appeal, raising issues regarding whether the Mississippi Crime Laboratory and Mississippi State Medical Office failed to perform certain duties (e.g., negligently failing to utilize proper testing procedures and negligently training employees), which led to Douglas’s wrongful incarceration. These issues are new, and will not be considered on appeal. See Bush v. State, 895 So.2d 836, 842 (Miss.2005).