author: ROBERTS, J.,

text:
    Feriando ESCO, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-01787-COA.
    Court of Appeals of Mississippi.
    Sept. 30, 2008.
    Rehearing Denied March 3, 2009.
    Certiorari Denied May 28, 2009.

      Randall Harris, Julie Ann Epps, Canton, attorneys for appellant.

      Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, P.J., CHANDLER, GRIFFIS and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. A jury sitting before the Madison County Circuit Court found Feriando Esco guilty of (1) aggravated assault, (2) armed robbery, (3) conspiracy to commit aggravated assault, (4) conspiracy to commit armed robbery, (5) possession of a firearm by a prior convicted felon, and (6) felony evasion. The circuit court sentenced Esco as a habitual offender to five concurrent life sentences and one consecutive life sentence.

¶ 2. Aggrieved, Esco appeals and claims the circuit court erred: (1) in allowing the prosecution to submit the entire guilty plea colloquy of a co-defendant; (2) in failing to give a sua sponte limiting instruction regarding the co-defendant’s guilty plea; (3) in allowing the prosecution to submit evidence of a prior conviction; (4) in allowing the prosecution to ask him, during cross-examination, whether several law enforcement officers had lied when they testified; (5) in allowing law enforcement officers to vouch for their own credibility during the prosecution’s rebuttal case; (6) in allowing the prosecution to submit a list of E sco’s incoming and outgoing cell phone calls, and; (7) in consulting with the jury prior to sentencing Esco. Finding no error, we affirm the judgment of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 3. Esco’s conviction is the result of a botched attempt to rob William Curtis James, Jr., at the McDonald’s restaurant in Madison, Mississippi during which James was shot. As of June 2005, James owned and operated a landscaping and house-washing business. The record reflects that James operated his business on a cash basis, and it was common knowledge that James usually had a large amount of money.

¶ 4. The day before he was shot, James received a phone call from an unidentified male who wanted to utilize James’s business services. James and the unidentified caller arranged to meet the following day at McDonald’s in Madison. The next day, James went to McDonald’s as planned. James later testified that he noticed two men inside McDonald’s. James described one man as black with dread locks, and the other as a “bright-skinned” man on a telephone. James testified that the “bright-skinned” man nodded at James. The man with dread locks left McDonald’s while James was still eating.

¶ 5. James’s meeting with the unidentified caller never took place. The unidentified caller contacted James on James’s cell phone and told him that an unexpected emergency arose, and he would not be able to meet at McDonald’s that day. James finished his lunch, left McDonald’s, and walked across the parking lot to his Chevrolet Suburban SUV. As James got into his Suburban, he realized that the man with dread locks was in his backseat.

¶ 6. The man with dread locks was armed with a pistol. He ordered James to start the SUV. Before James could start the SUV, the “bright-skinned” man ran around to the front of James’s SUV. By James’s description, the “bright-skinned” man “was trying to get in and push [him] on over.” According to James, the “bright-skinned” man said, “[S]hoot the f-,” and the man with dread locks shot James. James fell out of his SUV and staggered inside McDonald’s. James was seriously, if not critically injured, but after a long and difficult recovery, he survived.

¶ 7. The man with dread locks and the “bright-skinned” man ran across the parking lot and got into a white Ford Mustang where a driver was waiting for them. Darwin Freeman, an employee of the Madison Public Works Department, was at the intersection of Highway 51 and Main Street that day when he noticed the two men run across the parking lot and jump into the white Mustang. Freeman contacted the Madison Police Department and relayed what he saw. As the Mustang fled the scene, it passed through a road construction area. The Mustang almost hit one construction worker, and another construction worker saw someone throw a pistol from the Mustang.

¶ 8. Law enforcement officers stopped a white Mustang on Rice Road, but as the officers approached the Mustang, the driver sped away. During the pursuit, the Mustang moved into oncoming traffic and nearly hit a motorcycle patrolman head on. The patrolman was able to avoid a collision with the Mustang by virtue of a radio warning from pursuing officers.

¶ 9. Officers were not able to stop the Mustang again. However, authorities quickly centered them pursuit on the Parc Apartments in Ridgeland, Mississippi where a white Mustang was spotted. Law enforcement officers quickly converged on the Parc Apartments and apprehended the man with dread locks, later identified as Isaiah Sanders. Esco was questioned, but he was not arrested at that time. Law enforcement officers found a revolver in a bush near McDonald’s, as well as a semiautomatic pistol and a baseball hat on the side of Old Canton Road.

¶ 10. Months later, James received a call from Joann Rogers. Rogers was in McDonald’s the day that James was attacked. Rogers told James that on that day, she saw Esco sitting in a car in the McDonald’s parking lot. Rogers also told James that Esco was on the phone. James took Rogers to meet with Investigator Mike Brown of the Madison Police Department. As a result, an arrest warrant was issued for Esco; however, Esco could not be found in Mississippi. Esco had disobeyed the requirements of his federal probation, left the southern district of Mississippi, and fled to Tennessee. However, United States marshals apprehended Esco as he left a Wal-Mart in Clarksville, Tennessee.

¶ 11. On September 8, 2005, a Madison County grand jury returned an indictment against Esco and charged him with (1) aggravated assault, (2) armed robbery, (3) conspiracy to commit aggravated assault, (4) conspiracy to commit armed robbery, (5) possession of a firearm by a prior convicted felon, and (6) felony evasion. Esco pled not guilty, and in August 2006, he went to trial.

¶ 12. The prosecution called twenty-one witnesses, but the witness who arguably was most damaging to Esco was the “bright-skinned” man — Michael Johnson. Johnson testified that on June 14, 2005, Esco picked him up in a white Cadillac Escalade. Afterwards, they picked up Sanders. According to Johnson, their specific plan was to “hit a lick,” meaning they planned to rob someone. Sanders had a nine-millimeter pistol, but they wanted another weapon, so they went to Sanders’s house to pick up a revolver. Afterwards, they borrowed a white Ford Mustang from Esco’s friend.

¶ 18. Johnson testified that Esco did not plan to take part in the robbery. Instead, Esco planned to wait in the car and drive when Johnson and Sanders were finished robbing James. Esco drove around and ended up in the parking lot of McDonald’s and Winn Dixie. When they saw James go inside McDonald’s, Esco moved the Mustang over to a nearby parking lot. Johnson and Sanders went inside McDonald’s. Johnson sat down, and Sanders went to the bathroom. While Johnson was inside McDonald’s, he and Esco talked over the phone.

¶ 14. According to Johnson, Sanders left McDonald’s before James and got in James’s SUV. When James left McDonald’s, Johnson followed him. At the point that James reached his SUV, Sanders already was waiting for him in the backseat. James and Sanders struggled, and Sanders shot James. At that point, Johnson and Sanders ran to the Mustang, and Esco drove away. Johnson testified that Esco was pulled over by a patrol car, but Esco sped away when the officers exited their vehicle. During the trip to Esco’s apartment, Johnson threw his hat and Sanders’s nine millimeter pistol out of the window. When Esco stopped the car, they all got out and ran.

¶ 15. Esco called Nikike Shavers as a witness. Shavers testified that she was with Esco on the day that James was shot. According to Shavers, she arrived at Esco’s apartment around 10:30 a.m. Shavers stated that two men came to Esco’s apartment. Shavers knew one of them as “Dread.” The two men asked Esco if they could borrow his SUV. Shavers testified that Esco told them that his SUV was not working properly. According to Shavers, the two men asked if they could borrow her car so they could get something to eat, but she said no. Because they kept insisting, Esco finally relented and gave them the keys to a white Mustang. Shavers explained that the Mustang did not belong to Esco, but he had the keys to it. Shavers testified that the two men left, and she and Esco waited for them to return. According to Shavers, she left two hours later, and the two men had not returned. Shavers went on to testify that, while she was in her car, a friend of hers contacted her and told her that Esco was in the news related to a robbery and a shooting. Shavers testified that she told her friend that Esco could not have taken part in the robbery because she had been with Esco that day.

¶ 16. Esco took the witness stand and testified in his own defense. Esco testified that he had access to a white Mustang on the day James was shot. Esco explained that he borrowed the Mustang from a friend because the “engine light” was on in his SUV. Esco corroborated Shavers’s testimony in that he stated Shavers was at his apartment when Sanders and a man he only knew as John arrived at his apartment.

¶ 17. According to Esco, the two men wanted James’s telephone number because James owed them $2,400. Esco testified:

When I went upstairs for to get the number, [Sanders] had my phone, and I called the number down the stairs where I stay in a townhouse. And I called the number, and [Sanders] put the number in the phone as ID in the phone. And when I came downstairs, he had it in the phone.

¶ 18. Next, Esco testified that Sanders and John wanted to borrow a car. According to Esco, Dread asked Esco to tell Shavers to let them borrow her car so they could get something to eat. Eventually, Esco told them they could use the Mustang. Esco testified that he also gave them his cell phone and asked them to charge the phone battery in the Mustang. According to Esco, Sanders and John left, and he and Shavers waited for them to return. However, Shavers left after a while.

¶ 19. Esco went on to testify that shortly after Shavers left, the Mustang pulled into the parking lot at a high speed. Esco walked around the apartments and asked someone if he saw anyone get out of the Mustang. That person had not seen anyone. Esco went to the Mustang, opened the door, and looked for his cell phone, but he could not find it.

¶ 20. According to Esco, law enforcement officers arrived within minutes. Esco told one officer that the Mustang belonged to a friend of his. Another officer came from a nearby building with Sanders. Esco testified that he did not want to “tell on” Sanders, but the officer kept asking Esco to whom had he loaned the Mustang. Esco told the officer to call his lawyer, but Esco’s lawyer told him to cooperate. At that point, Esco relented and told the officer he let Sanders and John borrow the Mustang. Sanders was taken into custody, but Esco was not.

¶ 21. Esco confirmed that he knew Johnson and that he met Johnson during the time they were incarcerated in Beaumont, Texas. However, Esco testified that he did not see Johnson the day James was shot. When asked about the fact that the summary prepared by Investigator Brown showed an incoming phone call from Johnson at 2:58 p.m. and an outgoing call from his own phone at 8:49 p.m., Esco explained that his “phone was in the Mustang, supposed to have been in the Mustang on the charger at that time.” Esco also confirmed that his cell phone was taken from Sanders’s shirt pocket when Sanders was arrested.

¶ 22. As for his presence in Clarksville, Tennessee, Esco testified:

I was on federal, I was on federal papers for three years. And I had like a couple of months to go for to get off papers. And the federal marshal came over to my apartment looking for me, relating to this crime. And I noticed, I knowed that if they got me in custody, they won’t give me a bond because I was on federal papers, and I didn’t have that long, so I really wanted to try to stay out of their way until I get off papers, and then I would turn myself in and get a bond for I can get back out of jail, for I didn’t want to be incarcerated for my kids.

¶ 23. During cross-examination, the prosecution asked Esco to explain why, if Sanders and John had his cell phone as he claimed, and they had been gone for as long as he claimed, he did not call his own cell phone. Esco answered, “I called it and it was off when I called it.” The prosecution then asked Esco how many times he called his cell phone. Esco responded that, approximately an hour or two after Sanders and John left, he called his cell phone, “[l]ike four or five times.” The prosecution then asked Esco to explain why, according to the log of phone calls, the phone was working the rest of the day. Esco could not explain that.

¶ 24. The jury found Esco guilty of all counts. The circuit court sentenced Esco to life without parole on all counts, with the sentences in counts one through five to run concurrently, but the circuit court set count six to run consecutively to the other counts. As a result, Esco effectively must serve two consecutive life sentences. Esco now appeals.

ANALYSIS

I. WHETHER THE CIRCUIT COURT ERRED IN ALLOWING THE PROSECUTION TO INTRODUCE MICHAEL JOHNSON’S GUILTY PLEA COLLOQUY ON REDIRECT.

¶ 25. During cross-examination of Johnson, Esco’s attorney attempted to impeach Johnson’s direct testimony with portions of Johnson’s guilty plea colloquy. Esco’s attorney intended to demonstrate that Johnson left out details during his guilty plea discussion with the circuit court, whereas he was much more specific during Esco’s trial. Specifically, Esco’s attorney noted that on direct, Johnson testified that Sanders used a nine-millimeter pistol when they tried to rob James. Esco’s attorney stated, “when you entered your plea of guilty on July 31st of this year, you did not tell the court that a nine-millimeter gun was involved, did you? You just said it was a revolver!.]” Esco’s attorney then stated, “you never told the court, did you, that [Esco] came and picked you up at Target? You never told them that, did you? You just told them y’all met over there at [Esco’s] apartment, didn’t you?” Johnson responded that, during his guilty plea, the circuit court “was questioning [him]. The questions that [the circuit court] asked [him], [he] was answering them. [He] didn’t just say specifically about [sic] anything.”

¶ 26. On redirect, the prosecution asked Johnson whether his testimony was consistent with his statements made during his guilty plea. Johnson said it was. Johnson explained that his present testimony was more detailed than his statements made during his guilty plea. The prosecution then moved to introduce Johnson’s thirty-two page plea colloquy as an exhibit to Johnson’s testimony on the basis that it was a prior consistent statement.

¶ 27. Esco’s attorneys objected on the basis that the guilty plea colloquy was (1) improper bolstering, (2) cumulative, and (3) introduction of the entire statement would incorporate topics about which Johnson did not testify during cross-examination. The prosecution argued that Johnson’s entire guilty plea colloquy was admissible as a prior consistent statement pursuant to Mississippi Rule of Evidence 801(d)(1). The circuit court concluded that Johnson’s entire guilty plea colloquy was admissible as a prior consistent statement, and “[i]t doesn’t have to be redacted because the only other things in there are they are advising him of his rights in going throughout the colloquy that I’m required to go through, and that’s not prejudicial at all to anything.” On appeal, Esco claims the circuit court committed reversible error when it allowed the prosecution to introduce Johnson’s entire guilty plea colloquy. We disagree.

¶ 28. In reviewing this issue, we are mindful that:

the admissibility of evidence rests within the discretion of the trial court. However, this Court must also determine whether the trial court employed the proper legal standards in its fact findings governing evidence admissibility. If in fact the trial court has incorrectly perceived the applicable legal standard in its fact findings, the Court applies a substantially broader standard of review. However, a denial of a substantial right of the defendant must have been affected by the court’s evidentiary ruling. Furthermore, the trial court’s discretion must be exercised within the scope of the Mississippi Rules of Evidence and reversal will be appropriate only when an abuse of discretion resulting in prejudice to the accused occurs.

Clemons v. State, 732 So.2d 883, 887-88(¶ 18) (Miss.1999) (quoting Peterson v. State, 671 So.2d 647, 655-56 (Miss.1996)).

¶ 29. Counsel for Esco did not object to the admissibility of Johnson’s guilty plea colloquy based on hearsay. An “[o]b-jection on one ground at trial waives all other grounds for objection on appeal.” Rubeustein v. State, 941 So.2d 735, 758(1175) (Miss.2006). Accordingly, it is unnecessary to analyze this issue as it pertains to whether the guilty plea was inadmissible hearsay as Esco may not raise this issue for the first time on appeal.

¶ 30. Instead, counsel for Esco objected to the introduction of Johnson’s guilty plea colloquy on the basis that it was (1) improper bolstering, (2) cumulative, and (3) beyond the scope of cross-examination. During cross-examination, Esco’s attorney attempted to impeach Johnson with his guilty plea colloquy to show that Johnson omitted certain facts during his guilty plea, yet testified to those facts during Esco’s trial. Therefore, introduction of Johnson’s guilty plea colloquy was admissible to rehabilitate Johnson’s testimony in that it tended to demonstrate that the circuit court did not focus on those facts during Johnson’s guilty plea. That is, Johnson’s entire guilty plea showed that Johnson did not necessarily omit facts as much as the circuit court focused on certain facts during the guilty plea and did not ask Johnson to elaborate on those matters to the degree to which he testified at Esco’s trial.

¶ 31. We cannot conclude that the circuit court abused its discretion when it allowed the prosecution to introduce Johnson’s entire guilty plea colloquy. The guilty plea colloquy was admissible to rebut Esco’s direct and implied charge of omission and/or fabrication of necessary facts. While we do not hold that entire guilty pleas are always admissible, under these precise circumstances, the entire guilty plea was necessary to demonstrate that Johnson only left out certain details in his guilty plea because the circuit court did not necessarily focus on those details. Because the circuit court did not abuse its discretion, we find no reversible error in this issue.

II. WHETHER THE CIRCUIT COURT ERRED IN FAILING TO INSTRUCT THE JURY THAT JOHNSON’S STATEMENT COULD NOT BE CONSIDERED AS SUBSTANTIVE EVIDENCE.

¶ 32. Esco claims the circuit court committed l'eversible error when it did not sua sponte instruct the jury that it could not consider Johnson’s guilty plea colloquy as substantive evidence. The State insists that because Esco did not request a limiting instruction, Esco is procedurally barred from asserting this issue on appeal, and the lack of a limiting instruction was not plain error. We agree. Pursuant to Mississippi Rule of Evidence 105, “[w]hen evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.” (emphasis added). Rule 105 places the burden of requesting a limiting instruction upon counsel. Rushing v. State, 911 So.2d 526, 540(1132) (Miss.2005). Consequently, this issue is procedurally barred for failure to request a limiting instruction at trial.

III. WHETHER THE CIRCUIT COURT ERRED IN ALLOWING THE PROSECUTION TO INTRODUCE A 1991 CONVICTION OF STRONG-ARM ROBBERY WHEN ESCO WAS SIXTEEN YEARS OLD WITHOUT FIRST DETERMINING WHETHER THIS EVIDENCE WAS MORE PREJUDICIAL THAN PROBATIVE.

¶ 33. This issue stems from the prosecution’s decision to use Esco’s 1991 conviction for strong-arm robbery as proof of Esco’s status as a prior convicted felon to prove Esco was guilty of possession of a firearm by a prior convicted felon. Pre trial, Esco sought to prohibit the prosecution from introducing evidence of Esco’s 1991 strong-arm robbery conviction at trial. Esco argued that because he had been previously convicted of other felonies, the prosecution did not need to bring up the 1991 conviction to prove that Esco was a prior convicted felon. Esco also argued that it would affect his ability to testify in his defense.

¶ 34. The prosecution argued that it could use whatever evidence it chose to prove its case. The circuit court held:

the State is allowed to put on the case they want to put on, not what a defendant wants. And I realize there may be some attendant difficulties to a defendant in that regard, but this is not a Peterson situation, it’s not an impeachment where the court needs to weigh the factors relative to similarity. It is a State’s substantive elements proof, so the State will be allowed to do that.

Esco claims the circuit court committed reversible error. We disagree.

¶ 35. At the outset, it is necessary to distinguish this issue from those pertaining to use of prior convictions as a method to impeach a witness. The prosecution did not use Esco’s prior conviction to impeach him. Instead, the prosecution used Esco’s prior conviction as substantive evidence of Esco’s status as a prior convicted felon as it relates to his possession of a firearm. However, Esco submits that the prosecution’s use of Esco’s 1991 strong-arm robbery conviction was still impermissible. According to Esco, “[t]he United States Supreme Court addressed this very issue” in Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997).

¶ 36. In Old Chief, the Supreme Court held that a trial court committed reversible error when it allowed the prosecution to present evidence of a pri- or assault conviction to prove that the defendant was a prior convicted felon in possession of a firearm. Notably, the Supreme Court’s decision turned on the fact that the defendant in Old Chief offered to stipulate that he was a prior convicted felon. Id. at 186, 117 S.Ct. 644. Esco draws our attention to the fact that, during his case-in-chief, he testified and admitted that he was a prior convicted felon. Esco cites Langley ex rel. Langley v. Miles, 956 So.2d 970, 973(¶ 8) (Miss.Ct.App.2006) for the proposition that an admission is the equivalent of a stipulation. Esco argues that because he admitted he was a prior convicted felon during his case-in-chief, he, in effect, stipulated that he was a prior convicted felon. Esco’s argument has no merit in law or logic.

¶ 37. The prosecution was obligated to prove its case during its case-in-chief. Had the prosecution sat back, failed to prove that Esco was a prior convicted felon, and neglected to offer any proof of Esco’s status as a prior convicted felon, Esco could have successfully moved for a directed verdict after the prosecution ceased its case-in-chief. To that end, an admission after the prosecution ceases its case-in-chief is not the equivalent of a stipulation. Had Esco stipulated that he was a prior convicted felon, then this case would be similar to Old Chief, but Esco did not offer to stipulate. Accordingly, this case is not like Old Chief, and “the prosecution [was] entitled to prove its case by evidence of its own choice, or, more exactly, that a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it.” Old Chief, 519 U.S. at 186-87, 117 S.Ct. 644. We cannot find that the circuit court abused its discretion. Consequently, we find no merit to this issue.

IV. WHETHER THE CIRCUIT COURT ERRED IN NOT GIVING A LIMITING INSTRUCTION REGARDING THE PROPER USE OF ESCO’S PRIOR CONVICTIONS.

¶38. In this issue, Esco claims the circuit court committed reversible error when it did not sua sponte give a limiting instruction regarding the prosecution’s use of Esco’s conviction for strong-arm robbery. As in issue two, the State claims Esco is procedurally barred from raising this issue for the first time on appeal. We agree.

V. WHETHER THE CIRCUIT COURT ERRED IN OVERRULING ESCO’S OBJECTION TO BEING CROSS-EXAMINED AS TO WHETHER THE LAW ENFORCEMENT WITNESSES WERE LYING.

¶ 39. During the cross-examination of Esco, the prosecution asked him whether law enforcement witnesses were lying when they testified. Counsel for Esco objected and suggested that it was improper for the prosecution to “compar[e] one testimony to another one.” The circuit court overruled the objection and said, “[y]ou asked that another witness lied and the State can do the same thing if you do it.” The prosecution proceeded to ask Esco whether at least four law enforcement witnesses lied. Esco responded that those officers, in fact, lied when they testified as to what Esco was doing or what he said when they saw him at the Parc Apartments.

¶ 40. Esco claims the circuit court committed reversible error when it allowed the prosecution to ask him whether those law enforcement officers lied. We are mindful that:

[attorneys are afforded wide latitude in arguing their cases to the jury but are not allowed to employ tactics which are inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury. We will review allegations of misconduct to determine whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.

Ross v. State, 954 So.2d 968, 1001(¶70) (Miss.2007) (internal citations and quotations omitted).

¶ 41. Eseo cites numerous cases from other jurisdictions, but he cites no Mississippi authority to support his argument. According to the State, because Esco cites no Mississippi authority for this issue, it is procedurally barred. We reject the State’s meritless argument for a procedural bar in this instance. If we were to follow the State’s reasoning, our body of law would be reduced to a stalemate and would never progress beyond that which exists at this very moment. Be that as it may, neither party cites any Mississippi precedent that has addressed this particular issue.

¶ 42. Other jurisdictions have reviewed similar issues and have reached various results. There are three competing views regarding whether a prosecutor may ask a defendant whether prosecution witnesses lied during their testimony. Many jurisdictions have adopted one of two bright-line rules. That is, some jurisdictions have concluded that it is categorically improper for the prosecution to ask a defendant whether prosecution witnesses lied. In contrast, at least two states have found it categorically proper to ask such questions. See, e.g., Manzano v. State, 282 Ga. 557, 651 S.E.2d 661, 664 (.2007); Fisher v. State, 128 Md.App. 79, 736 A.2d 1125, 1162-64 (1999), vacated in part on other grounds by Fisher v. State, 367 Md. 218, 786 A.2d 706, 744 (2001).

¶ 43. Finally, other jurisdictions have declined to adopt a bright-line rule and have, instead, reached conclusions regarding the propriety of such questions based on other circumstances. For example, the Illinois Supreme Court reached such a result in People v. Kokoraleis, 132 Ill.2d 235, 138 Ill.Dec. 233, 547 N.E.2d 202, 216 (1989), in which it stated that while “it is generally improper to ask a witness on cross-examination whether an adverse witnesses] testimony is truthful,” because the defendant testified that the police “framed” him by providing him with information about the murders and caused him to repeat those facts in his statements, the cross-examination at issue was not inappropriate. See also People v. Overlee, 236 A.D.2d 133, 140, 666 N.Y.S.2d 572 (N.Y.App.Div.1997); State v. Hart, 303 Mont. 71,15 P.3d 917, 923-24 (2000).

¶ 44. In State v. Pilot, 595 N.W.2d 511, 517 (Minn.1999), a prosecutor asked a defendant to comment on the veracity of three of the prosecution’s witnesses. The Minnesota Supreme Court held that, in general, “were they lying” questions are improper, but such questions were not categorically improper. Id. at 518. The Minnesota Supreme Court stated that, under certain circumstances, “were they lying” questions could have probative value: (a) “in clarifying a particular line of testimony,” (b) “in evaluating the credibility of a witness claiming that everyone but the witness lied or,” (c) where the witness “flatly denies the occurrence of events.” Id. Because the defendant’s theory of the case in Pilot “was that the [S]tate’s witnesses were lying and that the evidence against him was fabricated as part of a vast conspiracy to convict him of a crime he did not commit” the credibility of the State’s witnesses was “in central focus.” Id. Accordingly, the Minnesota Supreme Court found no error with the prosecution’s use of “were they lying” questions because such questions “could well have assisted the jury in weighing [the defendant’s] own veracity and in evaluating his conspiracy theory.” Id.

¶ 45. Though we do not reach a general conclusion regarding whether such questions are per se proper or improper, we find the reasoning in Pilot persuasive. It is clear that Esco’s theory of the case was that the law enforcement officers and the prosecution formed a conspiracy effort to connect him to the events that took place at McDonald’s. During opening statements, counsel for Esco told the jury:

So now they take [Sanders] to the jail. They start talking to [Sanders], Look, you’re a little fish in big pond. We’re not really interested in you. We’re interested in [Esco]. You put [Esco] in this deal, they’re going to tell him. He gives a video statement, which you’ll probably see. He testifies, and we intend to call him. You’ll probably see a video where he says [Esco] was in it, and he was the one that planned all this, and schemed it and so forth. Well, the bottom line is it didn’t help. He got a 40-year sentence on a plea of guilty. He pled guilty and got 40 years. He has already been sentenced. And he is going to tell you, as he has already told the district attorney’s office, [Esco] really didn’t have anything to do with this.
Now, Michael Johnson on the other hand, we will show you, insisted on his innocence up until July 31st of this year, at which time he entered a plea of guilty on the condition that he, quote, truthfully tell the story, and put [Esco] in it.

¶ 46. Counsel for Esco clearly argued that the prosecution was not interested in Sanders, but was interested in Esco-so much so that the prosecution misled Sanders into implicating Esco and that it did not “help” Sanders to do so. Counsel for Esco went on to state that the prosecution only offered a plea bargain to Johnson in exchange for “put[ting] Esco in it.”

¶ 47. Esco added to his conspiracy theory of the case during his direct testimony. Esco testified that when the Mustang pulled into the parking lot at the Parc Apartments, he went outside to find Sanders and “John,” but he could not find them. According to Esco, two police officers approached him on foot. Esco’s attorney asked Esco whether he knew those two officers, and Esco responded, “[y]eah, they pull me over almost every other night when I be going home.” Later, Esco testified that the law enforcement officers set up a lineup and placed him in it. Esco went on to testify that “they came through several times. Several times he rode through and they kept looking. And then I heard one officer say that, he said, damn, you know, he said, damn, just like that. He said, he didn’t pick Feriando.” That is, according to Esco, the officer was disappointed when Esco was not identified. Esco further testified that “[a]ll of the officers got on the stand, and these officers pull me over almost every other night. If they seen [sic] me driving that Mustang or seen a black male driving that Mustang, they’d noticed me because they pull me over.” Esco unequivocally connected law enforcement in general with a desire to implicate him in the events at McDonald’s. Additionally, Esco clearly testified that each and every officer had a general preexisting bias toward him.

¶ 48. Further, it is noteworthy that the prosecution did not initially ask Esco whether all of the law enforcement officers were lying. Shortly before Esco’s attorney concluded his examination of Esco, Esco’s attorney asked, “did you answer all [the law enforcement officers’] questions?” Esco responded, “[y]es, sir.” On cross-examination, the prosecution asked Esco whether he made a particular statement to Officer Young. Esco denied that he made that statement. The prosecution then asked Esco whether Officer Young lied when he testified that Esco made that statement. Esco could have testified that Officer Young was mistaken, but he did not. Instead, over objection, Esco testified, “[h]e lied, and it’s some more officers lied.” At that point, the prosecution began to question Esco regarding which officers lied — which was absolutely within the prosecution’s cross-examination rights. “[T]he right of confrontation and cross-examination ... extends to and includes the right to fully cross[-]examine the witness on every material point relating to the issue to be determined that would have bearing on the credibility of the witness and the weight and worth of his testimony.” Nalls v. State, 651 So.2d 1074, 1076 (Miss.1995).

¶49. To be sure, the credibility of a witness is solely for the jury to weigh and consider. Harris v. State, 970 So.2d 151, 156(¶ 20) (Miss.2007). Be that as it may, under the precise circumstances of this matter, the cross-examination at issue was not improper and did not constitute any form of prosecutorial misconduct. The prosecution was entitled to rebut Esco’s theory of the case. The natural effect of that rebuttal was not to create unjust prejudice against Esco, and it did not result in a decision influenced by prejudice. Accordingly, we find no merit to this issue.

VI. WHETHER ESCO WAS DENIED A FAIR TRIAL WHEN THE PROSECUTION WAS ALLOWED, ON REDIRECT, TO ASK THE LAW ENFORCEMENT WITNESSES TO VOUCH FOR THEIR OWN CREDIBILITY.

¶ 50. In its rebuttal case, the prosecution called four law enforcement officers. The prosecution asked three of those officers whether they testified truthfully during the prosecution’s case-in-chief. Esco claims this was improper redirect. According to Esco, it is not permissible for the prosecution to ask the officers to vouch for their own credibility. Esco did not raise this issue at trial. He is procedurally barred from raising it for the first time on appeal. Boggan v. State, 894 So.2d 581, 584(¶ 10) (Miss. Ct.App.2004).

VII. WHETHER THE CIRCUIT COURT ERRED IN ALLOWING THE PROSECUTION TO INTRODUCE A DOCUMENT PREPARED BY THE POLICE PURPORTING TO BE A LIST OF THE INCOMING AND OUTGOING PHONE CALLS PRESENT ON STATE’S EXHIBIT 26, A CELL PHONE.

¶ 51. In his seventh issue, Esco finds fault with the circuit court’s decision to allow the introduction of a summary of phone calls from Esco’s cell phone. During Investigator Brown’s testimony, the circuit court allowed the prosecution to submit into evidence a list of outgoing and incoming calls that Investigator Brown prepared by examining Esco’s cell phone. Counsel for Esco objected. The circuit court asked Esco’s attorney for the basis of his objection. Esco’s attorney responded, “[b]ecause there’s no indication on his list what the date was, that the calls came in and went out. He just testified to it. If they’re telling me that I can take that phone right now and hook it up and it would show those and show that it was on June 14th, I wouldn’t have a problem with it.” The prosecution responded that the list was admissible as a summary pursuant to Mississippi Rule of Evidence 1006. The circuit court then overruled Esco’s objection.

¶ 52. Esco claims the circuit court committed reversible error. According to Esco, the list was inadmissible hearsay that did not fall under any exception to the hearsay rule. However, Esco did not object on the basis that the list was hearsay at trial, and he may not do so for the first time on appeal. Accordingly, our analysis does not address the admissibility or inadmissibility of the summary in light of its status as hearsay.

¶ 53. Esco’s objection at trial seems to have been that he could not verify that the summary was accurate. However, the record indicates that the prosecution supplemented its discovery responses prior to the trial, and there is no indication that the prosecution did not divulge prior to trial that it would present evidence from Esco’s cell phone. If the prosecution did not divulge that it would present Esco’s incoming and outgoing cell phone records, Esco failed to provide this Court with sufficient information to reach that conclusion. It is Esco’s burden to provide this Court with an adequate record. What is more, Esco did not object on the basis that he was unaware that the prosecution would submit the incoming and outgoing cell phone calls as evidence. Accordingly, Esco’s attorney could have reviewed the cell phone’s call log at any time prior to trial, and if there was any inconsistency between Esco’s actual call log and Investigator Brown’s summary, Esco’s attorney could have cross-examined Investigator Brown regarding those inconsistencies. Accordingly, we find no merit to this issue.

VIII. WHETHER THE CIRCUIT JUDGE ERRED IN CONSULTING WITH THE JURY PRIOR TO PRONOUNCING SENTENCE.

¶ 54. After the jury found Esco guilty on all counts, the circuit judge recessed to visit with the jury. When the recess was over, the circuit judge sentenced Esco. Esco claims the circuit judge erred by conferring with the jury outside of his presence. In particular, Esco takes issue with the circuit court’s statement, “I was somewhat surprised at the amount of anxiety I saw on some of the potential jurors’ faces and heard, even up here at the bench, on some others. They just simply are scared of you.” According to Esco, by visiting with the jury outside of his presence, the circuit court was exposed to information that he did not have a chance to rebut. Esco claims this Court must vacate his sentence and remand this matter. We disagree.

¶ 55. Apparently, Esco’s appellate counsel misunderstands the circuit judge. That misunderstanding is most likely due to counsel’s omission of the circuit judge’s entire statement, and that can be remedied by examining the circuit judge’s entire statement after sentencing Esco. The circuit judge did not state that he recognized fear from the jurors during his visit with them after they reached their verdict. Instead, the circuit judge stated, “[d]uring the process of voir dire, I was, I guess for lack of a better word, somewhat surprised at — I mean I have been at this for a while. I was somewhat surprised at the amount of anxiety I saw on some of the potential jurors’ faces and heard, even up here at the bench, on some others. They just simply are scared of you.” (emphasis added).

¶ 56. Esco was sentenced as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83 (Rev.2007). Accordingly, the circuit judge had no discretion in sentencing Esco, as section 99-19-83 mandated that the circuit judge sentence Esco to life imprisonment for each conviction. Therefore, nothing that could have been discussed during the circuit judge’s recess could have influenced the circuit judge, and nothing Esco could have said in rebuttal could have altered the circuit judge’s decision. As a result, we find no merit to this issue.

IX. WHETHER THE ERRORS TAKEN TOGETHER ARE CAUSE FOR A NEW TRIAL.

¶ 57. Esco claims this Court must reverse due to the cumulative effect of the errors. We have not found that the circuit court committed any errors. It follows that there can be no cumulative effect of errors. Accordingly, we find no merit to this issue.

¶ 58. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, AGGRAVATED ASSAULT, AND SENTENCE OF LIFE IMPRISONMENT; COUNT II, ARMED ROBBERY, AND SENTENCE OF LIFE IMPRISONMENT; COUNT III, CONSPIRACY TO COMMIT AGGRAVATED ASSAULT, AND SENTENCE OF LIFE IMPRISONMENT; COUNT IV, CONSPIRACY TO COMMIT ARMED ROBBERY, AND SENTENCE OF LIFE IMPRISONMENT; COUNT V, POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCE OF LIFE IMPRISONMENT; AND COUNT VI, FELONY EVASION, AND SENTENCE OF LIFE IMPRISONMENT, WITH SENTENCES FOR COUNTS I, II, III, IV, AND V TO RUN CONCURRENTLY AND SENTENCE FOR COUNT VI TO RUN CONSECUTIVELY TO COUNTS I, II, III, IV, AND V, ALL AS A HABITUAL OFFENDER, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, AND IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . James was treated by Dr. James Kolb, an emergency room physician at the University of Mississippi Medical Center. Dr. Kolb testified; the projectile was not retrieved from James, that the projectile fragmented into two pieces after it entered James's chest, “shattered a couple of ribs,” damaged the lower part of James's right lung, and damaged part of James's liver.

      . Johnson testified in exchange for a deal with the prosecution. Johnson is Isaiah Sanders's cousin, and Johnson met Esco while Johnson was incarcerated for carjacking.

      . Esco later testified that "John is known as [Sanders's] brother, but I don't know that, you know.” Esco elaborated that he thought Sanders and John were brothers, but he was not certain of that. However, during cross-examination, Esco testified that he did not know if John was Sanders's "brother, cousin or what.” Esco was able to describe John, though. Esco described John as having "small dreads ... dark skinned, and about, I’d say about six-one, somewhere off in there." Esco also testified that John was "from Miami, but [he was] staying in Jackson.” Esco was not certain whether John was still in Jackson at the time of his trial.

      . To be precise, Langley does not unequivocally hold that an admission is the same thing as a stipulation. Instead, Langley held that "Rule 36(b) states that any matter admitted pursuant to the rule ‘is conclusively established unless the court on motion permits the withdrawal or amendment of the admission.’ A matter deemed admitted due to a failure to timely serve responses is the functional equivalent of a stipulation or an admission in a pleading." Langley, 956 So.2d at 973(118) (emphasis added).

      . See Daniel v. State, 119 Nev. 498, 78 P.3d 890, 904 (2003); Beaugureau v. State, 56 P.3d 626, 635-36 (Wyo.2002); State v. Singh, 259 Conn. 693, 793 A.2d 226, 239 (2002); Knowles v. State, 632 So.2d 62, 65-66 (Fla. 1993) (holding that the error was harmless); State v. Casteneda-Perez, 61 Wash.App. 354, 810 P.2d 74, 79 (1991); State v. Flanagan, 111 N.M. 93, 801 P.2d 675, 679 (Ct.App.1990) (holding that the error was harmless).


source: Caselaw Access Project

license: Public Domain

text:
    MISSISSIPPI EMPLOYMENT SECURITY COMMISSION a/k/a Mississippi Department of Employment Security a/k/a MESC a/k/a MDES and City of Clinton, Appellants, v. Linda JOHNSON, Appellee.
    No. 2007-CC-02236-COA.
    Court of Appeals of Mississippi.
    March 24, 2009.

      Kenneth R. Dreher, Ridgeland, Albert B. White, Madison, attorneys for appellants.

      Courtney McReynolds Williams, Michael A. Heilman, Patricia J. Kennedy, Jackson, attorneys for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. Linda Johnson was terminated from her position as receptionist for the City of Clinton (Clinton). The Hinds County Circuit Court held that Johnson was entitled to unemployment benefits. Clinton and the Mississippi Department of Employment Security (MDES) appeal and raise the following issue:

Whether the circuit court erred, as a matter of law, by failing to affirm the actions and findings of the administrative law judge and the Board of Review of the Mississippi Department of Employment Security.

Finding no error, we affirm the judgment of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 2. From November 1, 2003, through October 27, 2006, Johnson worked as a receptionist for Clinton’s parks and recreation department. On three occasions, Johnson had been counseled for violating section 8.2.2 of Clinton’s Personnel Rules & Regulations. Additionally, Johnson had been made aware on many occasions that her job performance was unsatisfactory.

¶3. On October 4, 2005, Johnson was issued a warning for insubordination for failing to follow the instructions of her interim supervisor. Specifically, although Johnson’s supervisor told her to leave her workstation open, Johnson locked her desk when she went to lunch. In July 2006, Johnson was given an assignment to prepare passes for a softball tournament. Johnson failed to have the passes completed on time. Johnson received a written warning. On August 16, 2006, Johnson was issued another warning and was suspended for three days for leaving a cash drawer unlocked and unsecured overnight. Clinton terminated Johnson after she failed to complete a project that involved printing and mailing over 500 letters to participants in the National Senior Olympics Games.

¶ 4. Just prior to her termination, Johnson filed a grievance with her employer concerning her supervisor, the director of parks and recreation. Johnson felt discriminated against because of her age, and she considered her supervisor’s conduct toward her as hostile. The charges were found to be unwarranted.

¶ 5. Johnson filed for unemployment benefits. Johnson initially received benefits. However, Clinton appealed and sent copies of the written warnings, performance evaluation, personnel policy, and other documents to the MDES. The administrative law judge conducted a hearing and reversed the claims examiner’s decision to award benefits to Johnson. According to the administrative law judge, Johnson’s unsatisfactory job performance constituted misconduct. Additionally, the administrative law judge ordered Johnson to repay the $1,512 that she had received for unemployment benefits.

¶ 6. Johnson appealed the administrative law judge’s decision, but the board of review affirmed the administrative law judge’s decision that Johnson was not entitled to benefits. Johnson next appealed to the Hinds County Circuit Court. The circuit court reversed the administrative law judge and found that Johnson’s conduct did not rise to the level of misconduct. Consequently, the circuit court reinstated Johnson’s unemployment benefits. Clinton and MDES appeal.

ANALYSIS

¶ 7. Appellate courts conduct a limited review of the decisions of the MDES. Hodge v. Miss. Employment See. Comm’n, 757 So.2d 268, 270(¶5) (Miss. 2000). “When reviewing a decision of the [MDES], this Court must affirm when the decision is supported by substantial evidence.” Reeves v. Miss. Employment See. Comm’n, 806 So.2d 1178, 1179(¶ 5) (Miss.Ct.App.2002). We will only disturb the MDES’s decision if it “1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates one’s constitutional rights.” Allen v. Miss. Employment Sec. Comm’n, 639 So.2d 904, 906 (Miss.1994). We “must not reweigh the facts of the case or insert [our] judgment for that of the agency.” Id. Pursuant to Mississippi Code Annotated section 71-5-531 (Rev.2000), “[i]n all judicial proceedings under this section, the findings of the Board of Review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.”

¶ 8. “An individual shall be disqualified for benefits ... [if] he was discharged for misconduct connected with his work[.]” Miss.Code Ann. § 71-5-513(A)(1)(b) (Rev.2000). “[T]he burden of proof of misconduct shall be on the employer.” Miss.Code Ann. § 71-5-513(A)(1)(c) (Rev.2000). Additionally, the employer is required to prove misconduct by “substantial, clear and convincing, evidence.” Ferrill v. Miss. Employment Sec. Comm’n, 642 So.2d 933, 936 (Miss.1994). “Misconduct” is defined as follows:

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

Wheeler v. Amóla, 408 So.2d 1381, 1383 (Miss.1982).

¶9. This Court concurs with the circuit court’s conclusion that Clinton did not present enough evidence to meet its burden of proof of substantial, clear and convincing evidence that Johnson committed misconduct within the meaning of Wheeler. Clearly, Johnson’s performance did not meet the expectations of her supervisor. Clearly, Johnson lacked the necessary computer training to perform the tasks expected of her. Johnson testified that she attempted to take a computer class, at her own expense, at the local community college. Johnson also testified that she could not meet the class schedule because of her schedule at work and her employer’s unwillingness to allow her to leave her job thirty minutes early so she could timely attend the class.

¶ 10. Additionally, Johnson testified that she requested help with the mailing project from Gisele Champlin, the administrative assistant to the director of Clinton’s department of parks and recreation. The evidence indicated that: Champlin either failed to finish instructing Johnson, Champlin experienced computer problems, or Champlin was also unable to figure out how to complete the mail project. Johnson entered the 550 addresses into the computer and had printed 550 letters, but another supervisor found the letters unacceptable. While there is no dispute that Johnson did not complete the project, her unsuccessful efforts cannot correctly be classified as misconduct.

¶ 11. Johnson’s failure to complete these work projects were the result of simple inability, inefficiency, lack of training, and/or inexperience. “The employer has the burden of showing by ‘substantial, clear and convincing evidence’ that the former employee’s” actions warrant a finding of misconduct disqualifying him or her from benefits. City of Clarksdale v. Miss. Employment Sec. Comm’n, 699 So.2d 578, 580(¶ 15) (Miss.1997). As mentioned, “[mjere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadver-tences and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion [are] not considered misconduct.” Wheeler, 408 So.2d at 1383 (internal quotations omitted). We agree with the circuit court that Clinton failed to meet its burden of establishing substantial, clear and convincing proof that Johnson was discharged for misconduct within the context of Mississippi statutory law.

¶ 12. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ., CONCUR. MAXWELL, J., NOT PARTICIPATING.

      . Johnson had been counseled on October 4, 2005, July 31, 2006, and August 16, 2006.


author: ISHEE, J.,

text:
    Floyd MARSHALL, Appellant v. Carolyn LINDSLY, Appellee.
    No. 2007-CA-01737-COA.
    Court of Appeals of Mississippi.
    April 14, 2009.

      Sorie S. Tarawally, Jackson, attorney for appellant.
    Derek L. Hall, Jackson, attorney for appellee.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Floyd Marshall filed a complaint in the Chancery Court of the First Judicial District of Hinds County against Carolyn Lindsly seeking relief, including specific performance of a lease agreement and commercial property contract. In return, Lindsly filed a Rule 12(b)(6) motion to dismiss and a counterclaim for eviction and damages. Following a trial on the merits, the chancery court found that Marshall’s complaint and Lindsly’s counterclaim were partially well taken and granted certain relief requested by each party. Aggrieved, Marshall appeals, asserting that although the chancery court was correct in ordering specific performance of the contract, it erred in (1) failing to credit Marshall for all periodic payments he made to Lindsly’s agent after timely exercising the option to purchase contained in the lease agreement, (2) ordering Marshall to pay Lindsly’s attorney’s fees, and (3) failing to order Lindsly to pay Marshall’s attorney’s fees.

FACTS

¶ 2. This case concerns a contract dispute involving a commercial lease agreement that Marshall and Lindsly entered into on September 7, 2004, for a hardware store located at 558 West Northside Drive in Jackson, Mississippi (hereinafter referred to as “the Property”). The lease agreement contained an option to purchase clause which provided Marshall with financial guidelines and timelines if he wished to purchase the Property.

¶ 3. On or about January 10, 2005, Marshall wrote a letter to Joe Dove, who was acting as the Property’s real estate agent and property manager, expressing his intent to purchase the Property. In his letter, Marshall wrote the following:

This letter is to respond to you concerning my intent to purchase property at 558[W]est [N]orthside [D]r. Please accept this letter as my notice of intent to purchase the above mention[ed] property. We need to set up arrangements to do all the legal work and also a closing date. I am sending you [the] January lease amount [and we] also need to determine the best way to handle any other payment until sale completion.

Marshall’s letter also informed Dove that he hoped they could arrange a time to meet and begin the process during the first week of February, as he would be traveling a great deal throughout the rest of that month. Dove contacted Don McLemore, a real estate attorney, to conduct a title search and close the transaction. The commercial property contract was executed by Marshall on February 16, 2005, and by Lindsly on February 18, 2005.

¶ 4. Dove was out of the country at the beginning of April, but Marshall and McLemore attempted to keep the transaction moving forward. Marshall asked to take title of the property in the name of Phoenix II Enterprises, LLC; however, the loan papers had to be in Marshall’s name because McLemore was unable to acquire a copy of the certificate of formation for Phoenix II Enterprises, LLC from the Secretary of State. McLemore emailed Marshall on April 14, 2005, stating that the closing date would be the following day, Friday, April 15, at 2:00 p.m. He requested that Marshall bring a certified check for closing costs in the amount of $15,450.33, a personal check in case the monetary amount changed, a current driver’s license, an additional form of identification, and a copy of the proof of insurance with proof of payment attached. Marshall responded to McLemore’s e-mail at 3:30 a.m. EDT on Friday, April 15, and said that he would not be able to make the 2:00 closing that afternoon. McLemore replied later that morning at 9:20 a.m. advising Marshall that the closing amount had increased to $16,452.23 due to the addition of taxes for the period of the lease.

¶ 5. On Tuesday, April 19, 2005, McLe-more sent Marshall another e-mail letting him know that the funds to close changed as of that day. The e-mail also stated that Lindsly had executed the necessary closing documents on Friday, April 15, and that the contract required for the closing to take place within a reasonable time after the title was cured; otherwise, Marshall would be considered in breach of contract. Marshall responded that after reviewing Item 27 in the lease agreement and Item 10 in the commercial property contract, he believed that the amount due from the borrower should be $9,875.

¶ 6. Dove mailed Marshall a letter on July 6, 2005, which informed Marshall that he was in default of the terms of the signed lease agreement. The letter stated that Marshall owed $5,250 for his third quarter lease payment and $539.32 for tax reimbursement. Dove followed up with emails regarding the status of the transaction on July 12, 2005, and July 26, 2005. The e-mails continued back and forth for several months, but little progress was made. It warrants mentioning that during this time, Dove was faced with a number of family issues, one of which was the death of his mother; as a result, he was away from the office more often than he would have been under normal circumstances.

¶ 7. Eventually, Marshall employed an attorney, Sorie Tarawally, to represent him in the matter. Tarawally wrote letters to Dove on June 8, 2006, and August 25, 2006, regarding his representation of Marshall and issues relating to the closing on the Property. Then, on January 10, 2007, Tarawally wrote a letter to Dove informing him that, effective immediately, Marshall would begin paying rent due into an escrow account or as directed by court order. The letter further stated that a lawsuit would be initiated within thirty days from that date for specific performance of the contract of sale. Lindsly also hired an attorney, and she sent official notice to Marshall requesting that he vacate the premises.

¶ 8. Marshall filed a complaint for specific performance and other relief on February 12, 2007. Lindsly, in turn, filed her answer, defenses, motion to dismiss, and counterclaim for damages and punitive damages. On March 30, 2007, Cook Commercial Properties sent two invoices to Marshall stating that he owed $12,270 in past-due rent and $4,177.58 in past-due taxes. Lindsly filed an amended answer, defenses, counterclaims, motion to dismiss, motion for injunctive relief, and for other emergency relief on April 12, 2007. Marshall then filed his motion to allow amendment of the original complaint on June 5, 2007. Finally, on June 15, 2007, Marshall and Lindsly presented testimony and evidence at trial.

¶ 9. The final judgment and opinion of the court was rendered on September 10, 2007. The chancellor ordered for the closing on the Property to occur no later than September 20, 2007, and she found that Marshall owed a total of $127,391.93, which included the $125,000 purchase price of the Property; $611 for attorney’s fees; $1,002 for prorated taxes; $532.35 for county taxes; and $246.58 for interest. The chancellor also found that Marshall was entitled to an $8,125 credit to be applied toward the Property’s purchase price for his first quarterly lease payment, earnest money deposit, and security deposit; therefore, the amount Marshall had to pay was reduced from $127,391.93 to $119,266.93. Because Lindsly agreed to finance $100,000 of the purchase transaction, Marshall was instructed to pay $19,266.93 at the closing.

¶ 10. The chancellor warned Marshall that if he did not bring the money to the closing, the commercial property contract would be void, and Marshall would be required to pay $8,750 for his failure to pay rent from August 2006 through January 2007. Furthermore, if Marshall failed to close on the property, he would have to vacate the premises by September 30, 2007. In the event that Marshall did not vacate the premises, the court stated that it would enter an order to vacate the premises, which, if not followed, would be considered as Marshall’s defaulting on his contractual duties under the lease agreement and the commercial property contract. If such were to occur, Marshall would be responsible for paying Lindsly an additional $7,988.89 for attorney’s fees, court costs, and other expenses.

STANDARD OF REVIEW

¶ 11. This Court will not reverse a chancellor’s factual findings unless the chancellor was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Holliman v. Charles L. Cherry & Assocs., Inc., 569 So.2d 1139, 1145 (Miss.1990) (overruled on other grounds). “The standard of review for questions concerning the construction of contracts are questions of law that are committed to the court rather than to the fact-finder. Appellate courts review questions of law de novo.” Cherry Bark Builders v. Wagner, 781 So.2d 919, 921(¶ 5) (Miss.Ct.App.2001) (citation omitted).

ANALYSIS

I. The contract entered into between the parties is clear and unambiguous.

¶ 12. Marshall believes that the chancery court correctly ordered specific performance of the contract; however, he and Lindsly appear to disagree over what specific performance should entail. Specific performance of a contract may be ordered only when the court determines that the contract is reasonably complete and reasonably definite on material points. Leach v. Tingle, 586 So.2d 799, 802 (Miss.1991).

¶ 13. “The most basic principle of contract law is that contacts must be interpreted by objective, not subjective standards. A court must effect a determination of the meaning of the language used, not the ascertainment of some possible but unexpressed intent of the parties.” Dunlap Acres, Ltd. v. Intervest Dev. Corp., 955 So.2d 345, 348(¶ 13) (Miss.Ct.App.2006) (citation omitted). The Mississippi Supreme Court has provided a three-tiered approach to be used in contract interpretation. Tupelo Redevelopment Agency v. Abernathy, 913 So.2d 278, 284(¶ 13) (Miss.2005). The reviewing court must first apply the “four corners” test, which looks to the language used by the parties in expressing their agreement. Id. If that does not give the court a clear understanding of the parties’ intentions, the reviewing court should apply the discretionary “canons” of contract construction. Id. Finally, if the parties’ intentions still remain unclear, the reviewing court should consider extrinsic or parol evidence. Id.

¶ 14. This Court will enforce a contract that is “clear, definite, explicit, harmonious in all its provisions, and is free from ambiguity.” Bert Allen Toyota, Inc. v. Grasz, 909 So.2d 763, 770(¶ 20) (Miss.Ct. App.2005) (citation omitted). We find that the language used in both the lease agreement and the commercial property contract falls within those parameters and should be enforced. We also find that the commercial property contract between Marshall and Lindsly is reasonably complete and definite, thus allowing specific performance to be a potential remedy.

¶ 15. Upon our review of the record, it is clear that Lindsly intended to sell the Property to Marshall, and Marshall intended to purchase the Property from Lindsly. The disagreement between the parties arose over the Property’s purchase price and closing costs; therefore, we look to the relevant provisions of the lease agreement and commercial property contract to determine the appropriate resolution. Paragraph 27 of the lease agreement is particularly important regarding Marshall’s option to purchase:

(a) This agreement provides an option for Tenant to purchase the property per thé legal description attached as Exhibit “A” prior to October 1, 2005 for the sum of One Hundred Twenty-Five Thousand and No/100 Dollars ($125,000.00), or for the sum of One Hundred Thirty-Five Thousand Dollars ($135,000.00) on or after October 1, 2005 and prior to expiration [of] the initial lease on September 30, 2007.
(b) Should Tenant elect to purchase the property by January 31, 2005, Landlord will apply first quarterly Lease payment of Five Thousand Two Hundred Fifty & No/100 ($5,250.00) to purchase price of the property. Should Tenant elect to purchase the property on or after February 1, 2005 and during the term of the initial Lease, Landlord will apply one-half of all monthly rent payments, or Eight Hundred and Seventy-Five [Dollars] and No/100 ($875.00) per month, to the purchase price of the property.
(c) With acceptable down payment, Landlord agrees to finance $100,000 of sale price of property for five (5) years at a rate not to exceed six percent (6%) amortized over fifteen (15) years. The remaining balance will be due at the end of five (5) years. There shall be no penalty for pre-payment of all or part of principle at any time during this term.
(d) Landlord, as Seller, will agree to pay [attorney’s fee for Warranty Deed and Certificate of Title. Tenant, as Buyer, will pay for Appraisal, Survey, Loan Costs and other closing costs as necessary.
(e) Tenant will notify Landlord in writing of his intention to exercise the option to purchase. Landlord will provide Purchaser with a clear title and a warranty deed of the property. Property taxes will be prorated as of the closing date and closing will be within thirty (30) days of receiving purchaser’s letter of intent to purchase.

In addition, paragraph 3 of the commercial property contract expressly states that Marshall is responsible for paying “Attorney's] Fees including Certificate of Title and transfer instrument,” and paragraph 16 says the contract “incorporates all prior agreements between the parties.”

¶ 16. Marshall decided to purchase the property prior to October 1, 2005; thus, the terms of the contract dictate that the Property’s purchase price be $125,000. In addition, the lease agreement and commercial property contract provided that Marshall would be expected to pay attorney’s fees, taxes, and interest. We, therefore, agree with the chancery court’s ruling that Marshall is responsible for paying $127,391.93, which represents $125,000 for the Property; $611 for attorney’s fees, $1,002 for prorated taxes; $532.35 for county taxes; and $246.58 for interest.

¶ 17. Marshall expressed his intent to purchase the Property in a letter written on January 10, 2005. Because this was done before January 31, 2005, paragraph 27(b) of the lease agreement provides that Marshall’s first quarterly lease payment of $5,250 will be applied toward the Property’s purchase price. In addition, paragraph 4 of the commercial property contract reads as follows: “Buyer has deposited with Broker the sum of $2,000.00 cash/ check as earnest money, which ... is to be applied to the cash down payment on closing of this transaction.” Consequently, the sum of $2,000 should also be credited toward Marshall’s outstanding balance. Finally, paragraph 5 of the lease agreement addresses the $875 security deposit and states that it “shall be returned to the Tenant after proper termination of this Lease”; therefore, Marshall may also apply that amount toward the purchase price. Accordingly, Marshall is entitled to a credit of $8,125, which reduces the total amount he must pay from $127,391.93 to $119,266.93.

¶ 18. The terms of the lease agreement also state that the closing would take place within thirty days of receiving Marshall’s letter of intent to purchase; however, the closing never occurred. We agree with the chancery court’s findings that the delay cannot be solely attributed to just one party. Both parties engaged in conduct that contributed to the delay, and while they were not necessarily acting in bad faith, neither party appeared to act diligently to effectuate the closing. Therefore, we are in agreement with the chancery court’s order that Marshall and Lindsly must exercise all due diligence in scheduling and completing the closing on the Property as soon as possible. Due to the fact that Lindsly agreed to finance $100,000 of the transaction, Marshall will be expected to pay $19,266.93 at the closing.

¶ 19. We hereby affirm the ruling of the chancery court; however, we remand this case so the chancellor may impose an appropriate schedule since his original September 2007 deadlines expired during this appeal process.

II. Marshall is not entitled to credit for all periodic payments made to Lindsly.

¶ 20. Marshall argues that the letter he wrote to Dove on January 10, 2005, properly notified Lindsly in writing of his intention to exercise the option to purchase as required by paragraph 27(e) of the lease agreement. By writing that letter, Marshall contends that the relationship between him and Lindsly was transformed from a landlord/tenant relationship to a buyer/seller relationship, and any payments he made after signing the commercial property contract should be credited toward the Property’s purchase price.

¶ 21. As previously mentioned, when construing a contract, our focus is on the objective fact — the language used by the parties. Osborne v. Bullins, 549 So.2d 1337, 1339 (Miss.1989). The commercial property contract does not contain any provisions regarding credit for lease payments, so we will instead look to the lease agreement.

¶ 22. The only reference of applying lease payments toward the Property’s purchase price is found in paragraph 27(b) of the lease agreement. It says that if Marshall were to elect to purchase the Property by January 31, 2005, Lindsly would apply his first quarterly lease payment of $5,250 to the purchase price, but if Marshall elected to purchase it on or after February 1, 2005, then one-half of all monthly lease payments ($875 per month) would be applied.

¶ 23. Marshall wrote his letter of intent before January 31, 2005. Pursuant to the terms of the lease agreement, Marshall’s first quarterly lease payment of $5,250 will be applied toward the purchase price of the Property. Neither the lease agreement nor the commercial property contract contains any provisions that would allow all of Marshall’s lease payments be applied toward the purchase price. Accordingly, we affirm the chancery court’s ruling, and this issue is without merit.

III. Lindsly is entitled to attorney’s fees.

¶ 24. Finally, Marshall contends that, under the terms of the contract, the prevailing party is entitled to receive attorney’s fees; therefore, he believes the chancery court erred in ordering him to pay Lindsly $611 for attorney’s fees. Lindsly, on the other hand, points to the language in paragraph 15 of the lease agreement where it states: “If Tenant is in default hereunder, and Landlord employs and/or consults with an attorney to give advice or to enforce or defend the Landlord’s rights or remedies hereunder, Tenant shall pay all attorney’s fees, court costs and other expenses occasioned by such Default.” In addition, Lindsly claims that because Marshall failed to comply with the chancery court’s order, he now owes her $7,988.89 in attorney’s fees.

¶ 25. “[E]nforcing a contract ‘without enforcing the clause addressing attorney's] fees would be contrary to the law.” Indus. and Mech. Contrs. of Memphis, Inc. v. Tim Mote Plumbing, LLC, 962 So.2d 632, 638(¶ 19) (Miss.Ct.App.2007) (quoting Theobald v. Nosser, 752 So.2d 1036, 1042(¶ 24) (Miss.1999)). For reasons previously discussed, we will give much deference to the lease agreement and commercial property contract. Paragraph 3 of the commercial property contract states that Marshall would be responsible for paying “[a]ttorney[’s] fees including Certificate of Title and transfer instrument,” and paragraph 27(d) of the lease agreement states that Marshall would “pay for Appraisal, Survey, Loan Costs and other closing costs as necessary.” In addition, Dove e-mailed Marshall on May 3, 2005, notifying him that the amount owed in attorney’s fees was $611. Accordingly, we affirm the chancery court’s ruling that Marshall is, in fact, responsible for paying Lindsly $611 for her attorney’s fees.

¶ 26. Lindsly’s also asserts that Marshall now owes $7,988.89 for failing to comply with the chancery court’s order. The order issued by the chancery court imposed deadlines with which the parties were instructed to comply in order to effectuate the closing. Specifically, the closing was ordered to occur no later than September 20, 2007, and, if it did not, Marshall was instructed to vacate the premises by September 30, 2007. In the event that Marshall failed to comply with the court’s orders, he would be considered as being in default of his contractual duties under the lease agreement and commercial property contract, and he would be responsible for paying Lindsly’s attorney’s fees, court costs, and other expenses in the amount of $7,988.89. Because these deadlines expired during this appeal process, we remand this case to the chancery court for the chancellor to impose an appropriate time schedule.

¶ 27. THE JUDGMENT OF THE HINDS COUNTY CHANCERY COURT IS AFFIRMED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: MYERS, P.J.,

text:
    Ruth WOOTEN, Appellant v. FRANKLIN CORPORATION and Liberty Mutual Insurance Company, Appellees.
    No. 2008-WC-00858-COA.
    Court of Appeals of Mississippi.
    April 21, 2009.

      Don Oliver Gleason, attorney for appellant.
    George E. Read, Ginger Moore Robey, Oxford, attorneys for appellees.
    Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
   MYERS, P.J.,

¶ 1. Ruth Wooten filed a petition to controvert alleging that she developed carpel tunnel syndrome as a result of her work at Franklin Corporation (Franklin). A hearing on the merits was conducted by the administrative law judge (ALJ), who ruled that Wooten was not entitled to permanent disability benefits. Wooten appealed this decision to the Mississippi Workers’ Compensation Commission (Commission), which affirmed the decision of the ALJ. Wooten then appealed the Commission’s decision to the Chickasaw County Circuit Court, which affirmed the Commission’s decision. Aggrieved, Wooten now appeals the circuit court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. Wooten began working for Franklin, which is located in Chickasaw County, Mississippi, in 1999. Her first job at Franklin was assembling metal parts. She described this work as picking up a metal washer from a bin, placing the washer on a metal part, hitting a petal that caused a rivet machine to permanently place the washer on the metal part, then pushing the metal part down the line to the next person. This work was repetitive and required her to lift five to ten pounds. She stayed at this position for approximately one-and-a-half years, before starting as the rivet-machine operator. As a rivet-machine operator, Wooten’s responsibilities were to retrieve bins of metal seat plates, take a seat plate out of a bin, place it on one of two machines that she was operating, place various pins in the seat plate using the rivet machine, and then deposit the seat plate into another bin.

¶ 3. Wooten was working as a rivet-machine operator when she was injured on February 16, 2004. Wooten described her injury as sharp pains going through her wrist causing an inability to lift anything. Dr. Bobby Smith initially examined Wooten. He placed her on restricted work duty and referred to her an orthopedic surgeon. Wooten was then examined by Dr. Alex Bigighaus, an orthopedic surgeon. Dr. Bigighaus prescribed medication, placed her in a brace, and recommended physical therapy. These prescriptions did not relieve Wooten’s pain, and a first dorsal extensor compartmental release was performed on April 2, 2004, by Dr. Bigi-ghaus. On April 13, 2004, Dr. Bigighaus reported that Wooten had no complaints and minimal discomfort in her surgically repaired hand. On April 22, 2004, Dr. Bigighaus opined that Wooten could return to work restricted to light duty. Approximately one month later, on May 21, 2004, Dr. Bigighaus concluded that Wooten had reached maximum medical improvement and found no medical reason for why she had not returned to work.

¶ 4. Following the May 21, 2004, examination, Wooten returned to work and was placed in the poly-glue plant. Her duties included retrieving the poly parts, placing them on a machine, gluing the parts together, and placing them to the side. She stayed at this position for eight to nine weeks. Wooten testified that these duties caused her hands to swell. She then decided to go see Dr. Kurt Thorderson.

¶ 5. Dr. Thorderson had previously examined and performed surgery on Wooten’s left hand. Upon his examination of Wooten, Dr. Thorderson noticed some mild swelling and tenderness on Wooten’s surgically repaired right hand. He opined that Wooten had flexor carpi radialis tunnel syndrome and gave her a cortizone shot. Dr. Thorderson opined that Wooten had reached maximum medical improvement on September 23, 2004. He gave her a zero percent impairment rating and placed her on a two-pound permanent weight-lifting restriction. Wooten returned to Franklin after being examined and diagnosed by Dr. Thorderson. She informed Franklin’s personnel about the restrictions that were placed on her by Dr. Thorderson, but Franklin did not have a position available with those restrictions; Franklin sent Wooten home.

¶ 6. Thereafter, Wooten filed her petition to controvert, and a subsequent motion to compel payment or, in the alternative, for an independent medical examination. After hearing arguments, the ALJ ordered that Wooten be examined by Dr. Mark Harriman. Dr. Har-riman performed an independent medical examination of Wooten on April 5, 2005. Dr. Harriman opined that Wooten had a normal exam, with no swelling and a normal range of motion. He further noted that he thought it was very unusual for Wooten to have a permanent two-pound weight restriction, given her type of surgery and healing. Dr. Harri-man recommended that Wooten return to work full time with no restrictions.

¶ 7. After hearing lay and medical testimony, the ALJ denied Wooten’s petition for permanent disability benefits. Wooten appealed the ALJ’s decision to the Commission, which affirmed the ALJ’s denial for permanent disability benefits. Wooten appealed the Commission’s decision to the Chickasaw County Circuit Court, which affirmed the Commission’s decision. Aggrieved, Wooten appeals arguing that: (1) the Commission’s reliance on Dr. Bigighaus’s and Dr. Harriman’s reports rather than Dr. Thorderson’s report was arbitrary and capricious, and (2) Wooten is entitled to permanent disability benefits.

STANDARD OF REVIEW

¶ 8. “It is well settled that the Commission is the finder of fact and if their findings are based on substantial evidence they will be affirmed.” Bracey v. Packard Elec. Div., General Motors Co., 476 So.2d 28, 29 (Miss.1985). “If the Commission’s decision and findings of fact are supported by substantial evidence, then we are bound by them even if we would have been convinced otherwise.” Neill v. Waterway, Inc./ Team Am., 994 So.2d 196, 199(1113) (Miss.Ct.App.2008). “We will only reverse the Commission’s rulings where findings of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious.” Levi Strauss & Co. v. Studaway, 930 So.2d 481, 484(¶ 10) (Miss.Ct.App.2006).

DISCUSSION

I. Whether the Commission’s findings were arbitrary and capricious.

¶ 9. Wooten argues that the Commission’s finding that Dr. Bigighaus’s and Dr. Harriman’s opinions were more persuasive than Dr. Thorderson’s opinion was arbitrary and capricious. She asserts that because Dr. Thorderson had examined and operated on her in the past and was in the best position to evaluate her condition, the Commission should have given his diagnosis and opinion more weight than Dr. Bigi-ghaus’s and Dr. Harriman’s opinions.

¶ 10. The supreme court has faced similar arguments. In Hardaway Co. v. Bradley, 887 So.2d 793, 796(¶14) (Miss.2004), the claimant argued that the doctor treating his injury should have been given more weight than two doctors performing independent medical evaluations. The ALJ acknowledged that the claimant’s doctor had been treating him for a longer period of time, but she found the other two doctors’ opinions more probative. Id. On appeal, the supreme court affirmed the Commission’s decision, which affirmed the ALJ’s decision, because its findings were based on substantial evidence, and it was not arbitrary and capricious. Id. at (¶ 16).

¶ 11. This Court went through a lengthy discussion and analysis with regard to this issue in Manning v. Sun-beam-Oster Household Products, 979 So.2d 736 (Miss.Ct.App.2008). In Manning, the claimant argued that an ALJ, when faced with opinions from two equally competent physicians, should defer to the treating physician, relying primarily on South Central Bell Telephone Co. v. Aden, 474 So.2d 584 (Miss.1985). Manning, 979 So.2d at 741(¶ 16). Upon reading Aden, this Court found no rule dictating that the ALJ is required to defer to the opinion of a patient-selected or treating physician. Id. at 742(¶ 20). Thus, this Court found no merit to the claimant’s argument that a treating physician’s opinion should be given more weight. Id. at 744(¶ 28).

¶ 12. Even more recently, this Court affirmed the Commission’s reliance on an independent medical evaluation over a treating physician in Daniels v. Peco Foods of Mississippi, Inc., 980 So.2d 360 (Miss.Ct.App.2008). There, the Commission heard testimony of both doctors, and it found the independent medical evaluation more persuasive because the independent medical examiner reviewed the patient’s history more extensively than the regular, treating physician. Id. at 365(¶ 16). This Court deferred to the Commission’s finding because the Commission is the finder and trier of fact, and “it is [the Commission’s] job to evaluate and weigh the evidence,” and affirmed the Commission’s ruling. Id.

¶ 13. A review of the above cases dictates that the Commission is not required to defer to the opinion and report of the claimant’s treating physician. It is permitted to rely on the opinion of an independent medical examiner, even if that doctor has only examined the claimant once.

¶ 14. In the case at bar, Dr. Bigi-ghaus performed the surgery on Wooten, and after continuously examining Wooten for approximately one-and-a-half months after her surgery, he determined that Wooten could return to work. Dr. Bigi-ghaus could be considered Wooten’s treating physician for this injury, as he examined Wooten more than any other doctor and performed the surgery on Wooten’s right hand. However, Dr. Thorderson placed Wooten on a two-pound, permanent weight restriction. In his deposition, Dr. Thorderson testified that the two pounds was an arbitrary number, and the restriction could be increased to three or five pounds. In order to resolve these conflicting opinions, Dr. Harriman was appointed by the ALJ to perform an independent medical examination. Dr. Harriman took x-rays of Wooten’s hand and reviewed Wooten’s medical history with respect to her right hand. In conclusion, Dr. Harri-man opined that Wooten could return to work with no restrictions. After reviewing the reports and testimony of each doctor, the Commission found that Drs. Bigi-ghaus’s and Harriman’s opinions to be more persuasive than Dr. Thorderson’s opinion. As this Court has repeatedly stated, the Commission is the finder and trier of fact, and “it is [the Commission’s] job to evaluate and weigh the evidence”; it is not ours. Id. We find that the Commission’s finding is not arbitrary and capricious, and it is supported by substantial evidence. Accordingly, this assignment of error is without merit.

II. Whether the Commission was correct in finding that Wooten was not permanently disabled.

¶ 15. Wooten argues that the Commission erred in not concluding that she was permanently disabled. She claims that the weight of evidence showed that she suffered a total occupational loss of her hand, requiring an award for permanent disability benefits. Wooten cites Meridian Professional Baseball Club v. Jensen, 828 So.2d 740 (Miss.2002) to support her proposition. In the ever popular Jensen, the supreme court ruled that “where a permanent partial disability renders a worker unable to continue in the position held at the time of injury, ... 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.” Id. at 747 (V21).

¶ 16. At the time of Wooten’s injury, she was employed as a rivet-machine operator with an average weekly wage of $455.98. After rehabilitating from surgery, Wooten contacted Franklin about returning to work as a rivet-machine operator. However, Wooten’s position as rivet-machine operator had already been filled. She then worked in the poly-glue department, earning an average weekly wage of $317.88. She testified, that given the permanent work restrictions placed on her by Dr. Thorderson, she would have been unable to return to work at Franklin as a rivet-machine operator. Wooten argues that this created a rebuttable presumption of total occupational loss which Franklin failed to rebut, thus entitling her to two hundred weeks of compensation.

¶ 17. In denying permanent disability benefits, the Commission reviewed the testimonies of Wooten’s doctors, Wooten, and a general manager at Franklin. Dr. Bigi-ghaus, Wooten’s treating physician, opined that Wooten’s surgically-repaired hand was completely healed, finding no tenderness or crepitation in his final examination. He concluded that there was no reason why Wooten could not return to work. This assessment was echoed by Dr. Harri-man based upon his independent medical evaluation of Wooten. Contrarily, Dr. Thorderson placed a two-pound permanent weight restriction on Wooten. On cross-examination during his deposition, Dr. Thorderson stated the intention of his diagnosis was to find that Wooten did not have any permanent disability. He assigned the weight restriction to prevent Wooten from having further, similar claims and to prevent her from hurting herself or others. More importantly, Dr. Thorderson testified that he arbitrarily selected the two-pound weight restriction. He stated that he had no reason why he chose two pounds, and he could have selected three pounds or five pounds. He further stated that he had no problem with Wooten lifting three pounds.

¶ 18. Permitting Wooten to lift three pounds would allow her to perform the duties of rivet-machine operator. Franklin’s general manager of their mechanism division testified that a rivet-machine operator would have to lift parts weighing 2.8 pounds at most, clearly within the three-pound limit placed by Dr. Thorderson.

¶ 19. In summation, all three doctors testified that Wooten could perform the duties of rivet-machine operator post-injury; two doctors opined that Wooten should have no work restrictions, and the third doctor stated he had no problem with a three-pound lifting restriction, which is more than the heaviest part Wooten would have to lift at Franklin as a rivet-machine operator. Thus, Wooten could have returned to work as a rivet-machine operator after her surgery.

¶ 20. Accordingly, we find that the Commission’s decision to deny Wooten permanent disability benefits is supported by substantial evidence. Therefore, this issue is without merit.

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

KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. MAXWELL, J, NOT PARTICIPATING.

      . Prior to her work at Franklin, Wooten held various jobs including sewing gloves, sewing children’s clothing, harness inspector and re-pairperson, and a sales clerk.

      . The ALJ also gave Franklin a credit for the temporary disability payments it was making to Wooten pursuant to a separate ALJ's order requiring Franklin to pay Wooten $90.75 per week, retroactively from June 1, 2004, until Wooten submitted to an independent medical examination or until further order of the Commission.